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Legislators and administrators, in this respect, must concern themselves not only with the imposition of social control through law, but also the sense of legitimacy it generates through its use in society. While the use of legal 26 Marzuki Mohamad coercion as a political strategy in Malaysia has not been on a massive scale compared with, say, Cambodia under Pol Pot or the Philippines under Marcos, it is not, however, convincing to argue that its use has been strictly within the bounds of legality and without physical violence.
There have been numerous accounts of protesters being beaten by the police and of political detainees being subject to physical stress during solitary confinement. Notwithstanding such condemnations, the Malaysian state has actively proffered ideological viewpoints to legitimise coercion. The mantra of national security, political stability and the need to rapidly develop the economy has been repeatedly sung to justify restrictions on democratic space. References are often made to the communist threat or racial violence in an attempt to illegitimatise certain opposition activities.
This fatwa caused a split in the Muslim community, particularly in the Malay heartland states of Kedah, Kelantan and Terengganu. There were incidences where some Malays refused to attend kenduri feasts hosted by other Malays, accusing the latter of being infidels. In some places, Friday prayers were held twice as one party claimed the prayers held by the other party, apparently the infidels, was void in religion.
The White Paper claimed that PAS had encouraged the people to topple the democratically elected government through the use of force and, as such, had allowed the CPM to slip through into the Malay-Muslim community. Al-Arqam was subsequently banned. The need to rapidly develop the economy had also been the basis for legitimising legal coercion, but this argument came to a head with new social consciousness about the promotion of human rights and protection of the environment, fought on the basis of international norms as stipulated by various United Nations bodies.
For former prime minister Mahathir Mohamad, however, the primary role of law, viewed in this essentially developmentalist context, was to facilitate, not to impede, industrialisation. In developing countries, where the state rather than the market is regarded as the best mechanism to lead the process of economic development, state law normally assumes its instrumentalist-purposive function. In this context, state laws tend to expand rather than limit state power.
The concept of rule of law conceived in its instrumentalist-purposive function may thus follow a different trajectory from an essentially liberal-minimalist conception.
Rais Yatim, presently a cabinet minister, wrote while he was in the political wilderness: The Rule of Law in the Rukunegara did not necessarily mean the same as the rule of law conceived by Dicey or the various ICJ [International Commission of Jurists] congresses. It was not particularly concerned with checks and balances necessary in the popular notion under a modern democratic system. It was proclaimed to mean no more than rules and regulations made by the government must be followed emphasis is mine.
Law now assumed an important role, not just to contain ethnic violence, but also to buttress economic development. This new emphasis on the purposive function of law aimed at providing a sense of predictability necessary for capitalist advancement while keeping disruptive resistance by workers at bay. As such, the initial stage of the state-led economic development project witnessed two contradictory, but mutually reinforcing, sets of legislation. On the one hand, the state instituted a liberal investor-friendly legal framework to facilitate economic growth.
The provisions in this framework ranged from modern contracts and company laws to a formal system of justice with a conservative judiciary committed to the idea of strict legalism.
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Wu offers a catalogue of restrictive laws that severely controlled organised labour. The features of control in these two acts include: compulsory registration of trade unions; far-reaching power of the Director General of Trade Unions DGTU to refuse, or to cancel, the registration of any trade unions; restrictions on trade union activities, specifically those that can be construed as political; ministerial power to suspend a trade union; the exclusion of statutory authorities employees from joining private sector unions; and restrictions on workers to strike.
In this climate, the scope for mobilisation of social groups was progressively restricted, while governmental powers increased disproportionately. In March , the communities in the Baram and Limbang districts in Sarawak began a series of human barricades to stop logging activities on their customary land. Many of them were arrested for mounting this protest. In November , the Sarawak State Legislative Assembly amended the State Forest Ordinance, making it an offence to set up any structure on any road constructed by a timber licensee or permit holder.
All these projects involved the interests of large companies backed by the state. Ironically, these rights-infringing laws that were put in place to support state-led economic development had produced both intended and unintended results. On the one hand, Malaysia had emerged as one of the most successful developing economies by the mids. Upward social mobility, characterised by an expanding urban, educated middle class and political stability, manifested in the absence of major racial violence since , earned the government accolades for its economic performance thus enhancing its legitimacy.
The selective application of laws to limit the scope for political competition further increased the chances of the BN being returned to power during every election. On the other hand, upward social mobility also created a new consciousness about the place and meaning of self in the intricate web of state—market—society relations.tihebhofi.ml
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It is in the latter context that the new consciousness challenged state-created legal meanings inherent in its instrumentalist-purposive view of law, leading to societal pressures for legal change. These societal pressures forced the government to be more responsive to demands from below, again an unintended consequence of its own developmental project, by amending existing laws or introducing new ones. Decades of rapid economic growth had also helped expand the Malaysian middle class whose rising expectations of a better standard of living and quality life resulted in demands for better protection from unscrupulous producers, traders, retailers and house developers.
