For those who fear confrontation with respect to Perak may lead us to the path of Thailand:
Democracies exist only because enough people were unwilling to be sheep, and brave enough to fight violent wars to achieve a share in power. [Page 227. Good and Bad Power: The Ideals and Betrayals of Government. Geoff Mulgan.]
I consider it as a game of war of attrition.
John Stuart Mill in his introduction to On Liberty writes:
It is proper to state that I forgo any advantage which could be derived to my argument from idea of abstract right, as a thing independent of utility. I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of man as a progressive being. Those interests, I contend, authorize the subjection of individual spontaneity to external control, only in respect to those actions of each, which concern the interest of other people. If any one does an act hurtful to others, there is a prima facie case for punishing him, by law, or, where legal penalties are not safely applicable, by general disapprobation. There are also many positive acts for the benefit of others, which he may rightfully be compelled to perform; such as, to give evidence in a court of justice; to bear his fair share in common defence, or in any other joint work necessary to the interest of the society of which he enjoys the protection; and to perform certain acts of individual beneficence, such as saving a fellow creature’s life, or interposing to protect the defenceless against ill-usage, things which whenever it is obviously a man’s duty to do, he may rightfully be made responsible to society for not doing. A person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for injury. The latter case, it is true, requires a much more cautious exercise of compulsion than the former. To make any one answerable for doing evil to others, is a rule; to make his answerable for not preventing evil, is, comparatively speaking, the exception. Yet, there are many cases clear enough and grave enough to justify that exception. In all things which regard the external relations of the individual, he is de jure amendable to those whose interests are concerned, and if need be, to society as their protector. There are often good reasons for not holding him to the responsibility; but these reasons must arise from the special expediencies of the case: either because it is a kind of case in which he is on the whole likely to act better, when left to his own discretion, than when controlled in any way in which society have it in their power to control him; or because the attempt to exercise control would produce other evils, greater than those which it would prevent. When such reasons as these preclude the enforcement of responsibility, the conscience of the agent himself should step into the vacant judgement-seat, and protect those interests of others which have no external protection; judging himself all the more rigidly, because the case does not admit of his being made accountable to the judgement of his fellow creatures. [On Liberty. Chapter 1. John Stuart Mill. 1859]
First of all, wow. Look at that. That is one paragraph. But at least, it is more readable than Kant’s impossible Critique of Pure Reason.
Secondly and more importantly, it is beyond doubt this particular paragraph of Mill is filled with utilitarian idea. He justifies compulsion by society on individual by doing the greatest good for the greatest number of people. Gee, what am I talking about. This is Mill after all.
I am not quite sure if I agree with Mill when he writes there “are also many positive acts for the benefit of others, which he may rightfully be compelled to perform.” This may refer to externality but reading the whole paragraph within the context set by the introductory chapter by Mill, his idea may go beyond mine. While do believe certain negative externality requires action — for instance carbon emissions with respect to climate change — Mill mentions common defense, which may or may not mean conscription. I do have certain distaste for free riders; yet, I do have problem utilizing compulsion in against free riders. Mill suffers no such issue by reverting to utilitarianism.
Nevertheless, I am relieved to read that a “person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for injury. The latter case, it is true, requires a much more cautious exercise of compulsion than the former.”
Indeed.
Mill writes further immediate after that paragraph. and it is more agreeable if I might add. I am reproducing it for the benefit of the readers here:
But there is a sphere of action in which society, as distinguished from the individual, has, if any, only an indirect interest; comprehending all that portion of a person’s life and conduct which affects only himself, or, if it also affects others, only with their free, voluntary, and undeceived consent and participation. When I say only himself, I mean directly, and in the first instance: for whatever affects himself, may affect others through himself; and the objection which may be grounded on this contingency, will receive consideration in the sequel. This, then, is the appropriate region of human liberty. It comprises, first, the inward domain of consciousness; demanding liberty of conscience, in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological. The liberty of expressing and publishing opinions may seem to fall under a different principle, since it belongs to that part of the conduct of an individual which concerns other people; but, being almost of as much importance as the liberty of thought itself, and resting in great part on the same reasons, is practically inseparable from it. Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow; without impediment from our fellow-creatures, so long as what we do does not harm them even though they should think our conduct foolish, perverse, or wrong. Thirdly, from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived. [On Liberty. Chapter 1. John Stuart Mill. 1859]
The ugly episode in Perak raises several issues revolving around the idea of separation of powers. One of the least discussed powers separation matters is closely related to the concept of federalism. The fiasco clearly highlights that the state civil service is practically dependent on the federal civil service. This dependency is abhorrent to the spirit of federalism and it must be ratified.
