The Malaysian Experience: A Case Study of Non-independent Judiciaries in Asia

GUEST COLUMNISTS - Malaysia Today

REFLECTIVE NOTE 5

Niseko Kutchan

Introduction

On the surface, Malaysia appears to be a dynamic and progressive South East Asian nation well positioned to achieve great economic heights in the future as other Asian nations within the region continue to produce healthy GDP growth rates. Blessed with an abundance of natural resources and multi-cultural diversity, a superficial overview of Malaysia would suggest that the government has done remarkably well to promote racial tolerance where so many others have failed, and in the process improved the nation’s economy, symbolized by the Petronas Twin Towers and ultra-modern Kuala Lumpur International Airport. Without doubt, the person responsible for Malaysia’s increased recognition on the global scene was the very vocal ex-Prime Minister Dr Mahatir Mohammed, who served from 1981 till 2003. Dr Mahatir and his counterpart Lee Kuan Yew were leading exponents of Asian values, and claimed that the Asian ‘way’ of achieving greater economic prosperity required ‘stable’ governments instead of adopting liberal democratic policies. This reflective note will examine the historical background of Malaysia’s judiciary and developments which led to its current non-independent state, as described in “Constitutional Values in Turbulent Asia” by Lee (1).

Malaysian Legal System – From Rule of Law to Rule by Law

Akin to Australia, Malaysia was colonized by the British empire, and its legal system duly absorbed much of the form and shape of the common law. When Malaysia achieved independence in the 1960’s, it coincided with the Cold War. As such, communist ideology was rampant in the nation, especially among its Chinese residents. At that time, because Malaysia was still under significant British influence (2), it sought to permanently eradicate communism. The Internal Security Act (ISA) was specifically drafted for this purpose by warranting arbitrary detention without trial for persons involved in communism. Although the draconian ISA shook the very foundations of rule of law itself and encouraged the rise of authoritarianism, Western democracies such as America turned a blind eye as long as the government supported its cause by promoting anti-communistic rhetoric (3). As a result, the ISA still remains in force today, albeit for different purported reasons such as protection of ‘national political stability’ and ‘racial harmony’. In fact, it is used by those in power to quell political dissent and limit freedom of expression. Therefore, it can be said that the ISA and other related laws altered Malaysia’s legal and political climate permanently and provided ripe conditions for dictatorial leadership. Although legislative motives were often ulterior, the Malaysian judiciary gave it the benefit of the doubt and did not proceed to rule the ISA unconstitutional. This was to come at a great cost to the independence of Malaysia’s judiciary, as explained below.

Transformation of the Malaysian Judiciary

Tun Salleh – ‘Calibration’

The Malaysian judiciary did not appear to waver against the tide of authoritarianism in the country until the infamous incident of 1988, where the highest judicial officer of the land, Tun Salleh, along with two other senior Supreme Court judges were suddenly removed from office (4). Dr Mahatir was a central figure in the debacle which stemmed from an action challenging the validity of his narrow win over an-intra party rival during the UMNO (United Malays National Organisation) (5). The personal stakes were high for Dr Mahatir and he could entertain the possibility of losing while his case approached its trial date before a full Supreme Court led by Tun Salleh. Acting swiftly by applying political pressure and cunning, Dr Mahatir was able to manipulate the Article 125 of the Malaysian Constitution to architect the removal of Tun Salleh. Judicial officers brave enough to allow an appeal by Tun Salleh were subsequently ‘mysteriously’ dismissed, and replaced by cronies of Dr Mahatir. As such, it is apt that renowned QC Geoffrey Robertson described the episode as one of the most despicable manoeuvres in modern history (6).

Anwar Ibrahim – ‘Validation’

Just when commentators thought that Malaysia had seen its most controversial legal and political episode of the century culminate in the Tun Salleh case, Dr Mahatir pulled another stunt that attracted even more public and international outcry when he had his then deputy Prime Minister Anwar Ibrahim sensationally removed from office in 1998. Ironically, Anwar was hand picked by Dr Mahatir to as his successor, but the two disagreed over how to respond to the economic crisis that gripped the nation in 1997. Many believed that Anwar sought IMF (International Monetary Fund) assistance at the chagrin of Dr Mahatir because the latter was embroiled in rampant corruption and IMF monetary aid procedures first required transparent accounts. Dr Mahatir was growing wary of Anwar’s increasing popularity, especially among the Malays, and eager to protect himself and his cronies. As such, he had Anwar sacked by the day and detained by night, invoking the ISA before Anwar could rally any support. The events that transpired after resembled a legal circus, with Anwar being charged with sodomy (7), adultery and corruption. Adding insult to injury, Anwar was physically abused while in custody, refused habeas corpus and ultimately given a ten year concurrent sentence by Paul Augustin J despite glaring factual inconsistencies that would not satisfy the balance of probabilities, much less prove the case beyond reasonable doubt. Naturally, Augustin J was keen to avoid the same fate that befell Tun Salleh. In response, Anwar’s supporters held large rallies that were quelled by force and even Al Gore (then the US Vice President) brought up the issue and praised the ‘brave Malaysian people who took to the streets’ during an APEC meeting in Kuala Lumpur, further souring US –Malaysian relations.