After consumer groups had campaigned for years, the Parliament, in July , finally passed the Consumer Protection Act. This Act provides for the setting-up of a tribunal to hear consumer claims worth less than RM10, The tribunal was introduced to help consumers get speedier legal redress at minimal cost, without being subjected to long and expensive legal battles in civil courts. Responding to criticisms that the Act was weak as it did not protect consumer rights on important issues such as disputes involving the acquisition of houses, Parliament passed the Housing Developer Control and Licensing Amendment Act The amendment to this Act provides more comprehensive protection for home buyers, including the setting-up of a tribunal similar to the one established under the Consumer Protection Act By responding to societal pressures, the government successfully allowed the new social consciousness to be incorporated into the body of state law, creating a sense of shared legal meaning while also enhancing the political legitimacy of the government.
However, the government remained adamant about maintaining a host of rights-infringing laws, in spite of similar pressures from society, which form the basis of ever-expanding executive power. But the scope of political opposition often transcends the boundaries of political parties. Therefore, it is erroneous to assume that legal arsenals were only directed at members of the Opposition. When power struggles within the ruling UMNO had much further-reaching consequences on the political regime, these legal arsenals were also convenient to silence internal dissent and purge rival factions.
For the purpose of brevity, this section only highlights some of the most important cases. Abdul Aziz Ishak Among the first to experience the brunt of legal coercion for refusing to toe the party line was Abdul Aziz Ishak, former UMNO vice president and minister of agriculture and Cooperatives in the cabinet of the first prime minister, Tunku Abdul Rahman. Aziz was a Malay folk-hero, a recognition he gained for his efforts to uplift the economic life of Malay farmers and fishermen, one of the most marginalised communities in post-independent Malaya.
Aziz, however, continued to advocate for major reforms, including the establishment of government-backed cooperative mills in the rice-marketing sector to replace Chinese-owned private mills. His ministry also revoked licenses granted to Chinese middlemen.
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Meanwhile, there were skirmishes between Aziz and Tunku. The prime minister felt that Aziz did not consult him or cabinet colleagues on important decisions, thus threatening the solidarity of the multiracial Alliance. Tunku worked out a compromise when he suggested that Esso, another British giant corporation, 32 Marzuki Mohamad hold 51 per cent of the shares and the cooperatives and other local capital the rest of the equity. Expressing his disappointment in a letter to the prime minister, Aziz wrote: You may have given other reasons for wishing to remove me from the Ministry of Agriculture and Cooperatives to the Ministry of Health.
You and I know the real reason, i. Do you really feel that the people particularly the rural people do not see this? Your advisors are also aware of this but they do not dare tell you. You have now forced me to resign and unless you change your mind I will have to go. Prior to that, in the August UMNO election, Aziz barely secured a seat in the executive committee, with the second lowest number of votes. He also failed to get re-elected as vice president. After his forced withdrawal from the cabinet, Aziz launched attacks on the government, accusing it of failing to address the plight of rural people.
Joining the opposition, the NCP fielded several candidates in the general election, but none was returned. Aziz also lost his parliamentary seat in Selangor.
But that was not the end of his political life. During the confrontation with Indonesia, he was detained without trial under the ISA, allegedly for conspiring with the Indonesian government to cause unrest in Malaysia. After a year in detention, he was released in but served with a restriction order barring him from active politics. This order was renewed two times until it was finally lifted in Describing his predicament in his autobiography, Aziz wrote: Obviously I was considered dangerous because my possible conduct was unpredictable.
Somehow or other, I must be silenced and under the ISA they had the power. Abdullah Ahmad was a deputy minister and a long-serving political secretary to prime minister Tun Abdul Razak. Abdullah Majid was a parliamentary secretary and former press secretary to Razak. Abdullah Majid and Samad Ismail, another close aide to Razak, reputedly had a leftist background. The untimely death of Razak in January provided an opportunity for Harun and his allies to fight back.
They accused the two men of being communist agents and demanded that the government take serious action against them.
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In this election, Mahathir barely retained his post by a slim majority of 43 votes. Mahathir subsequently purged Team B members from the cabinet.
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In a twist to this event, disgruntled Team B members filed a suit challenging the legality of the election and sought orders to hold fresh elections. They contended that, among other irregularities, the presence of 44 delegates from 30 branches that had not been approved by the Registrar of Societies made the elections invalid.
Interestingly, the defendant Team A argued that the plaintiff had no enforceable rights as the UMNO, by operation of section 12 of the Societies Act , had become an unlawful society. That was not the end of this episode. This appeal was crucial to the political settlement because, if it was allowed, it would set the stage for the old UMNO to be revived, necessitating a fresh party election.
In a number of controversial cases in the mids, the court had not decided in favour of the government. Tun Abdul Hamid Omar, who chaired the tribunal which found Salleh guilty of allegations of judicial misconduct and incompetence, took over as Lord president.