The dependency however is nothing new. The position of district officers, for instance, is a state post. Nevertheless, it is a common practice for members of the federal civil service to be seconded to those positions. This is also true for multiple other positions within states’ civil service.
Although the practice of secondment is permitted by the Federal Constitution, when secondment happens it does raise a question relating to conflict of interest. If a state government does not see eye to eye with the federal government, where exactly does the loyalty of these seconded federal officers lie?
The line of reporting is clear. For those holding state positions, they report to the state government but theory does not always translate into actual practice. No demonstration is more vivid than the ongoing case in Perak. Several deplorable instances that threaten the spirit of Malaysian federalism were observable.
One of it harks back to the early part of the political and legal conflicts when the state legal adviser of Perak acted as if he was an agent of the federal government. In the ruling involving Datuk Seri Zambry Abdul Kadir and Datuk Seri Nizar Jamaluddin, a judge even said that the neutrality of the state legal adviser should be taken with ”a pinch of salt”.
That really is to frame it rather too kindly when it is a fact that the person holding the office of state legal adviser is a member of the federal civil service seconded to the Perak civil service. In the conflict, the state legal adviser clearly suffers from a conflict of interest. With a federal government which imperfectly separates political parties from the State, it is not hard to imagine why that is so. His loyalty lies with the Barisan Nasional-led federal government, not to the state government as it should be.
It is absolutely possible for a member of a state civil service, as with any civil servant, to hold a political bias that is opposite to the administrator. A civil servant has all the rights to have that bias as any free individual. Nevertheless, that does not dissolve his or her professional duties.
A state civil servant is a professional and he or she must be able to execute any rightful orders of the state government regardless of his or her political bias. Or else, respectfully, the civil servant must resign out of an irresolvable conflict of interest, or be fired. By this premise alone, the action of the Pakatan Rakyat government in Perak to suspend the state legal adviser — and the state secretary — is only natural and is only right in the spirit of federalism.
If this contradicts any law of the land, then the law must be amended accordingly. The law is only a tool to a goal, no more, no less. It is the spirit that matters and federalism is very much a spirit of Malaysia. To hide behind the law to subvert the spirit of Malaysian federalism is to undermine the spirit of Malaysia.
The conflict of interest is one reason why the secondment exercise as currently practiced must be re-examined. In the name of federalism, each state needs to develop its own civil service so that the federal government does not hold any state to ransom.
Until March 8, 2009, there were not too many chances to prove this point. In times where the administrations of state government and the federal government originated from the same quarter, it was hard to pinpoint a finger on any action violating the spirit of federalism.
It was easy for a Barisan Nasional-led state government to want to do something when in truth it was instructed by a Barisan Nasional-led federal government to do something. This happens concurrently with Barisan Nasional’s deplorable attitude of making machineries of the State as its private property.
For so long — the conflation between state and federal governments as well as conflation between the State and political parties — that continued unchallenged. After over 45 years of Malaysian federation with Barisan Nasional in power, actual power eventually became centralized to threaten the very foundation of Malaysia, a 13-state federation. Actual power not only centralized at the hand of the central government to make Malaysia come closer to a system of a unity state that we are not, it also centralized power in the hands of Barisan Nasional.
While it is inevitable to see the division of state and federal governments in the context of Perak through the prism of partisanship, the division is affirmatively beyond partisanship and beyond Perak. There is a genuine need for such systemic change.
