THE HINDRAF SAGA: POLITICS IN A "CONSTRAINED" STATE

Negara dengan kuasa "represif" dilihat sebagai negara yang kuat. Banyak negara di dunia ketiga menggunakan kuasa represif untuk mengekalkan kestabilan politik yang diancam samada oleh pertentangan sesama elit penguasa, kegiatan komunis atau perbalahan kaum. Di Malaysia, ancaman komunis dan potensi perbalahan kaum telah menjadi justifikasi bagi pemerintah mengekalkan kuasa represifnya. Tetapi pada masa yang sama, dinamik politik kaum dan pilihanraya yang kompetitif di negara ini telah menyebabkan pemerintah bersikap responsif juga. Kekerasan digunakan tetapi ianya tidak harus sampai menghakis keabsahan politik pemerintah. Lebih-lebih lagi jika ianya melibatkan isu kaum. Jika tidak, kerajaan akan dihukum oleh kaum itu dalam pilihanraya. Justeru, saya menyifatkan Malaysia sebagai sebuah "negara yang terdesak" (constrained state). Di bawah ini ialah tulisan akademik saya mengenai perkara ini. Ianya ditulis dalam bulan Disember 2007 ketika isu Hindraf masih panas.

The image of a strong state is often represented by its institutional character, function and recourse to coercion. Drawing heavily on the Weberian notions about the state, some scholars define the state in terms of its authority to make binding decisions, regulate social relations and, if necessary, use force to compel obedience (Weber 1968; Reuschmeyer & Evans 1985; Mann 1986). These definitions tend to feature one dimension of the state, namely its bureaucratic or rule enforcing character, which often leads to perceptions about its all-powerful nature. Migdal, however, highlights formulation and transformation of state goals as another dimension of the state. He argues that “as the state organization comes into contact with various social groups, it clashes with and accommodates to different moral orders”. These engagements, in turn, “change the social bases and the aims of the state”. Envisioning the state as an amorphous organization operating in society, Migdal asserts that the state, like any other organizations, has “real limits to (its) power” (Migdal 1993: 12-14).

Literatures on Malaysian state adopt different approaches to analyses of state power. Legal scholars tend to emphasize the primacy of state power, as contained in the constitution and general laws, and wherever possible, provide evidences of actual use of such power by the state (Rais 1995; Harding 1996; Abdul Aziz 2003). Although these scholars have made considerable attempts to weave the discussion on state legal powers into their political application, being legalistic in nature, their works allow little space for analyses of political and social dynamics at the intersections between state and society that might have limited or augmented the exercise of such powers. More nuanced analysis of state power was offered by political scientists. Without denying the fact that the state has at its disposal wide coercive powers and repressive apparatuses, which were often legitimated on the grounds of maintaining communal harmony and national security, they acknowledged the existence of “constraints” in the exercise of such powers. The constraints can be in the form of needs to legitimize the use of coercion, competitive elections or factional conflicts among the elites (Barraclogh 1985, Crouch 1996, Case 2004).[i]

This paper seeks to offer a short analysis of the way the government exercised its power in its recent “clash” with members of the Hindu Rights Action Force (HINDRAF). Hindraf is a group of concerned Indian Malaysians who were dissatisfied with the way the government handled issues concerning the interests of the Indian minority, particularly in relation to legal conflicts in religious conversion cases, alleged police abuse against Indian suspected criminals, the problem of poverty within the community and, more recently, demolition of “illegal” Hindu temples by the government. Hindraf leader, P. Uthayakumar, made his name as a criminal lawyer handling cases of custodial death and alleged police abuse aganist Indian suspected criminals before he and his friends in the Police Watch and Human Rights Committee of the un-registered Indian-based Parti Reformasi Insan Malaysia (PRIM) formed Hindraf. Uthayakumar was once an active member of the opposition National Justice Party (keADILan) but left the party after a fall-out with its leadership.

