IT’S THE LACK OF LEGITIMACY, STUPID

Consent of the Governed

There is a proposal for Tun Mahathir to be Pakatan Harapan’s prime minister candidate to wrestle back the government following the infamous “Sheraton Move.” There are also calls that Muhyiddin Yassin be allowed to hold on to his usurper’s crown. This is to allow him to deal with the Covid-19 pandemic and economic crisis. In lobbying for numbers, parties have forgotten the people. The people, however, will not forget. They will also not forgive. Thus, a modification of Bill Clinton’s reminder to his campaign workers is appropriate - “It’s the Lack of Legitimacy, Stupid.” 

The most important factor is not who leads the government but who the governed wants to follow. Who has the consent of the governed?

Consent of the governed means the legitimate and moral right to use state power, which is only justified and lawful when consented by the people. Those who lack legitimacy does not have the right to rule.

De Facto Authority

Muhyiddin being appointed prime minister by the Yang diPertuan Agong has de facto authority. De facto authority means the capacity to maintain public order and compel obedience of the people by issuing commands backed by sanctions. The individual who fails to obey will be punished by a fine, go to jail or worse suffer physical harm by being caned or even death by hanging. De facto authority is the power of securing obedience over individuals seeking to avoid punishment.

Legitimate Political Authority

Legitimate political authority is the right to rule conferred by each individual citizen to the authority. The individual citizen voluntarily accepts as his duty to obey the authority for moral reasons. It involves the mutual recognition and affirmation of the moral status of each person in the society. To the extent that a society is ruled by an authority that has the right to rule it is an ideal moral community. Societies that have other types of authority are lesser forms of a morally ideal community.   

Political legitimacy is a basic condition for governing without which a government will suffer legislative deadlock and collapse. John Locke said that political legitimacy derives from popular explicit and implicit consent of the governed. Jean Jacques Rousseau said an attempt to rule without legitimacy is an attempt to exercise coercive power not authority. Even the most powerful and the most despotic government cannot hold a society together by sheer force. Therefore, most rulers prefer to be esteemed rather than feared. A legitimate state is less dominating over its citizens because the legitimate use of power minimizes the negative consequences of power. Governments, therefore, are produced by consent of the governed.

Reservoirs of Support

Legitimacy is very much a matter of the individual’s political outlook and lies “in the eyes of the beholder.” It is important to note that no state ever enjoys the complete support of the entire population. Even in the most legitimate state there will be those who oppose the regime.  There are always different levels of support. Legitimacy is explained as a reservoir of support. So long as the different levels of support like water in a reservoir is at a given level, political stability is maintained. If it falls below the required level, political legitimacy for the regime is endangered.

Muhyiddin’s has forsaken his reservoir of support

Muhyiddin face difficulties with four essential elements required for legitimacy: trust, fairness, values and democracy.

Trust: It is not easy to identify Muhyiddin’s reservoirs of support after he pulled Bersatu out of PH. Besides betraying the trust of his coalition partners, he has also forsaken the reservoir of PH supporters. In GE14, this was 48% of the popular vote. He only has 7 out of the original 13 Bersatu MPs (Tanjung Piai was lost in the by-election and the remaining 5 are aligned to Tun Mahathir). Muhyiddin has only Bersatu’s 5.95% of the popular vote to call his own.

Unlike business where you can use other people’s money, in politics you cannot rely on other peoples’ reservoir of support. UMNO’s 20.90% of the popular vote belongs to “Bossku”. This is on loan. It is not unreasonable to infer come 28 July, if Najib is convicted in the SRC case, this support is no more. If acquitted, Najib will want this support to reclaim the prime minister’s post. The PAS’ 16.82% of the popular vote is dedicated to the service of God with Tok Guru Abdul Hadi Awang charged with the temporal duty to convert Malaysia into a theocratic fundamentalist Islamic state. Muhyiddin is hard put to claim he has the majority consent of the governed.   

Fairness: Fairness requires the rule of law to be applied predictably and consistently. The discharge of Riza Aziz and acquittal of Musa Aman raises questions on the rule of law under the Muhyiddin administration.  

Values: Muhyiddin used state resources to entice MPs by offering minister posts, GLC positions and material rewards in return for political support.  Muhyiddin’s political survival is dependent on patronage. It appears the evils of patronage, rent-seeking and elite capture of the government will return with a vengeance. This undermine the legitimacy of his administration. 

Democracy: The avowed intention of Perikatan Nasional is the establishment of a super coalition of Malay nationalistic parties. We have not in 60 years of BN rule attained an acceptable level of social cohesion much less unity in our multiracial country. Now, PN has not even bothered to continue the pretense of the BN consociationalism in favour of an open unapologetic Malay supremacy ideology. This is not necessarily a healthy development. The dangers of ethno-nationalism, the divisiveness of racism, fears and resentment generated by their effect on ethnic minorities are tragically seen in the riots of Black Lives Matter after the death of George Floyd, Brexit and increased hate crimes. Social inclusiveness is under challenge.       