Federalism is about a system of check and balance and it demands that division. This demand will remain true regardless who is in power. It will always remain especially poignant when the federal government holds too much power in relation to state power.
First published in The Malaysian Insider on May 14 2009.
This started to sound like a sequel to a movie but Wong Chin Huat was still there in lock-up and the pressure had to be maintained. Unfortunately, a smaller group of people joined this one compared to the day before although as the night progressed, more members of the society including politically prominent individuals started to show up as the whole affairs dragged well into the wee morning. By the time I left close to 03:00, it had not ended yet.
This time, the police was more polite the first time around, requesting those attending the vigil to disperse. “I would advise you to disperse”. This is very unlike Wednesday when an officer shouted like a mad man.
Polite or not, for the police, it did not work. Freedom of assembly is a natural right of every free citizen, especially so when the assembly is peaceful and pose no hazard to public safety. Given this stance which I think many at the vigil hold, the next chapter was written in stone. The polite officer resigned and a mad man took over. A number of people wearing black and holding lit candles were arrested when the mad man announced to the world of his arrival. Others, they were simply far enough to be out of reach of the officers. They lived to fight for another day, so to speak. Well, another hour actually.
Anyway, I was there early and I can tell you that those who were arrested were prepared to be arrested. “If they want to arrest us, let’s not run away. Let’s be arrested.”
I said to myself, yeah, right. Speak for yourself. I do not want to be detained. I am a chicken, with capital C.
So, they were in and some who were not taken in hang around farther down the road, waiting for something else to happen. Some began contacting people for help. Not long thereafter, legal counsels started to show up.
A friend much earlier joked about the itinerary of the whole affairs. Meet at 20:30 at Brickfields’ KFC restaurant, at 21:00 at the police station and 21:30 inside the lock-up. For those that got arrested, that was more or less the schedule.
Just like yesterday after the first arrest, the size of crowd started to swell again. Not close to the size of the day before not respectable enough to probably make the police nervous.
I sort of relish having a protest organized in front of a police district headquarters. Though the group was small yesterday, it showed a sign that civil society is willing to rise up, even at the doorstep of a lion’s den. Well, I am exaggerating but you know what I mean.
MP Loh Gwo-Burne showed up. And then state assembly person Elizabeth Wong. DAP assembly person Jenice Lee who was arrested earlier in Ipoh for the big party showed up too, I think. The last elected official that was there as far as I know was none other than the man himself, MP Tian Chua.
I do not remember who joked about this but somebody highlighted that on Wednesday, DAP was on duty. On Thursday, PKR. Maybe PAS would come on Friday.
On Wednesday, lawyers were allowed to go in. It was a different story for yesterday; the police was playing hardball. They simply did not want to let the lawyers to see the detainees. These lawyers apparently were young guns on-the-job training to handle emergency arrests. So, they were new and likely inexperienced. That is probably the reason why the police stood their ground rather well.
A senior lawyer was there and she refused to interfere since she wanted to get these young legal aid lawyers to gain some valuable experience.
For those arrested earlier, they were placed in an open space. There was a roof and the space was well-lit but it was open nonetheless.
Probably out of frustration not given access to legal counsel, the detainees started the best thing of all: protesting inside of police compound!
How about that?
If you cannot protest outside, protest inside. Haha!
They sang Negaraku and the crowd outside joined them in chorus.
That got the police angry and there was a commotion after that. Shouting match occurred. People outside who were still free were worried about the whole effect but in the end, nothing happened. It was just one of those harmless confrontations that put pressure on the police to release them.
The police did not buy that and instead, the detainees were relocated to rooms inside some building.
And, the second round of arrest came.
“Saya bagi anda 3 minit untuk bersurai.”
“Saya bagi anda 2 minit untuk bersurai.”
“Satu minit.”
In a typical maniacal manner of a mad man, when time was up, he shouted, “Tangkap! Tangkap!”
In retrospect, the episode was funny but when I was there, it was not as hilarious as I currently find it.