Future of the Malaysian Judiciary

Both cases illustrated above show that the Malaysian Judiciary has lost its independence. Anwar’s case is particularly disturbing as it represented a blatant violation of human rights, and in a sense validated the efforts of ‘under-the-table’ political dirty work which set the wheels of judicial ‘non-independence’ in motion since 1988. While Dr Mahatir continues to trumpet Asian values and claims that dual-party systems are not tailored for developing countries, he has perverted the meaning of Asian values to effect his own political survival. In the process, as observed by Lee, a non-independent judiciary has been created and this cannot bode well with the confidence of foreign investors who expect disputes to be adjudicated in a just fashion. I believe that the incorporation of Asian values into common law should only manifest in stricter laws and harsher penalties (i.e. corporal, capital punishment, length of jail sentences) and not in a completely biased way of construing the law to the benefit of those in power. To this end, at least there is integrity within the judiciary where fair trials are afforded. The future of the Malaysian legal system does seem bleak and will only serve to drive investors away to other rivals within the region, thus reducing the competitive edge of Malaysia to its detriment.

Conclusion

If Malaysia intends to achieve sustained economic progress, it needs a revamped judiciary. That seems highly unlikely without a change of government because the current system does not facilitate the opportunity for change. Many Malaysians want to avoid a repeat of the 1969 racial riots and bloodshed at all costs and are thus tentative to push for reforms, fearing national ‘instability’. This may have led to educated Malaysians migrating away from home, causing a brain drain. As such, this is a condition other emerging Commonwealth nations can learn from and try to avoid because they share a similar colonial past. The independence of Singapore’s judiciary must also be questioned, but it will experience lesser adverse effects because its demographics and geographical region is smaller so easier to control. However, this does not present a sustainable method of progressing indefinitely as people at the grassroots level will eventually begin to think critically. When enough people share the same sentiments, they will be emboldened to effect change.

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END NOTES:

1. H.P. Lee, “Constitutional Values in Turbulent Asia” (1997) 23(2) Monash Law Review 375.
2. The British still had economic interests such as petroleum in the nation.
3. H.P. Lee, “Constitutional Values in Turbulent Asia” (1997) 23(2) Monash Law Review 375.
4. Ibid.
5. The leader of UMNO will naturally become the leader of the nation under Malaysian law to reflect local racial demographics.
6. H.P. Lee, “Constitutional Values in Turbulent Asia” (1997) 23(2) Monash Law Review 375.
7. Homosexuality is outlawed in Malaysia.

Negate Not The Hard Work

No clear punitive action is taken against the guilty in any AG’s report. For this, the CID can play an important role.

HAVE you ever worn a flak jacket? In January 1964 when I was flying navigator in an Auster spotter plane over the Tawau-Tarakan border drawing Indonesian fire and radioing their positions back to our “artie”, I did wish I had one on. But, thank God, the Indonesian fire was feeble and a flak jacket was unnecessary.

A couple of weeks or so ago, I was under fire, again a feeble one, from a coterie of three government MPs because of my Aug 12 column The fence that eats the rice which alluded to what a very senior ACA officer had told me about police corruption.

These MPs, including one self-proclaimed “good Muslim”, obviously did not read my Aug 12 column and my Utusan Malaysia Sept 3 reply to one Baharuddin Idris with any understanding, or else they wouldn’t have opened their traps the way they did.

But, never mind, they gave a number of my friends a good laugh over how awash they were.

The “good Muslim” alluded to my position in Genting Berhad as proof of corruption and lack of integrity and revealed his ignorance that Genting is a large conglomerate with interests spanning diverse non-gambling activities such as an oil field and four power stations in China, two power stations in India and one in Sepang. It has struck gas in Irian Jaya and the Natunas in Indonesia. It’s prospecting for oil and gas in Morocco.

Diversified interests

It has large plantations in Malaysia and Indonesia, a housing development complete with a golf course and a hotel in Kedah; the list is long.

Muslims in the Genting Group are engaged only in its many non-casino businesses. The revenue in 2006 from these non-casino operations alone totalled RM3.2bil – nothing derisive by any standard!

So you see, my friends, how difficult is the fight against entrenched corruption? You sometimes get flayed even by government supporters! The fight has always been fraught with the danger of malefice. In one of my early columns on corruption, I wrote how a police clerk in Klang suggested in the mid-1970s that I should be shot for being a pain in the neck to the corrupt. Tun Abdul Razak, Tun Hussein Onn and I were branded as closet communists by followers of a powerful politician awaiting corruption charges in the mid-1970s – despite the irony of it.

A top judge reportedly told a group of friends in Mecca that the whole thing was a Jewish conspiracy to get rid of a forceful Malay leader and that I had lent myself to it because I was a member of the “Free Mason” movement. And to think that I didn’t even know I was!

Our three MPs can do better by joining in the fight against corruption, for it is the right thing to do. For these MPs, it would also be falling in line with their party leader, the Prime Minister, who has again reiterated that he wanted the police force to be cleansed of wrongdoings and that he would continue the fight against corruption. Or are they not with him here?