Opinion: Muhyiddin’s postponement of parliament sittings, failure to table essential post-Covid 19 laws; financial stimulus packages and expenditure for parliament approval stems from concerns over the support for him. Like Macbeth after killing King Duncan to seize the Scottish throne, suspicion always haunts a guilty mind. He may be more worried that the PN support may turn against him than the opposition from the PH MPs. 

Strong legitimacy is necessary to ensure stability and delivery of good public outcomes. States with weakened legitimacy devote more resources to maintaining their rule and fewer to effective governance.  A government with weak legitimacy results in a vicious cycle of declining outcomes. Policy initiatives by governments that lack legitimacy are more likely to fail. Legitimacy is required to galvanize Malaysians from all levels of society to make the sacrifices necessary to pull through the biggest challenge of our time. Muhyiddin’s lack of legitimacy hampers his ability to deal effectively with the Covid-19 pandemic and economic crisis.

Mahathir’s reservoir has dried up

Trust: Mahathir’s de factor authority ended upon his resignation as the 7^th prime minister. Although the Yang diPertuan Agong implored him not to do so, he refused to abide with the royal request. Long before that his legitimacy was impaired when he did not reciprocate Malaysians’ magnanimity in giving him a second chance.

Caesar did not see himself as a tyrant nor as a wolf but was feared he will become one because he eyed Romans like sheep. Mahathir like Caesar does not see himself as a tyrant, but eyed Malaysians in colonial racial stereotypes.  It is too ingrained in him to see Malays other than as “lazy natives”, Chinese as rich and greedy while Indians, Sabah and Sarawak natives are not in his sight. The reversal of ICERD, withdrawal from the Rome Statute of International Criminal Court, his reneging on the implementation of the PH manifesto and promised reforms, the playing up of racial fears to pull Malay support from UMNO to Bersatu and the detention under SOSMA of those accused of being LTTE Tigers affected his legitimacy. The five consecutive by-election losses culminating in the humiliating defeat in Tanjung Piai are evidence Pakatan Harapan under Mahathir’s leadership had lost substantial support. Mahathir’s reservoir of support had dried up long before he resigned.

Fairness: Reports now reveal Mahathir played a part in precipitating the “Sheraton Move,” although he did not agree to pull Bersatu out of PH or to accept UMNO and PAS as parties. He only wanted their MPs with the exceptions of a selected few. Wan Azizah honoured the power transition agreement in declining when the King offered the prime minister’s post to her as PH leader. Mahathir by resigning as the 7^th PM but in seeking to be re-appointed as the 8^th and now the 9^th is not living up to his end of the bargain.

Values: Mahathir in his second sojourn as prime minister was like an expert oarsman. While he faced forward, he was actually rowing the Malaysian boat backwards. The problems today are no longer those in 1971. It is not inter-ethnic inequality but intra-ethnic inequality especially amongst the Malays. One is always ready to accept almost any explanation except one: that the present state of corruption and kleptocracy may be the result of genuine error on one’s own part and that the pursuit of some of our most cherished ideals has apparently produced results utterly different from those one expected. The corruption and theft faced by the country is not due solely to the personal weaknesses of the individual. It is a product of the system when meritocracy, capability and performance are jettisoned in favour of unfettered discretionary powers to award contracts and jobs by one person unaccountable to no other. It is an awesome power to make one person a billionaire overnight and condemn another to a life of servitude. In such a system it is only natural that only the worse will get to the top. Mahathir did not dismantle this system as promised. You cannot have shared prosperity without a shared society.

Democracy: Mahathir when he believed he had the support of all 222 MPs across the divide to be the 8^th PM revealed he planned to form a government without political parties. Political parties are essential institutions of democracy. By competing in elections parties offer citizens a choice of governance and while in opposition they can hold government accountable. Only dictatorships like North Korea have governments without political parties.

Opinion: The PH leadership endorsed Tun Mahathir as PM in the second round before the King following the “Sheraton Move”. This was made in the heat of the moment. The PH leadership needs to reflect deeper in giving Mahathir their endorsement a second time.

Conclusion

The people’s mandate for reform have been thwarted in the past two and a half years. There are now calls for Anwar Ibrahim to be a statesman like Nelson Mandela by endorsing Tun Mahathir a second time. While Nelson Mandela was always opened to reconciliation and inclusive co-existence, he was uncompromising in his fight for rights and equality in his 27 years in jail. Anwar Ibrahim too has remained steadfast in his fight for reforms after 10 years in jail.

Anwar is a man more sinned against than sinned. Mahathir said he did not proceed with the transition of power because Anwar is too liberal. Anwar formed a multiracial party instead of a Malay race-based party. We all know Mahathir like Julius Caesar who said he was constant as the Northern Star, is firm and resolute in his views. How then can Anwar Ibrahim and Pakatan Harapan further the cause for reforms by compromising them. If Anwar Ibrahim and Pakatan Harapan endorse Mahathir as the 9^th prime minister, they will lose their own legitimacy. There are those who love Mahathir but we all love Malaysia more.  