While the problems faced by the Indian community are multifaceted, ranging from poverty to high incidence of crime within the community, it was demolition of Hindu temples that jolted them into direct face-off with the government.[ii] Following the demolition of the Mariaman temple in Kampung Rimba Jaya, Shah Alam in October 2007, Hindraf led a massive demonstration in Kuala Lumpur on 25 November 2007 to protest against the alleged marginalization of ethnic Indians in Malaysia.[iii] The demonstration was purportedly held in support of a class action that Hindraf filed in the United Kingdom court, claiming about US$4 trillion from the British government for bringing Indian indentured labour into Malaya during the colonial period and allegedly leaving them without protection when Malaya gained independence in 1957. The suit also sought to strike out Article 153 of the Federal Constitution which acknowledges Bumiputera’s special position. In a memorandum sent to the British Prime Minister, Gordon Brown, Hindraf alleged that ever since after independence, the Indian community had been “permanently colonized” by the “Islamic-fundamentalist Malay-chauvinist UMNO-led Malaysian government”.[iv] They also accused the Malaysian government of persecuting ethnic Indians in a series of “genocide” and “ethnic cleansing”.[v]

It was not uncommon for the government to quickly invoke the Internal Security Act 1960, which provides for detention without trial, to deal with “racial extremists” in the past. In the case of Hindraf leaders, however, Prime Minister Datuk Seri Abdullah Ahmad Badawi initially appeared to be hesitant to use ISA against them. Two days before the planned demonstration, three Hindraf leaders, P. Uthayakumar, S. Ganapathy Rao and P. Waytha Moorthy were arrested and later charged with sedition. When the case came up for mention at the Klang Session Court on November 26, all of them were discharged without acquittal due to prosecutorial oversight.

Pressures were building up, especially from within the Malay community, urging the government to take stern action against Hindraf leaders for inciting racial sentiment. Acting under pressures from within UMNO and the more conservative sections among the Malays, Abdullah finally invoked his power under section 8 of the ISA, as Internal Security Minister, to detain five Hindraf leaders for a period of two years.[vi] Not only that this ISA detention was the first since Abdullah became Prime Minister in October 2003, the use of section 8 of the ISA at the first instance was also against normal practice. Normally, a person is first detained under section 73(1) for a period of up to 60 days before he is either released or ordered to be detained under section 8.[vii]

Public reaction to the ISA detention was mixed. While the more conservative among the Malays lauded the move, the non-Malays, especially the Indians, were not impressed at all. An opinion survey conducted by the Merdeka Centre for Opinion Research soon after the detention was made revealed that more than two-thirds of the non-Malay respondents disapproved the detention.[viii] An ethnic Indian leader even assumed that should a ceramah organized by the ruling Barisan Nasional member-party, the Malaysian Indian Congress (MIC), is held side-by-side the one organized by Hindraf, “thousands of Indians will flock to the Hindraf’s, while probably only 50 will attend the MIC’s”.[ix] Some quarters within the opposition Democratic Action Party (DAP) were confident that the party might win in non-Malay majority constituencies where Indian voters constitute approximately 20 percent of registered voters.[x] There are only a handful of such constituencies, but it was enough to keep the DAP on the upbeat ahead of the next general election which is due no later than March 2009. Meanwhile, Hindraf supporters continued to rally the support of ethnic Indians by launching a signature campaign calling upon the government to release their leaders.

Though the government seemed to be resolute in using the ISA, it dropped attempted murder charges against 31 Hindraf supporters who took part in the November 25 demonstration. Five of them were released unconditionally, while 25 faced alternative charges of causing mischief and participating in an illegal assembly, which carry lesser penalty. Only one person was charged with attempted murder for allegedly trying to kill a police officer during the demonstration. The decision to drop the charges was made amid international pressures and criticisms from rights groups and Indian NGOs that the charges were too harsh. After meeting Indian NGO leaders on December 14, the Prime Minister announced the possibility of forming a committee that would look into the affairs of non-Muslims in the country. An officer at a local council also admitted that he and his colleagues had to avoid demolishing “illegal” Hindu temples fearing that such move would aggravate racial tension.[xi]

Faced with competitive elections and contentious communal politics, the Malaysian state exercised its coercive legal powers in an un-privileged fashion. While legal coercion has become an effective means of political control, its use has often been weighed against the need on the part of the government to maintain its legitimacy as well as to command sufficient multi-communal support in order to win elections. The Hindraf saga showed that while the use of ISA against the Hindraf leaders might have bolstered the notion of government’s “capacity” to maintain order in a communally-divided society, which is central to its legitimacy,[xii] it also caused considerable disaffection among the section of the community which identifies itself with the detained leaders - the Indians. Acting under this “constraint”, the government, while continuing to maintain its coercive legal powers, tended to negotiate such powers and accommodated to different communal interests.