Our relative freedom of expression means that it would be wrong for me to make an unjustified statement and, if I have done so, I will apologise unreservedly. That is also the right thing to do but, as it stands, I have no reason to disbelieve my source of that information on the police – a top ACA officer. We’ll wait and see.

But, have you noticed that since my column of Aug 12, there have been no public altercations between the IGP and the Deputy Minister of Internal Security? Coincidence perhaps, but this is as should be since they are the same Minister’s right-hand men.

And Datuk Seri Nazri Aziz suddenly announced that the Police Complaints and Misconduct Commission (IPCMC) – still draft, mind you – was ready for feedback from several NGOs and he could see the Bill coming before Parliament at the end of the current session. Coincidence again, maybe, but we can wait awhile to see how closely it will hew to the effectiveness envisaged by the Royal Commission.

My house was burgled on Sept 5. I lost a DVD player, three speakers, some DVD discs and a bunch of keys. But I wasn’t really crestfallen because the moment I rang up the police to report, patrol cars, the investigation officer, the dog and forensic teams and several high-ranking officers swarmed my house. They were certainly on the ball. Three beautiful fingerprints were lifted, hopefully not my maid’s. Even the IGP contacted me. I felt nostalgic for my old PDRM.

At first, the heavy police presence worried my neighbours who thought that I was being arrested for being a pain-in-the-neck critic! When they got the true picture, relief and envy followed that the police had shown me so much concern. To all the officers concerned, thank you for your confidence-building response!

Poor Nurin Jazlin – after being kidnapped for 28 days she was found killed in an unspeakable way by a sexual pervert in PJS 1/48. How the little one must have suffered from pain and fright, not comprehending why her life could change so quickly, so horribly!

I have said before that there are predators out there in the guise of men, and we tempt the fates if we are so cavalier about our children and grandchildren’s safety. It’s not safe out there for unaccompanied children. That message should be driven home to all parents and teachers.

Monitoring immigrant workers

The lack of control over the legal (let alone the illegal) immigrant workers’ movements quite rightly worries some enforcement officials. We must realise that many of the males are deprived of normal opportunities for sexual gratification.

While not saying that one of them is the weirdo responsible for the latest child-murder, I do hope the Internal Security Ministry will find a way through this.

Fifteen years ago when there were many foreign construction workers in the Subang Jaya area, their employers consented to placing them in a camp supervised by several retired senior police officers who registered and controlled their egress and ingress. This can still be done and made mandatory after a proper study to ensure the workers’ comfort and to iron out potential problems. The workers can be transported to their places of work as is done, I believe, in Singapore.

The Nurin case brings to mind the case of five-year-old Nazrin @ Yin which had a happy ending. In my Sunday Star column of April 22 Finders not keepers, I wrote, “If we do not show such people (kidnappers) that their act of depriving a family of its member is a serious crime ? our streets will be even less safe in a short while.”

Another issue that gripped our attention recently is the annual litany of apparent malfeasance exposed by the Auditor-General’s Report.

Nothing resolved

I could feel the disgust of friends as they flayed the Government for allowing the apparent malpractices exposed in annual AG’s reports to go on year after year ostensibly without proper resolution. No clear punitive action was taken against the guilty following last year’s no-less-damning report. Tan Sri Ambrin Buang and his auditors have done well again but lack of enforcement and Cabinet follow-ups may again negate all the hard work.

The ACA DG has announced that his agency had commenced investigations and that we should see the results soon. Good for him. It’s about time our faith in the system is restored. If there are plausible reasons for some of the outlandish purchases, then we should be informed to dispel our bad perception of government’s governance.

But the CID also has a role if it wants to play it. If the allegations smack of criminal breach of trust, cheating or any of the penal code offences, it’s the department’s duty to investigate without waiting for a report to be lodged. Explanatory statements made to the auditors and the Parliamentary Public Accounts Committee by ministry and departmental officers are admissible in evidence.

Wilful malfeasance must be adequately punished so that others will be sufficiently deterred. The AG’s report bears out the perception that in government spending, we sometimes do not get our money’s worth!

And if, as suggested by Datuk Shahrir Samad, it is not that the civil service has not improved but that “the new ways of implementing projects – the direct negotiations and turnkey method” are the culprits, then the rules must be tightened to restore the image of the public services.

One Race, Two Sets of Views

The Star Online
Insight: By JOCELINE YAP

What do the “three pillars of the Chinese community” or the so-called “banana Chinese” have to do with where the Chinese vote will go in the next general election? Quite a lot, actually.

CORPORATE figure Rita Sim wears several hats but the one she seems to wear rather passionately these days is that of executive director of the Chinese vernacular newspaper Sin Chew Daily.

Sin Chew is the top-selling Chinese paper in the country. It not only makes money, but it is the most powerful voice in the stable of Chinese papers.

Even Education Minister Datuk Seri Hishammuddin Tun Hussein courts the paper because he needs Sin Chew's cooperation to air policies on Chinese schools.

Today, 95% of Chinese children attend Chinese schools. More importantly, said Sim, the Chinese media (six in the peninsula and eight in East Malaysia) is part of what is known as the “three pillars of the Chinese community”.