William Leong Jee Keen

MP Selayang PKR

15 June 2020

Malaysia’s Diversity: Accommodation Not Assimilation

By William Leong Jee Keen

3rd February 2020.

Managing Cultural Diversity

Malaysians are tired of statements made this festive season that: it is wrong for Muslims to greet their Christian friends “Merry Christmas”; wrong for Muslims to attend “Ponggal” festivals; wrong for schools to put up “Tanglung” for Chinese New Year.

This is not the first time Malaysians are celebrating these festivals. Malaysians, know what to do. However, political rabble-rousers want to see whether this new government knows what to do with their agitation.

Unfortunately, the new government’s ambivalent response has not inspired confidence in its ability to manage our cultural diversity. If managed well, greater recognition of cultural diversity will enrich people’s lives. If left unmanaged or managed poorly, it can become the greatest source of instability, triggering conflict and taking development backwards.

UMNO’s Failed Attempts

UMNO leaders both before and after independence were aware this country cannot attain full development if it is divided along ethnic, religious and cultural fault lines.

Onn Jaafar tried to open UMNO’s doors to other ethnic groups but he was rejected by the members and the community for his efforts.

In 1991, Tun Mahathir launched “Bangsa Malaysia” under Vision 2020. 2020 is here but “Bangsa Malaysia” is nowhere in sight.

Onn Jaafar failed because the foundation for multiculturalism had not been laid then, without which, he was unable to overcome the emotive appeals of Malay nationalism. The Malay nationalism’s cry of “saving the Malay race” and protecting the “Malay homeland” following opposition of the Malayan Union in 1946 overwhelmed him.   

UMNO failed to shift nation-building from Malay nationalism to Malaysian nationalism due to a lack of political will. Political elites manipulated Malay fears and raised nationalist feelings for short-term gains. Also, political patronage, rent-seeking and corruption had set in.   

     

PH Must Come Out with both Policies and a Narrative

The PH leadership must come out with concrete policies and a narrative to counter the multiculturalism opponents’ arguments.

Talk of focusing on social, economic and political reforms without first addressing cultural diversity issues is fallacious. Managing cultural diversity is not about season’s greetings, attending cultural events or decorations. It is about inclusive policies on issues such as mother tongue education, vernacular schools, matriculation places, university admissions, scholarships, demolishing and building places of worship, finding jobs, securing work, accessing healthcare, and acquiring affordable homes. Another year has come, another cohort of young talents will face disappointment with their future sacrificed on the altar of preferential policies through no fault of their own.  

It is about providing public services irrespective of ethnicity and religion for each person to live a full and flourishing life, resetting political and institutional mechanisms so ethnic groups live and work together cohesively and share resources equitably.  

Changing policies without recognition and accommodation of cultural diversity is not reform. It is recycling old wine in new bottles while entrenching discriminatory practices.

The PH Narrative

The narrative must deal with the arguments against multiculturalism.

First, Assimilation Is the Best Approach to Deal with Diversity

No. Traditional approaches to social, economic and political equality have been based on assimilation. Groups are expected to take on the language of the dominant culture at the expense of their own and must sometimes deny their religions and other traditions to succeed. There is nothing wrong with identifying with a dominant culture but people should not be forced to make a stark choice between their identities and economic or political progress.

The Human Development Report 2004 states that cultural liberty is a vital part of human development because being able to choose one’s identity – who one is- without losing the respect of others or being excluded from other choices is important in leading a full life. People want the freedom to practice their religion openly, to speak their language, to celebrate their ethnic or religious heritage without fear or ridicule or punishment or diminished opportunity. People want the freedom to participate in society without having to slip off their chosen cultural moorings.

Assimilation without choice is not a viable or necessary model of integration.

Second, a State Is Restricted to One Homogeneous Ethnic Group

No. The idea of nation-building in 17^th and 18^th century Western Europe was to create a state for a single homogeneous ethnic group sharing a common ancestry, faith and culture. Prior to World War II, ethno-cultural nationalism justified racialist ideologies that explicitly propounded the superiority of some peoples and cultures and their right to rule over others. These ideologies, widely accepted in the Western world, underpinned domestic laws such as racially-biased immigration and citizenship laws as well as foreign policies for the conquest of colonies.[1]  

These ideologies caused more tragedy and misery than benefits. This resulted in suppression of ethnic minorities, often brutally, through state sponsored religious persecution and ethnic cleansing. These ideologies also resulted in every day exclusion and social, economic and political discrimination.

Despite the tragic and horrendous costs of such extreme strategies, there is almost no country that is homogeneous. According to the Human Development Report 2004, the world’s nearly 200 countries include some 5,000 ethnic groups, two-thirds have more than one ethnic or religious group making up at least 10% of the population. 20^th century history has shown that attempts to exterminate cultural groups or to wish them away have met with stubborn resilience. By contrast, recognizing cultural identities has resolved never-ending tensions.