Works Cited

Abdul Aziz Bari. Malaysian Constitution: A Critical Introduction. Kuala Lumpur: The Other Press, 2003.
Case, William. Politics in Southeast Asia: Democracy or Less. London: RoutledgeCurzon, 2004.
Harding, Andrew, J. Law, Government and the Constitution in Malaysia. The Hague: Kluwer Law, 1996.
Mann, Michael. The Sources of Social Power, Vol. 1, A History of Power from the Beginning to A.D 1760. Cambridge: Cambridge University Press, 1986.
Marzuki Mohamad. Communalism, Law and State Power: The Limits of Political Change in Malaysia. A Thesis Submitted for the Degree of Doctor of Philosophy of the Australian National University, 2008.
Migdal, Joel S. “The State in Society”. In Joel S. Migdal, Atul Kohli, Vivienne Shue, eds. State Power and Social Forces: Domination and Transformation in the Third World. Cambridge: Cambridge University Press, 1993: 7-34.
Rais Yatim. Freedom under Executive Supremacy in Malaysia. Kuala Lumpur: Endowment, 1995.
Reuschmeyer, Dietrich & Evans, Peter B. “The State and Economic Transformation: Toward an Analysis of the Conditions Underlying Effective Intervention.” In Peter B. Evans, Dietrich Reuschmeyer, and Theda Skocpol, eds. Bringing the State Back In. Cambridge: Cambridge University Press, 1985: 44-77.
Weber, Max. Economy and Society Vol 1. New York: Bedminster Press, 1968.

Notes

[i] For an analysis on the government’s response to public consciousness about human rights and proliferation of liberal legal meanings, which to a certain extent constrained the exercise of its powers, see Marzuki (2008).
[ii] Informal discussion with Shanmuga Kanesalingam, Legal Advisor, Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism (MCCBCHS), Perth, Australia, 6 December 2007.
[iii] A “link” between HINDRAF and an earlier initiative against alleged abuse of police powers can be observed in the demonstration. A letter written by a HINDRAF leader, P. Waythamoorthy, urged those who participated in the demonstration to record any incident of police abuses using their video cameras or handphones for the organization needed to compile those violations and highlight them to international media and human rights organizations. The letter was widely circulated via emails.
[iv] The full text of the memorandum can be accessed at http://rockybru.blogspot.com/2007/11/why-i-didnt-walk-yesterday.html (Accessed on 28 Nov 2007).
[v] The use of the words “ethnic-cleansing” and “mini-genocide” was rather exaggerating. Dato’ A. Vaithilingam, the President of Malaysia Hindu Sanggam, expressed his concern that the bad choice of words in HINDRAF’s memorandum had divulged public attention away from its otherwise legitimate concern of highlighting the plight of Indian community, especially the poor among them. According to Dato’ Vaithi, the term “mini-genocide”, which HINDRAF leaders often used to refer to the Indian-Malay clash in Kampung Medan in March 2001, was overboard. Giving an example, HINDRAF leaders often claimed that 104 Indians were “slashed and killed” in the incident, whereas the official statistics show that 100 were injured and only 4 were killed. Interview with Dato’ A. Vaithilingam, President, Malaysia Hindu Sanggam, Petaling Jaya, 14 December 2007.
[vi] Those detained were HINDRAF leader, P. Uthayakumar, lawyers M Manoharan, R Kenghadharan, V Ganabatirau and organising secretary T Vasanthakumar.
[vii] The Federal Court in Mohamad Ezam v. Ketua Polis Negara [2002] 4 MLJ 449 ruled that the grounds of detention under section 73(1) of the ISA was questionable by the court. The use of section 8 could have been to avoid the possibility of a successful legal challenge against detention under section 73(1) in court.
[viii] Informal discussion with Ibrahim Suffian, Director, Merdeka Centre for Opinion Research, Bangi, 16 December 2007.
[ix] Confidential interview, Petaling Jaya, 14 December 2007.
[x] Confidential interview, Petaling Jaya, 21 December 2007.
[xi] Confidential interview, Kuala Lumpur, 14 December 2007.
[xii] The Merdeka Centre survey also revealed that more than half of the respondents believed that the government was “stronger” after it invoked ISA, contrary to earlier perceptions about its “weaknesses” in dealing with societal pressures.