The other two pillars are the Chinese schools (1,291 SRJKs and 60 independent schools) and the Chinese organisations or hua zong (7,000 registered clan, guild and business groups).

According to Sim, who is also deputy chairman of the MCA think-tank Insap, anyone who wishes to understand the Chinese social and political sentiment has to first understand the Chinese who subscribe to the concept of the three pillars (G1) for the simple reason that they make up 85-90% of the 6.5 million Chinese in the country.

The remaining 10-15% are, for want of a better term, referred to as the English-speaking group (G2).

The G2 encompasses those who are not Chinese-educated; they speak English and include a large number of Christians, the peranakan and also those who are part of the Lions and Rotary Clubs set.

Sim and Insap director Fui K. Soong have done quite a bit of research on the two groups.

“People often talk about the Chinese as though they are one homogenous entity but they are not,” said Soong.

The two groups are quite distinct although they overlap in some traits and issues.

But what distinguishes the G1 from the G2 is that the latter does not subscribe to the three pillars concept even if some of them have begun sending their children to Chinese schools.

To the G1, Chinese education is part of their socio-cultural life and even their identity as a race. Chinese associations and Chinese media also form part of that identity.

But the G2 who send their children to Chinese schools do so for largely pragmatic reasons. They think these schools offer a better standard of teaching and that it is useful to learn an additional language.

The G2 are more likely to read English and Malay papers than Chinese papers and their social life and networking do not revolve around the traditional Chinese associations.

The G1, said Sim, are distinguished by their relative sense of self-sufficiency. They do not depend on nor do they demand too much of the government. Many run their own businesses, mostly small and medium scale enterprises or SMEs.

Fair treatment

Hence, political stability and a good economic environment to work and live in are very important to the G1 and they expect the powers-that-be to provide that climate for growth.

“They want the government to be fair and not to interfere too much in their businesses. Basically, this group wants to be left alone.

“They think they can take care of themselves as long as there aren't too many barriers or interference,” said Sim.

That is why schemes like the Northern Corridor Economic Region and even the Iskandar Development Region, to some extent, do not excite the G1. They think the NCER, which is about logistic and infrastructure building, benefits the GLCs rather than SMEs like their own.

The G1 also see many issues from their own narrow perspective. For instance, the crackdown on pig-farmers in Malacca was not just about the authorities regulating pig-farms but a threat to Chinese business interests.

At the height of the pig farming issue in Malacca, Alor Star MP Datuk Chor Chee Heung could not walk into a coffeeshop in his Kedah constituency without being bombarded with comments.

It was taking place down south but Chinese businessmen in Kedah were riled up as though it was happening at their doorstep.

“One day, I walked into the coffeeshop and I thought ‘die, man, I'm going to get it’. They saw it as a move against the community,” said Chor.

The downside about people in this group is that they tend to live in their own ethnic bubble – they attend Chinese schools, read Chinese papers and, as Soong noted, some of them probably know more about what is happening with political personalities in Taiwan than, say, Umno or PAS.

The Chinese-educated have long labelled the English-speaking group as “bananas,” meaning they are yellow outside (Chinese), but white inside (pro-Western culture). Or, as the Hokkiens would put it a little more explicitly, the G2 folk “chiak ang moh sai” (have eaten too much Western s**t).

There's no denying that the G2 are more open to Western ideas and ideals.

“Their ideas of governance, democracy, role of the media and even elections are influenced by the West, namely Britain and the United States. They like to say these are universal ideals even though half the world does not subscribe to the way the Americans and British think,” said Soong.

And given that the general election is looming on the horizon, the question most asked is how these two groups will vote.

Soong said the G2 are issue-oriented. They are influenced by issues and their votes swing from one election to another. They are mostly middle-class, articulate and prone to take issues to the press and in recent years into the Internet.

Incidentally, Gerakan's base lies mainly with this group.

The Chinese, it is often said, are quite inscrutable about their politics but not this group. They are not afraid to air their political views or who they will vote for.

“They are so articulate about their grievances that people think, ‘oh dear, the entire Chinese community is upset’.But actually, their views reflect mainly those in this English-speaking group,” said Soong.

The G2 have been the most critical of the ruling party in recent years.

The Christians in the G2 are particularly concerned about the issue of Islamic state.

According to Soong, the survival of the common law and the secular state is very important to this group because it guarantees their modern lifestyle and for the Christians, the freedom to practise their faith.

“Their fears about the Islamic State is very real and emotional because they see it as a threat to Christianity. The fear comes from deep in the gut,” she said.

The G1 have their own grouses but their concerns are somewhat more diverse.

“At least 30% of them are hardcore opposition supporters at anytime. This group, even if you sent them to heaven and back, will still vote for the opposition, especially the DAP,” said Soong.

Within the G1, there are also about 25% hardcore MCA supporters who will sink or swim with the party.

Of the remainder, 10% are deemed indifferent to politics and elections, leaving about 35% who are known as the swing voters.

They are the ones whom political parties woo like crazy during elections because their votes can determine the result. The swing voters are also very issue-oriented and would react to things like controversial statements from Umno leaders.