The world recoiled in horror to Hitler’s fanatical and murderous use of such ideologies, the atrocities and genocides in Rwanda and the Balkans. Multiculturalism is the solution to resolve ethnic diversity issues. In the past it was assumed the only way to engage in this process was to impose a single undifferentiated model of citizenship on all individuals. But the ideas and policies of multiculturalism that emerged in the 1960s give effect to group-differentiated rights based on human rights, civil liberties and democratic accountability.

By this process, the dominant majority group is required to renounce fantasies of racial superiority, to relinquish claims of exclusive ownership of the state and to abandon attempts to fashion public institutions solely in its own image. Deeply rooted traditions, customs and symbols of exclusion and stigmatization of minorities are identified and removed.

For both practical and moral reasons, it is far better to accommodate cultural groups than to try to eliminate them or to pretend they do not exist.

Third, Recognition of Diversity Affects State Unity

No. Individuals have multiple identities that are complementary – ethnicity, language and race as well as citizenship.[2] Identity is not a zero-sum game. Loyalty to the state is not lessened by recognition of one’s cultural identity or any other identities. I am not less a Malaysian because I also identify with: my Chinese ethnicity, people from Selangor, residents from Selayang, with villagers from the kampongs, with families in the estates and plantations, with Christians, with followers of different faiths, with my schoolmates, with my colleagues, with fans of my football club and with members of the various groups I associated with. We do not because of one feature, an ethno-racial identity, shut out the many other individual identities that we share with people outside of race or ethnicity. We have more identities in common than differences. Kwame Anthony Appiah, philosopher and cultural theorist said: “Racial identity can be the basis of resistance to racism but let us not let our racial identities subject us to new tyrannies.”     

Countries do not have to choose between national unity and cultural diversity. Surveys show that the two can co-exist. These countries accommodate diverse cultures by building unity through fostering respect for identities and trust in state institutions.

Fourth, Recognition of Diversity Leads to Instability, Ethnic Conflict or Violence

No. There is little evidence to justify the political elites’ claims that instability or violent conflict is due to cultural or ethnic differences. This argument diverts attention from important economic and political factors. While culture is inherited, it is also socially constructed and chosen. Studies have shown that the root causes of conflict are rarely the cultures themselves. Recent research explains that what appears to be ethnic conflicts are actually struggles for control of valuable resources. They are often simply a resource grab by elite groups who manipulated ethnic loyalties for their personal ends.

The elites’ argument is a myth when viewed in its historical context. Will Kymlicka, the Canadian political philosopher best known for his work on multiculturalism said in one sense, multiculturalism is as old as humanity – different cultures have found ways of co-existing. Respect for diversity was a familiar feature of many historic empires such as the Ottoman Empire. Multiculturalism is about developing new models of democratic citizenship grounded in human rights ideals to replace earlier uncivil and undemocratic relations of hierarchy and exclusion.   

Fifth, Accommodating Diversity Will Dilute the Dominant National Culture

No. Multiculturalism is supportive of and complementary to the idea of a national culture while respecting other group identities[3]. The majority culture is already part of the national culture. Multiculturalism is extending this valued recognition to minorities. The predominance that the cultural majority enjoys in shaping the national culture, symbols and institutions should not be exercised in non-accommodating way on the minorities.

Multicultural nationalism recognizes the legitimacy of the majority culture, it denies the majority is entitled to prevent the accommodation of minorities simply because it runs counter to majority culture or majority preferences where it does not breach any democratic rights.

The majority and minority should stand in a two-way adaption, in which each may seek to have aspects of their core cultural identities preserved. Neither has a unilateral right to impose upon the other in a way that the other identity is not allowed to co-exist. Tariq Modood, one of the leading authorities on ethnic minorities in Britain, explains that multicultural nationalism is a form of integration which fosters “a sense of belonging” where a member of the minority is accepted by the majority as a full member of society with the right to feel that “he or she belongs.”

Multicultural nationalism recognizes the concerns of the majority ethnic group while accommodating ethnic minorities to provide a viable alternative to monocultural nationalism.

Sixth, Certain Ethnic Groups are More Likely to Develop Economically Faster than Others

No. There is no evidence of a causal relationship between culture and economic progress. Cultural determinism – the idea that a group’s culture explains economic performance – is not supported by econometric analysis or history.

Similarly, Professor Syed Hussein Alatas in his book “The Myth of the Lazy Native” said the idea of the lazy native was a colonial ideology to justify compulsion and unjust labour practices. Books such as UMNO’s “Revolusi Mental” and Tun Mahathir’s “Malay Dilemma” were an internalization of this colonial ideology and an extension of the negative stereotypes. It is unsupported by scientific evidence and a distortion of the Malay community.  