We left and decided that we should adjourned to a nearby eatery and come back later if the detainees continued to be detained. But some legal counsels on duty stayed behind and unfortunately, they were pull in by the police.
We only found out about this when we were happy drinking out tea and coke in a restaurant. The senior lawyer was fuming mad upon finding this out. Some of us thought the police were making a big mistake. I suppose, for the legal aid lawyers, they all got more than they bargained for.
Around midnight, we decided to return to the police station. More lawyers from the Bar Council came and they launched 5 police reports against the police.
Around this time, Tian Chua showed up. And god, he looked terribly tired but seemed ready to be arrested yet again in KL after being arrested in Ipoh earlier.
Nothing eventful happened after that. I was up close to 03:00 until I decided I needed my sleep.
The next day, heh, as in right now, hundreds of lawyers are protesting in front of the Jalan Duta Courthouse.
A domino effect is underway and we will see where will this lead us.
Probably, nobody knew if Wong Chin Huat was actually locked up in Brickfields police district headquarters but that did not turn people off. Why Brickfields was a mystery of the day. I joked to a friend that it could have been that somebody threw a dice and decided which poor officers would have to suffer a candlelight vigil. Another question is, who was the dice thrower?
One thing was certain. For some people, it did not matter. What mattered was that Wong Chin Huat should be freed.
Over 50 people (I would not be surprised if the number reached 100) including journalists showed up eventually although at first, there were few people.
What do you expect anyway? It was supposed to start at 21:00 Malaysian time. No. That does not refer to UTC+8 mind you.
Those that showed up early got the honor of being arrested. Altogether nine of them all in the first round of arrest. Merely showing up probably did not cause their arrest; lighting a candle did that. Candles were also the reason why a second group endured arrest. Included in the second group was MP for Serdang. In total, 14 individuals were, well, placed under the care of the Malaysian Royal Police.
The way the arrest was conducted was funny in a sense. An officer, probably a high ranking officer because he brought with him a stick with white tip, did shout a warning. He said if people do not disperse by the count of 3, the police will arrest everybody.
He did count, only too fast. 1… 3. Barely a second passed before somebody could register, “oh, maybe it is time to leave”. Neurons do not quite work at light speed, I suppose.
A lawyer did come later and went in to discuss with the police about the first arrest. Once done, the lawyer answered questions from reporters. According to him, the police justified the arrest as a mean to discourage an even larger crowd from gathering in front of the police station.
Also interesting was that the police did not allow the lawyer to meet the detainees. They reasoned that the detainees did not specifically request for a lawyer. This is probably an important point: if you ever get arrested by the police, make it clear to them that you want to speak to a legal counsel.
It was newsworthy enough that Malaysiakini published the whole thing on their website.[1] It was newsworthy because it could be a precursor to what will happen tomorrow.
That scare tactics could have worked, if the arrest did not happen too early. Not too many people were there in the first place and many came late.
The same tactic was successful the second time. The police threatened to arrest anybody that was still standing in front of the station, unless the crowd dispersed by the count of 10. Being the chickenshits that these peaceful protesters are (me included), we dispersed. But like in any small peaceful protest or vigil or call it whatever you want that I have been to, crowd re-gathered nearby.
There was a game of cat-and-mouse for a time but nothing untoward really happened after that. No more arrest. And after all that, all were released before midnight.
If anything, this little protest will prove tame. Tomorrow in Ipoh will be another story.
In any case, it will be unfair to equate the cause of Brickfields’ little party with the cause of Ipoh’s party, which is expected to be massive . I do still take defecting as a right. It is not immoral.
Nevertheless, after all been said and done, politically, I would like to see an election in Perak. That would tie up a lot of loose end and allow us to move forward.
[1] — The police tonight arrested 14 people who had gathered at the Brickfields police station in support of activist Wong Chin Huat, but they were all released hours later. [Vigil: Police detain 14, all freed hours later. Wong Teck Chi . Malaysiakini. May 7 2009]