Chinese schools issue

The G1 are generally uncompromising when it comes to Chinese education. The MCA and Gerakan took a beating at the polls during the 1980s because this group felt the government was unfair to Chinese schools.

Many of them now feel that their struggle for Chinese education has been vindicated with the rise of China as a global powerhouse.

They point out that even the US News magazine recently reported that learning Chinese would rank 12th among the 50 things to accomplish in one's lifetime to improve one's quality of life.

The Chinese schools issue has not been this stable in decades, something many credit to the confluence of two key politicians.

On the one hand, there is Datuk Seri Ong Ka Ting, the first MCA president to really understand the community's convictions about Chinese education, hence, his commitment to the issue.

On the other is Hishammuddin who has been more open to Chinese schools than any other education minister in history.

Economic opportunities are another top concern while recent years have seen a rise in concern about crime and public security.

This group's fear about the Islamic State has less to do with its potential impact on their respective religions than on how syariah law will affect their economic interests.

But the issue of fairness underlies the concerns of both groups.

As Chor put it: “Whether it's education, business or local services, the Chinese just want fair treatment.”

If there is anything homogeneous at all about the Chinese, it is about fairness for everyone.

Fair polls involve more than just ballot boxes, says Suhakam chief

The Star, Sunday September 9, 2007

KUALA LUMPUR: Free and fair elections involve more than just ballot boxes, voter registers and campaign posters, said Human Rights Commission chairman Tan Sri Abu Talib Othman.

He said for an election process to be "free", citizens must have the right and opportunity to choose without intimidation from any party.

"Each voter should be able to cast his or her ballot free from intimidation, violence, administrative action or fear of retribution," he after delivering his keynote address at the Human Rights Day 2007 conference themed "Human Rights and Election on Sunday.

Abu Talib touched on several concerns, which dampened the electoral process, including the electoral rolls system, which he described as one of the most criticised aspect, especially when it came to allegations of phantom voters.

"Measures which have been taken by the EC such as checking one's registration status through the commission's website and the likely use of indelible ink in the next election are highly commendable.

"However, there should be better coordination between the National Registration Department (NRD) and the EC so that dead voters are expunged from the electoral roll as soon as the death certificate is issued," he said.

He said all eligible voters should also be automatically registered.

Abu Talib also noted that most polling stations were not disabled friendly, which served as a deterrent to the physically challenged from exercising their voting rights.

He said access to the media remained a serious problem with opposition parties, and urged the EC to consider a mechanism of assuring fair distribution of media access for all candidates and political parties.

On the same note, he also called for a balance to be struck between security, civil rights and freedom when drafting laws pertaining to the Sedition Act, Official Secrets Act, Internal Security Act, the Police Act and Societies Act.

"There are cases where opposition parties were refused police permits to hold political ceramah. In two cases the application for registration of political parties were rejected by the Registrar of Societies on grounds of threat to public order and national security."

Abu Talib also stressed that there should not be an unfair use of public resources for campaign, citing a recent by-election campaign in which the Government announced allocation of funds and development projects in that constituency to gain political leverage.

Malaysia Constitutional Monarchy: A Symbol of Identity, Continuity, Unity and Strength

PUBLIC LECTURE BY HIS ROYAL HIGHNESS RAJA NAZRIN SHAH, RAJA MUDA OF PERAK DARUL RIDZUAN, AT THE KHAZANAH NATIONAL DEVELOPMENT SEMINAR ORGANISED BY KHAZANAH NASIONAL BERHAD ON SEPT 3, 2007, IN TUNKU ABDUL RAHMAN PUTRA MEMORIAL, KUALA LUMPUR

50 YEARS OF NATIONAL DEVELOPMENT AND NATIONHOOD

Assalamualaikum Warahmatullahi WabarakatuhSalam SejahteraBismillahi Rahmani Rahim
Beta bersyukur ke hadrat ILAHI kerana dengan izin dan Rahmat dari Nya juga, Beta dapat berangkat untuk menyampaikan Titah Utama sempena Seminar Pembangunan anjuran Khazanah Nasional Berhad.Khazanah Nasional Berhad telah mengambil inisiatif menganjurkan seminar dan siri pidato umum sempena negara menyambut ulang tahun kemerdekaan kali kelima puluh. Khazanah kali ini, memilih mengadakan Seminar di Memorial Tunku Abdul Rahman, sebagai penghormatan dan usaha untuk mengingatkan warga akan jasa bakti seorang putera bangsa yang telah dinobatkan taraf sebagai Bapa Kemerdekaan. Inisiatif Khazanah amat dihargai malah harus dicontohi oleh badan-badan koperat dan niaga yang lain. Bahawa dalam memenuhi tanggung jawab membangun dan mengembangkan ekonomi negara, entity perniagaan turut bertanggung jawab menyemaikan rasa patriotisme warga terhadap negara bangsa. Bahawa usaha bina negara tidak hanya terbatas kepada aspek pembangunan material tetapi turut mengandungi elemen bina semangat dan suntikan roh.