Conclusion

Social integration will not be achieved by requiring or forcing minority ethnic groups to assimilate into the dominant majority group. A multicultural society is one where people of different races, ethnicities and religions live together in the same community. It is a society that recognizes and values the cultural differences of its people. Multiculturalism is not only a better way it is the only way for Malaysians to live a better and flourishing live.

           

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[1] Will Kymlicka, “Multiculturalism: Success, Failure and the Future” Canada Research Chair in Political Philosophy Queens University

[2] Kwame Anthony Appiah, “Race, Culture, Identity: Misunderstood Connections.”  The Tanner Lectures on Human Values 1994

[3] Tariq Modood, “A Multicultural Nationalism?” Brown Journal of World Affairs Spring/Summer 2019 Volume XXV issue 11

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Breach of Confidence: The Public Interest Defence

William Leong Jee Keen

31 January 2020

The MAB Articles

Focus Malaysia published a series of articles about the future of MAB. Khazanah Nasional Bhd lodged a police report over the leakage of information. Focus Malaysia explained the articles were published because they were matters of public interest.

Focus Malaysia said Malaysians through Khazanah which is owned by the Malaysian government are the ultimate shareholders of MAB. Malaysians have a right to know what is happening to the national carrier whose values are being steadily eroded.

Public Interest Defence to Breach of Confidentiality Claims

Focus Malaysia has raised an important and interesting point on the defence of public interest by the media in relation to the disclosure of information in breach of confidential obligations by its informants or sources of the information.

The Importance of Media Freedom

I will not touch on the facts and issues of the Focus Malaysia’s articles of MAB because the case is under police investigation and is subject to potential litigation. Based upon a cursory research there is no Malaysian court decision touching directly on the public interest defence to claims for breach of confidentiality.

I wish to highlight some aspects of this defence’s development by the English courts for Malaysians to appreciate its importance for media freedom. The English judges have taken a robust approach in giving priority to disclosure of information which improves the quality of public debate and public opinion. Disclosure of matters of public interest serves to uphold democracy. It also acts as a check against abuse by those holding economic or political power. It is hoped that the Malaysian courts will give similar importance to media freedom in developing the public interest defence to breach of confidentiality claims. 

Development of the Defence by the English Courts

The equitable doctrine of breach of confidence seeks to protect confidential information provided by one party to another in circumstances which import an obligation not to disclose that information or to use it for unauthorised purposes. The rationale underlying the protection of relationships is to serve public interest. There are circumstances, however, in which the courts will refuse to protect information given pursuant to an express or implied duty of confidence on the basis that to do so would be contrary to other public interests.[1]

The approach in England has been to introduce a “public interest defence.” This requires the courts to balance the public interest in maintaining the confidence against a countervailing public interest in disclosure:

“…although the basis of the law’s protection of confidence is that there is a public interest that confidences should be protected by the law, nevertheless the public interest may be outweighed by some other countervailing public interest which favours disclosure.” [2] (per Lord Goff in what is famously known as the “Spycatcher Case”)

The Iniquity Rule

The public interest defence developed out of the “iniquity rule” in the 1857 case of Gartside v Outram[3] :

“The true doctrine is, that there is no confidence as to the disclosure of iniquity. You cannot make me a confidant of a crime or a fraud, and be entitled to close my lips upon any secret which you have the audacity to disclose to me relating to any fraudulent intention on your part: such a confidence cannot exist.”

The Court explained that no confidence comes into existence in respect of information of an iniquitous nature. A duty of confidentiality will not arise where the information relates to crimes or frauds. This is based on the public interest that confidential information may be disclosed to prevent the evil from occurring or to bring the offender to justice.

Misdeeds and Misconduct

In 1967, Lord Denning in the case of Initial Services v Putterill introduced the notion of “misdeeds” and “misconduct” to the iniquity rule:

“Counsel suggested that this exception was confined to cases where the master has been guilty of a crime or fraud, but I do not think that it is so limited. It extends to any misconduct of such a nature that it ought in the public interest to be disclosed…

The exception should extend to crimes, frauds and misdeeds, both those actually committed as well as those in contemplation, provided always – and this is essential – that the disclosure is justified in the public interest.” [4]

Just Cause or Excuse

Lord Denning further extended the scope of the public interest defence in the case of Frazer v Evans where he said:

“I do not look upon the word ‘iniquity’ as expressing a principle. It is merely an instance of a just cause or excuse for breaking confidence. There are somethings which may be required to be disclosed in the public interest, in which event no confidence can be prayed in aid to keep them secret.”[5]

By providing the test of “just cause or excuse” there was no longer a requirement for the commission of a crime, fraud or misdeed and that a notion of “public interest” can justify the breach of the duty to keep the information confidential.

In Malone v Commissioner of Police of the Metropolis (No.2), McGarry VC supported the extension of public interest defence. He decided that the defence is not restricted to cases of the claimant’s acts of misconduct or misdeeds:

“There may be cases where there is no misconduct or misdeed but yet there is a just cause or excuse for breaking confidence. The confidential information may relate to some apprehension of an impending chemical or other disaster, arising without misconduct, of which the authorities are not aware, but which ought in the public interest to be disclosed to them.”

