This is the text of a speech given by Tommy Thomas at a Forum with the above name on Tuesday, 2nd October 2012 at 8.00 p.m.
Madam Chairman, Ladies & Gentlemen:
I extend sympathy and best wishes from all right-thinking Malaysians to the brave individuals behind Suaram for standing firm against the harassment, intimidation, threats and bullying by the mighty power of the mighty State.
So why has Suaram been singled out since this July for this terrible treatment? Because of Suaram’s courageous pursuit of truth on the commissions and other monies paid out by defence contractors to certain Malaysians in the sub-marine deals.
The reason given by the politicians for investigating Suaram is that it receives funding from foreign sources!
Let me state at the outset : To my knowledge, there is no law passed by our Parliament that prohibits any association or organization from receiving monies from any source to fund its activities or use them for any other purpose.
But what is really shocking is for Malaysian politicians, whose principal source of income, is using other people’s money, to make this claim. It is the height of hypocrisy.
It is an iron law of history and politics, that all politicians in all countries throughout history are dependent on funding from various sources, including companies, trade unions, bankers and individuals. That is how politicians live, and when they are sufficiently seduced by other people’s money, compromises are made!
In the decade between 1998 and 2008, Wall Street spent US$5 billion in campaign contributions to both the political parties, and deployed 3,000 lobbyists across Capital Hall to get its way. “Wall Street has a lot of money and Congress can be bought on the cheap.” That was a major reason for Wall Street to be the most powerful economic, political and social force in the US, both before and after the 2007 crisis.
A few years ago, the US Supreme Court removed all limits on political contributions in order to promote “free speech and expression”. This has resulted in the growth of the “Super-Pacs” which have played and will play significant roles in the outcome of this November’s Presidential Elections between Obama v. Romney. Billions of dollars are spent not just on the media, but literally “to buy votes”.
In England, Big Business supports the Tory party while trade unions substantially fund the Labour Party. Perhaps the worst incidents of corruption of politicians occur in India, which in the last decade has charged scores of sitting Members of Parliament for financial irregularities.
Malaysian politicians, particularly from UMNO, are no better. The term “money-politics” entered our vocabulary decades ago. When Joseph Pairin’s government fell, in the late 1990’s, by massive defections shortly after it was duly elected at the Sabah state elections, party hopping did not take place for reasons of fundamental principles! Instead, it was money, pure and simple. Likewise, ideological reasons did not prompt 3 Pakatan assemblymen to cross the floor in 2009 which resulted in the fall of the State Government which had enjoyed popular support in Perak.
Therefore political parties should be the last to complain about NGO’s receiving funding!
How else is Suaram, and other like-minded organizations to fund their laudable activities. Their officers already sacrifice their time and energy for what they perceive as a noble cause — at the very minimum, they would be much more comfortable financially if they had “proper” private sector positions.
In order for these associations to carry out their tasks, they need substantial financial resources. In a recent public statement in support of Suaram, Amnesty International reminded our government of Article 13 of the 1998 UN Declaration on Human Rights Defenders which apparently provides that “organizations have the right to solicit, receive and utilize resources for the express purpose of promoting and protecting human rights”.
The “de facto” Law Minister, Nazri Aziz immediately responded to say that it is “alright for NGOs to receive foreign funding, but they should not be used by outsiders as mercenaries to attack the government”. He went so far as to say that there are “good” NGOs like the Malaysian Aids Council because that is “for a good cause”. But Suaram are mercenaries. So Nazri Aziz and the Cabinet are the arbiters : if an NGO does not criticize the Government, it exists for “a good cause”, but if it condemns the Government, that is not acceptable.
FUNDAMENTAL LIBERTIES UNDER THE FEDERAL CONSTITUTION
Part II of our Constitution, which is the supreme law of the land, contain numerous fundamental liberties or freedoms which cannot be removed by Parliament or by Courts. Article 10(1) (c) guarantees “all citizens the right to form associations”. This right must be read with the right to freedom of speech and expression and the right to assemble peacefully. Other critical rights are the liberty of the person under Article 5(1), the right to equal protection of the law under Article 8(1), the right not be discriminated under Article 8(2) and freedom of religion under Article 11.
The most important constitutional case ever decided by the Courts of Malaysia concerns “freedom of association” under Article 10(1)(c). The Supreme Court decision in the Nordin Salleh case in 1992 recognised for the very first time the principle that in deciding on the validity of state action, the Court must look at its effect or consequence on the exercise of any fundamental liberty : if the result of state action was to render any fundamental liberty meaningless or illusory, the Court would strike down such state action. In my opinion, the totality of unrelentless state action against Suaram in the past 3 months is unconstitutional under the Nordin Salleh test, and must cease immediately.
Although “freedom of association” is guaranteed under Article 10(1)(c) of the Federal Constitution, Parliament has passed numerous Acts which regulate and govern different types of associations, for instance:-
(iii) trade unions;
(iv) co-operative societies; and
Each kind of association comes under the regulation of a civil servant, whether known as the ROC, ROS or Registrar of Trade Unions. Each is a bureaucrat, who takes directions and orders from Ministers, the Attorney General or other governmental official. All these departments are part of the government in the wider sense of the word — the “Establishment” if you will!
Perhaps the best illustration of the way in which the Government controlled the decisions of a Registrar was in the wake of the UMNO Team A v. B dispute in 1987. After the High Court had ruled that UMNO was illegal, Dr Mahathir quickly applied to the ROS to form UMNO Baru. His application was approved immediately. When former Prime Ministers Tunku Abdul Rahman and Hussein Oon tried to form UMNO 1946, the ROS refused to process their application. Subsequently, all the assets of the original UMNO were seamlessly transferred to UMNO Baru, and after a decent interval, even the word “Baru” was dropped. Throughout these episodes, the ROS behaved in a biased manner, always favouring the ruling party. Examples can be multiplied : you get the point!
The Companies Commission of Malaysia, the new name for the ROC, has not behaved any better in the Suaram affair. There is absolutely no trace of independence and fairness in their conduct.
Suaram should stand steadfast in their struggle. They should start a fund to which all Malaysians (and indeed foreigners) should be invited to contribute, say, one Ringgit. And most importantly, this is not the end of Suaram : it is only the beginning of the struggle. There are many battles to conquer.
For Malaysians, if you needed another reason to punish the high-handed government which has ruled your nation for an unbroken continuous period of 55 years, the wholly unjustified intimidation of Suaram provides you with one. Please exercise your right to vote the “correct way” on ballot day, which will have to take place in the coming 9 months!
Tommy Thomas is an advocate and solicitor who was called to the Bar on 3 June 1976. He is a senior counsel and has argued many important cases as well as written contributions to the Bar Council and Aliran. LoyarBurok is delighted with his decision to contribute to the blawg.
Posted on 21 October 2012. You can follow any responses to this entry through the RSS 2.0.
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