1. I am delighted to have this opportunity to address such a distinguished audience, at such a stellar event, and on such a lovely evening. I believe that Khazanah Nasional Berhad has performed a great service to the Malaysian public by embedding this national development seminar into its 2007 Global Lectures. What more fitting way can there be to celebrate our fifth decade of nationhood than by seeking, in Khazanah's words, to "add depth, self-reflection and a renewed sense of direction of where Malaysia is heading or should head into the future". I hope that my contribution this evening will amply serve the three purposes that have been set out.

2. As an after dinner keynote speaker, I try to follow three rules. The first rule is that as it has been a long day for most of you, I should try not to speak too long or be too weighty. The second rule is that as you have all just had dinner, I should try to say nothing that will give you indigestion. The third rule is that as it will soon be your bedtime, I should try not to say anything that will keep you up all night. I will try my best to follow these three rules. I cannot, however, promise not to break any of them. The subjects that I will speak on this evening - that of development and nationhood - are ones that are difficult to treat in a routine and light-hearted manner. What we are speaking about is the essence of our collective welfare and existence for the next fifty years, and this is never a trivial matter.

Introduction

3. For all of our remarkable successes, we cannot afford to underestimate the problems and challenges we will face in the future. They are onerous and taxing, and we must be prepared for the occasional setback. Many countries have failed or are failing at dealing with them. We also cannot underestimate the effort and perseverance that is needed. We must be prepared to continue to make sacrifices, delay self-gratification, and live well within our means. We must be ready to admit that we do not know everything and to be committed to learning from others.

4. The costs may seem high, but then so too are the payoffs. Realising a developed, unified and integrated Malaysian nation is a tremendously pleasing prospect. Once we have shown the ability to manage our affairs and lift ourselves to the full potential that the Almighty intended, we will be able to make the world around us a better place. We will have gained the moral authority to speak and be heard. Moral authority does not come from might or 'divine right' but from a job well done.

Development

5. In short, national development and nationhood are not very good subjects to debate about just before going to bed. They have a tendency to ignite passions, fuel debates and stir action. They overturn existing ideas. They exert pressures, create tensions and give rise to controversies. They set into motion the wheels of change, both small and great and positive and negative. All of these will entail disruptions to the existing order. To a large measure, this cannot be helped. Throughout history, we have witnessed titanic struggles between progressive and reactionary elements of society. In many ways, they are critical antecedents to the process of national transformation.

6. And this is the way it should be. What is development after all, but the instigation of progressive, creative and beneficial change! It is change in the way the economy generates and distributes value and wealth. It is change in the way public institutions serve their constituents. It is change in the way the citizenry think, behave and act. Great leaders are defined precisely by their ability to lead their countries through these transformative changes. Those who can do this and do this well are remembered.

7. Development entails change, and rapid development entails rapid change. Which countries have developed as a result of a strong opposition to change? Which countries have risen to global prominence by seeking to stay the same? The answer is none. No country has developed by avoiding change. No country has garnered influence by clinging to the past. Every country that has developed has done so through constant internal change and renewal.

8. What this means is that if we have a love for the ordinary, the orthodox and the status quo, development will elude us. If we are unwilling or unable to learn and to improve the way we live, the way we think and the way we behave, development will be impossible. Once our bellies are full, it is easy to become self-satisfied and over-confident. Malaysia has accomplished a great deal in the developing world. It is an upper middle income country. It has a high development index. It has started to export capital and create employment in other countries. But there is a great deal more that we can and must do. After all, our per capita income is still less than twenty percent of the average developed country.

9. The desire for stability is, of course, perfectly understandable. Wholesale instability rarely ever contributes to the national good. Stability, however, must be managed in a productive tension together with change. It should not be at the expense of positive and reformative change. This again brings into sharp focus the role of leadership. Good leaders are able to strike a consensus and implement change even in the face of stiff resistance.

10. There are those who simplistically argue that we can 'solve' all our problems by returning to some past era. This kind of selective thinking is not only erroneous but solves nothing. It is mere escapism. Franklin D. Roosevelt, one of the more visionary and thoughtful US presidents, once said that "eternal truths will be neither true nor eternal unless they have fresh meaning for every new social situation". I agree. We should appreciate the past but our hope must look to the future, in the "new social situations" that emerge. If there is one lesson of history, I believe this is it.

11. If we truly aspire for development, then our 'talk and walk' cannot be cheap. Our sights and standards must be set high, and they must be kept high. There will be those who will seek to lower them. Our policy cannot be to 'aim high and fly low', much less to 'aim low and fly lower'. There will be those who will try to convince us that we should do so. As far as the Malaysian people are concerned, good enough must not be good enough. Only good is good enough. We need to breed a culture of real excellence.

12. We must be careful to distinguish between fact and fiction, and between what is authentic and artefact. We must be clear that development is not purely linked to how much money we have or how many modern buildings and highways we can construct. Per capita income can be a very deceptive indicator of development. There are countries today with per capita incomes that are more than twice that of Malaysia but whose female citizens are prevented from achieving their full potential. There are countries with the finest state-of-the-art buildings that money can buy, ones that can even change their shape every day, but where unemployment and poverty claim up to 20 per cent of the population.