The Balancing Test

The public interest defence has since developed to a stage where the courts adopt a new methodology of assessment. Once it has been determined that a claimant holds a reasonable expectation of confidentiality in the information, the court carries out a second stage of analysis of the claim by carrying out a balancing of all factors pertinent to the case to decide whether to maintain the confidentiality or to allow publication.

Lord Philips explained in HRH Prince of Wales v Associated Newspapers Ltd as follows:

“The test to be applied is not simply whether the information is a matter of public interest but whether, in all the circumstances, it is in the public interest that the duty of confidence should be breached.” [6]

Constraining effect of Informed Public Opinion on Power Abuse

The key reason for the ultimate balancing exercise to fall in favour of publication will usually be the contribution that the publication has made, or is expected to make, to knowledge on some matter of public interest. In principle, the readily availability – often through the media – of the fullest range of information on matters of public concern and controversy is presumed to facilitate the emergence of an informed public opinion among members of the general population. Consequently, it promotes a constraining effect of public opinion on the arbitrary exercise of political, economic or cultural power. The concept of the “public interest” then serves as a measure of the contribution that publications make to the informing of individuals as citizens in the democratic polity. The service offered to the readers as the recipients of the information becomes the primary justification for media freedom.

Malaysian Courts and Media Freedom

Although the public interest defence has not been raised in any Malaysian case on claims for breach of confidentiality, the defence has been accepted in defamation cases.

The Federal Court in Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee accepted the defence of qualified privilege for the publication of defamatory statements in the public interest. Azahar Mohd FCJ said that the Reynolds privilege defence does not only apply to journalists but also to individuals:

“In our view, the public interest defence should by no means synonymous with journalists or media publications. On the ground of public interest, there is a sufficient basis it should be in the same way extended to anyone who publishes or discloses material of public interest in any medium to assist the public better comprehend and make informed decisions on matters of public interest that affects their lives.”[7]

The Malaysian Courts have also upheld the importance of the defence of fair comment in defamation cases in maintaining the freedom of speech and to adopt a generous approach to ensure the values are safeguarded. S Nantha Balan J (as he then was) said in Khairul Azwan bin Harun v Mohd Rafizi bin Ramli:

“As for the defence of fair comment, it was submitted that the right of fair comment is one of the fundamental rights of free speech and is of vital importance to the rule of law on which we depend for our personal freedom (Slim v Daily Telegraph Ltd [1968] 2 QB 157 (CA) at p 170). In this regard, it is said that in a society which greatly values the freedom of speech and safeguards it by constitutional guarantee, it is right that the courts when considering and developing the common law should not adopt a narrow approach to the defence. The courts should adopt a generous approach in its full vigour. Cheng Albert v Tse Wai Chun Paul [2000] 4 HKC 1, Li CJ at p 6E-G”[8]

The English Courts have developed the defence of public interest to breach of confidentiality claims. over an extended period of time. The Courts in Malaysia have not had the opportunity to do the same with. It remains to be seen that when such cases do finally reach the Malaysian Courts, whether our Malaysian judges will adopt a similarly robust approach for the protection of media freedom and public interest. Such an approach is necessary because of the “watchdog function” the media plays for the greater good of the nation.

In the same vein the media must also exercise responsible journalism. One important way of testing by the journalists themselves is by asking whether there is a public interest in the journalistic work to evaluate what the impact of the publication will be. How will publication affect the people – who will suffer and who will benefit? Does the wider society benefit from the publication? This is a difficult judgement and each case must be judged carefully on its own facts. At stake is not just the potential victims of poor reporting, but the reputation of the journalists and the media organization.

In the final analysis journalists and media organizations will have to be able to preserve their integrity and maintain their ethical balance to justify they are acting in the public interest whether in a court of law or in the court of public opinion.

   

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[1] Kaaren Koomen, Breach of Confidence and the Public Interest Defence: Is it the Public Interest? Kaaren Koomen has concisely traced the development of the public interest defence by the English courts which I have reproduced in this article.

[2] Attorney General v Guardian Newspapers Ltd [1988] 3 AER 545 at 659 per Lord Goff.

[3] Garthside v Outram [1857] LJ (Ch Div) New Series 113 at 114

[4] Initial Services v Putterill [1967] 3 AER 145 at 148

[5] Frazer v Evans [1969] 1 QB 349 at 362

[6] HRH Prince of Wales v Associated Newspaper Ltd [2006] EWCA Civ 1776 at [68]

[7] Syarikat Bekalan air Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 6 MLJ 187 at 202 [33] FC

[8] Khairul Azwan bin Harun v Mohd Rafizi bin Ramli [2017] 9 MLJ 205 at 245 [81]

SHOULD MALAYSIA WAIT UNTIL NOVEMBER FOR TRANSITION?

WILLIAM LEONG JEE KEEN

Epitaph for Pakatan Harapan’s Reform

When Pakatan Harapan went to the polls in GE14 there were two fundamental promises:

-                  First, to carry out reforms in its Manifesto - the Buku Harapan consisting of 5 Pillars, 10 Promises in 100 Days, 60 Promises in 5 Years, 5 Special Pledges;

-                  Second, the leadership of the Pakatan Harapan Government will be a tag team with Tun Mahathir becoming the 7^th Prime Minister and Anwar Ibrahim becoming the 8^th Prime Minister.

The people voted Pakatan Harapan knowing full well the strengths and weaknesses of both men. Tun Mahathir with his strengths, tenacity and experience will be able to deliver on some but it would be unrealistic to expect him to deliver all of the promises during the first period with him as prime minister. Anwar Ibrahim in the second period as architect of the reform agenda is expected to deliver the rest of the promises, especially his proposal for affirmative action based on needs.

Definitely, the public expects this tag team of two to deliver the substantial reforms promised.

Tun Mahathir and his cabinet is now in the ring wrestling with the problems left behind by the previous regime. The country is in a bigger mess than was generally known before GE14. The going is tougher than expected. Tun says he needs more time because the problems are worse than was thought. One year is not enough, he said two years. Now he says he would hand over after APEC in November. There are people who asking him to stay on for the full term.

When should the transition take place? This is tonight’s topic.

The Pakatan Harapan government, the people voted in, is a partnership. Unlike the normal partnership where both partners work together at the same time, it is a partnership where one partner works first and then hand over to the second. The timing for the transition can be determined if we ask this question - what will the Pakatan Harapan Government’s legacy be at the end of its term?

If the transition is badly timed and the reforms failed it may read like this -

“Here lies one who meant well, tried a little, failed much:

surely that may be his epitaph, of which it is a crying shame.”

This is adapted from a quote used by Anne Kruger, acting managing director of the International Monetary Fund in her speech describing the failure of policy reforms in emerging market economies. She took the quote from one of the lesser known books of Robert Louis Stevenson called “Across the Plains”. The original quotation is this:

“Here lies one who meant well, tried a little, failed much: surely that may be his epitaph, of which he need not be ashamed.”

I changed the last part because an individual’s failure harm only himself even if he did not try too hard for which he need not be ashamed. But a reformer’s policy failure is catastrophic – millions of people suffer as a result – the poor, the jobless, the hungry.

In the case of Pakatan Harapan, it is a crying shame because the people presented Pakatan Harapan with the chance to carry out change on a golden platter. This should not be squandered.

The Reform Process

To appreciate when is the time for transition it may be useful to understand the reform process.

Reform does not happen automatically upon voting in the government. Voting in a new government is only the initial step in the reform process.

Based on a large body of policy reform studies by the Organization for Economic Co-operation and Development (“OECD”) the reform process requires overcoming tremendous political and technical challenges. Dealing with obstacles from policy design to strategies for reform adoption, implementation, monitoring and adjustments until the policy receives public acceptance. The challenges facing would-be reformers falls widely across both time and space.  The OECD concludes that making reform happen requires the government to “seize the moment” to successfully implement reforms.

Therefore, the question posed in tonight’s forum is not about choosing a date in the calendar like you are fixing a meeting, a dinner or a wedding. It is not whether May or November is better. It is about the seizing the moment where the conditions for change is right. It is determined by the changing conditions of the situation.

For now, this window of opportunity for change is rapidly closing.   

Meant Well

Going back to Robert Louis Steven’s quotation of Pakatan Harapan the would-be reformer’s legacy – the first part - “he meant well”: we have the foreword in the Mid-Term Review of the Eleventh Malaysia Plan. The Prime Minister wrote reforms include achieving inclusive growth must be carried out:

“The euphoria that greeted our success in taking over the Government after the historic 14^th General Elections on 9^th May 2018 came with a caveat – sweeping reforms and accountability must be the order of the day…

…As such, reform includes improving the governance, accelerating innovation, boosting productivity moving industries up the value change, enhancing the wellbeing of the rakyat, particularly the bottom 40% of the household income group (B40) and achieving inclusive growth.”

The Pakatan Harapan Government means well in carrying out its promises of reforms.

Inclusive growth requires dealing with the problems of identity politics which have risen its ugly head. Instead of inclusiveness, we are having greater social exclusion, more frequent hate speeches, bigotry, racial and religious intolerance. The polemics have grown to alarming proportions in the period after GE14. The political opponents and those who oppose the reforms have expectedly used race and religion in an attempt to win back popular support.  