13. We have been tremendously fortunate. The level of economic activity in this country has, for most of the last five decades, been high, while unemployment has been low. We have created a market for foreign workers, both for the skilled and unskilled. This is as much a land of opportunity for them as it is for us. And we have used our resources to good effect. As you all know, we have an excellent track record in eradicating poverty -- from 52 per cent of all households in 1970 to less than 6 per cent in 2004. Efforts are now being made to wipe out the scourge of absolute poverty altogether. But we need to do more.

14. Of all the enemies of development, probably none is greater than apathy and indifference. For the past fifty years, this has colloquially been known as the 'tidak apa' attitude. Every level of leadership in government, every educator, captain of industry, parent or private citizen who does not care about high standards being set and maintained is infected with this deadly virus. And they condemn this country to a state of mediocrity. Things cannot just be biasa. They have to be luar biasa.

15. Indifference and apathy cause us to seek to achieve only the bare minimum. In economics, this is known as satisficing behaviour or behaviour that is sufficient to keep stakeholders content but no more than that. It does not believe in or reward those who strive, compete, take risks, innovate, sacrifice and achieve. Instead, it encourages those who mark time, avoid work, shirk responsibilities and worship the commonplace. If Malaysians are absolutely serious about development, they cannot be complacent and indifferent. If they are, then they are a part of the problem and not the solution.

16. No country has ever achieved development without making hard choices. We need to understand that quality development involves making bold decisions and being committed to follow-through despite difficult opposition. It means rejecting sub-standard thinking and conduct. It means using the best information available to make the most rational and efficient public policies.

17. There is nothing particularly mysterious or magical about development. It is the result of a chain of cause-and-effects that are the result of right incentives, right penalties and right governing institutions. It requires active voluntary participation from all segments of society. There has to be broad and collective interest in performance and improvement. It thrives in an open and information-rich environment. It is a major, if not the, key product of education, which transmits not only knowledge and skills but also creates positive and productive values and behaviour.

18. In short, development is transformative, forward-looking, dynamic and engaging. It leads to the creation of a vibrant population, one that is open, inquisitive, creative, inclusive, but, at the same time, socially and psychologically resilient and secure. If any of the above characteristics are not present in society, it should be a primary cause for worry. Great pains should be taken to understand the causes and consequences. More than that, it should be a spur to massive action.

19. When development efforts fail, as they sometimes will, the answer is not to give up or slow down. It is to shore up public confidence and proceed to correct matters. The first response to developmental failure should be to take responsibility. Every person who occupies public office has a fiduciary duty to discharge. A fiduciary duty imposes an obligatory trust that requires the highest possible standards of duty to care. That duty is not optional and a violation of that trust is something that must be considered extremely grave.

20. There is only so much that laws can do to regulate behaviour. There must be social conditioning as well. The Japanese concept of 'giri', which roughly translates as a moral duty or burden of obligation, still permeates much of society, although it is said to be on the decline. Giri governs all types of relationships, including those in authority, peers, clients and subordinates. Those who hold high public or private office will often resign to take responsibility for a failure or disgrace even though they themselves may not have done anything wrong. They place their office and the trust that is placed in them ahead of themselves.

21. The second response to development failure is to understand what went wrong and to analyse what can be done. The late Professor Syed Hussein Alatas believed that intellectuals played a constructive role in development by defining problems and offering solutions. I agree. But in today's environment, intellectuals are only one source of public policy analysis. In addition, private think tanks, industry groups, non-governmental organisations and community groups contribute to an active, healthy and informed debate in policy space. The diversity of opinions on any subject is just as important as a well-developed understanding of the issues.

22. The third response is, of course, to take concrete and committed action. In order to promote development, political, economic and social institutions must be dynamic learning organisations. They must have the ability to internally adapt and innovate without having to wait for some external stimulus such as a crisis or an executive order before something is done. The problem with crisis-driven change is it often leads to hasty and ill-advised decisions that either cannot be followed-through or which have poor results.

23. As anyone who has ever been in a position of authority knows, there can be strong resistance to change even where a problem is widely recognised and the need for a solution is clearly apparent. Apart from the apathetic or just plain lazy, there are those who are antipathetic or openly hostile to change because their livelihood or interests are threatened in some way. It would be easy to dismiss the latter's perspectives as illegitimate and ride roughshod over them. This, however, would not be the mark of a developed country. It would violate the spirit of inclusiveness. We must treat each other with civility. We must seek to understand and give due respect to each other's interests and, as far as possible, attempt to negotiate mutually agreeable outcomes.

Nationhood

24. Allow me to now make some remarks on nationhood. In the course of nation building, it is not unusual to create certain myths or narrow interpretations of fact and experience. These represented realities or 'imaginings' act as a kind of lubricant to reduce unnecessary friction and conflict among social groups. Useful as these are, they gradually become worn out and become less effective over time. Thus, I am intrigued by the question that Khazanah has incisively asked in its concept paper, namely, "Are we what we imagine ourselves to be or are we living parallel realities between our existing state and what we think we are?"