Tried a Little

The second part of Robert Louise Stevenson’s quote – “tried a little.” The Pakatan Harapan Government carried out a part of the promises or is in the process of doing so but found it difficult to do all of the 60 promises. Unfortunately, in the past 19 months, good intention was not enough. It did not fully translate into action. As a consequence, a question of creditable commitment to the reforms has arisen. Tun Mahathir fuel this lack of commitment when he said:

“Actually, we did not expect to win, and we made a thick manifesto with all kinds of promises… We need to make sacrifices to fulfill our promises. If we can’t fulfil them, we will need a good reason that is acceptable to the people” - Dr Mahathir

This has caused much concern.

Failed Much

The third part of the quote - “failed much” depends on whether Anwar Ibrahim has sufficient time to design, implement and win over the citizens to accept the reforms, if not the reforms will fail.

The first determinant on the timing is the Twelve Malaysia Plan. The Twelve Malaysia Plan covers the period from 2021 to 2025. This is to be tabled in Parliament in the third quarter of 2020. Anwar must surely be the one tabling the 12MP because this is the roadmap for the reforms during his tenure as prime minister.

The second determinant on the timing is whether Anwar is given enough time to complete the reform process:

·                 Electoral mandate: Popular support for the reform. For Anwar to push through the reforms there must be a strong electoral mandate. There was a strong electoral mandate given in GE14 but the support has turned against Pakatan Harapan as shown in the Tanjung Piai by-election. Therefore, the transition must take place before the people’s goodwill and patience with the Pakatan Harapan Government runs out.

·                 Effective communications: There must be sufficient time given for Anwar to carry out consistent coordinated efforts to communicate and persuade voters and stakeholders on the need for the reforms and the costs of non-reform;

·                 Solid research and analysis: To put an end to emotional appeals on race and religious differences, of objections based on stereotypes of the different races, unsound unscientific based arguments, prejudices and stigma, OECD suggests that an evidence-based and analytically sound case for reform serves both to improve the quality and enhance the prospects for reform adoption. Anwar needs the time to carry out solid research and analysis of the root causes of the problems and to convince the stakeholders on the wisdom and benefits of the solutions;

·                 Leadership: According to OECD all assessments on making reform happen point to the importance of strong leadership. Successful reform requires government cohesion. If the government is not united around a reform proposal, it will send out mixed signals and opponents will exploit its divisions and defeat is usually the result. The call for strong leadership does not mean a top-down iron fist approach. Successful leadership is about winning consent from all stakeholders rather than securing compliance through compulsion. This takes time;

·                 Dealing with Opponents: It pays to engage with those who will be most directly affected by the reform. Inclusive, consultative policy process are no guarantee against conflict, but they seem to pay dividends over time, not least by allowing for greater trust among the parties involved. In dealing with the opponents of the reform, it need not involve compromises on the essentials of the reform, it is often possible to improve the prospects of particular groups that will be affected by a reform without contradicting its overall aim;

The third determinant of the timing is the political cost for reforms.

The IMF has published a note in October 2019 entitled “The Political Costs of Reforms: Fear or Reality.” Reforms have been successfully implemented and governments rewarded by grateful voters when the government acts swiftly at the outset of its term to exploit its “honeymoon” period. Overall gains and benefits to the people materializes gradually such that the reforms early in the term will show benefits at re-election time.

The IMF found that major reforms are associated with electoral costs when implemented in the year prior to an election. The results show a decrease in vote share of the coalition and reduction in the chance of the incumbent leader of the coalition being re-elected. This is because reforms may generate gains only in the longer term while they may engender short-term adverse distributional effects. This can prove electorally costly to the incumbent.

Time and efforts are needed to engage those most affected by reforms by mitigating the potential social and distributional costs. Finally, credible political commitment to the reforms including strong ownership and enhanced dialogue to garner support from business and civil society are key.

Making the Partnership Work:

If we take into account all these considerations the period for the transition to take place is limited. November 2020 may be too late. By then the one favourable moment in time to effect change may be gone and lost forever.

This country is in dire straits. Tun Mahathir and Anwar gave us hope when both agreed to bury the hatchet to work for the good of the country. In return the people put the fate of this country into the hands of this partnership. Pakatan Harapan is now the glue holding this society together. To save this country the mutual trust and confidence of the partners in each other, in this partnership, must hold.  At this crucial stage, we need this partnership to carry us through the rough seas of reform to the safe port of peace, unity and prosperity.

We are all tired of sex videos, gutter politics, bigotry, charges and counter-charges of racial prejudice and discrimination, you boycott my business, I boycott yours, frogs jumping in and out, back-door governments and back-door deals. We need sanity, rationality, good common sense and goodwill to pull all of us together. We are all in the same boat let’s stop shooting holes into it. If we continue, we will sink together. We need Pakatan Harapan to hold on together. Pakatan Harapan must hold tight onto the hands of the people. The people have given their trust to Pakatan Harapan.

We pray that our Pakatan Harapan leadership take charge and ensure the reforms this country, desperately needs, are implemented. To do this, a timely handover is important. I am sure you and I, all of us, want a smooth and certain transition.

Thank you,

William Leong Jee Keen

13 January 2020