25. I wish I had more time to delve into this question in depth. Suffice it for me to observe that there seem to be many Malaysians who do believe that reality, or at least their perception of it, differs from the conventional descriptions of nation. The reason for this is not hard to comprehend. Development, as I have said, entails change. As the basic needs of a country's citizens are met, as they become more educated, urbanised and sophisticated, as they are empowered by information technologies, it is inevitable that their thoughts and aspirations also change. This has happened and is happening in other countries.

26. We should take this positively. Social change is no more than the result of our success in transforming a closed and traditional society to an open and modern one. The opening of the Malaysian mind is a major achievement on our part and we should not want to turn back the clock no matter how inconvenient or more complex it now becomes. It is highly doubtful that we can ignore them in any case. Globalisation is whittling away at traditional concepts of nationhood. More than just markets, foreign influences are instrumental in shaping values, beliefs and attitudes. We will need to carefully manage these influences. We will need to greatly strengthen core values, beliefs and social cohesion.

27. So what do we do? I have spoken many times on the importance of upholding the Federal Constitution in keeping the nation united and cohesive. I do not wish to belabour the point but without this founding document and the rule of law, as some have suggested, there may not be a seminar like this in fifty years time. Left unattended, the pressures are likely to have built to such a point that the entire concept of nationhood is brought into question.

28. Development does not just relate to standards of living of ordinary citizens. It also encompasses public and social institutions. These include the executive, legislature, judiciary, public service, corporate sector, society and, yes, even the monarchy itself. Let me take the last of these as a specific case in point.

29. Malaysia is a constitutional monarchy which operates on the basis of parliamentary democracy. The monarchy in Malaysia is an integral part of the country, a symbol of identity, continuity, unity and strength. It is a symbol of identity because it is a national institution, one that distinguishes this country from all others. It is a symbol of continuity because the monarchy in Malaysia is an old institution and provides a sense of historical significance to the people. It is a symbol of unity because it is a focal point for citizens of all races, religions and political persuasions to rally around. And it is a symbol of strength because it exemplifies the virtues of justice, mercy and honour. Contrary to some opinion, the Malaysian monarchy is not all form and no function.

30. Before I go further, allow me to make a short digression. Over the last five centuries, many monarchies around the world have disappeared because Rulers took their status as a divine right rather than a responsibility. They did not bother to re-evaluate and reinvent their roles as guardians of the welfare of their subjects and, not surprisingly, did not retain the public's acceptance and trust. Monarchies came to be closely associated with autocracy, megalomania, tyranny, cruelty and feudalism. This despite the fact that in the past 100 years, leaders of all kinds, communist, socialist, democratic, republican, militaristic and even religious, have arisen who have displayed these qualities and a lot more besides. Regardless, modernisation and progress have become intimately linked with democracy and pluralistic political processes even though the reality is that the relationship is less than perfect.

31. The monarchies that have survived - and I include Malaysia's among these - have done so because they have evolved in line with social progress and contribute to public life. They have evolved by accepting the reality of, and placing themselves above, partisan politics. They contribute to public life by redefining their role as that of helping to uphold justice, maintain peace and resolve conflicts between contending parties, in much the same way as judges serve society. They function as the voice of reason, moderation and good governance, especially if there is extremism or chauvinism. In this way, the monarchy strengthens the institutions of governance and enhances, rather than detracts from, the democratic process.

32. For the monarchy in Malaysia to continue to function effectively as one of the main national axes around which society pivots, it must remain fresh and vital by fulfilling the role expected of it. It is an often overlooked or under-appreciated fact that the monarchy in Malaysia is supposed to play a productive role by being a healthy check and balance in the system of governance. The Federal Constitution mandates the monarchy to be the guardian of the just rule of law, an impartial arbiter in the democratic process and an overseer over the pillars of state. Some believe that the Rulers are supposed to do so only in a purely ceremonial sense, but I would argue that this contradicts the true spirit, if not the letter, of the Federal Constitution.

33. While the monarchy is required to act on the advice of the executive, it must also uphold the principles of good governance and the rule of law, with credibility and impartiality. To do otherwise would be to undermine its integrity, as well as that of the Federal Constitution. What this means is that for the monarchy to effectively discharge its responsibilities, it will need to have avenues for genuine and in-depth consultations with the executive. This should pose no problem, however, given the common and unswerving aim of advancing the interests of the nation. This unity of purpose will also help ensure that the relationship will be cooperative and not marred by open confrontation.

Conclusion

34. As we celebrate our fiftieth year of independence, it is only natural that we would want to reflect on past struggles and achievements. It is normal to reminisce, to feel nostalgic and, most of all, to be thankful. On more than one occasion, we have walked very close to the edge of the cliff without falling off. Things could have turned out very differently for the country if it were not for the Almighty's guiding hand and blessing.

35. Tomorrow you will have a full day of discussions on Malaysia's economic, human capital, social and international development. You will hear from some of the best thinkers and doers Malaysia has to offer. I believe there has to be a good balance between reflecting on past glories and assessing future challenges. I would encourage all of you to look forward as much as backwards, and be as much prescriptive as descriptive. I look forward very much to reading the summary of discussions and conclusions, and I bid you all a very good evening and a pleasant rest.