When Malaysians woke up on May 10, the world looked and felt different. For the first time in years, many Malaysians feel a sense of optimism that was missing in their lives. For the past six decades, Malaysians have been living under the rule of the United Malays National Organisation (UMNO).
UMNO had won every election since 1955. In the May 9 general elections, Najib Razak, UMNO’s leader and prime minister, was not only confident, he was telling close aides that he was aiming for two-thirds of the seats in the 222-seat parliament. By the time the final vote was counted, UMNO had only 79 seats and lost power.
What happened? This will be the question preoccupying political scientists for years to come.
Suffice to say, Najib lost due to three main reasons.
First, his personal brand had become synonymous with kleptocracy. He was alleged to have received close to US$1 billion from a Malaysian sovereign fund via complex international transactions. It did not help that Najib’s wife, Rosman Mansor, was widely regarded as a spendthrift with a passion for diamonds and designer bags.
Second, Dr Mahathir Mohamad was no ordinary opponent. Mahathir was Malaysia’s longest-serving prime minister, from 1981 to 2003, and had come out of retirement to fight Najib.
Third, and perhaps most important, UMNO was simply seen as an organisation for political patronage, and a purveyor of racism and crony capitalism. It was no longer seen as a Malay nationalist party. In the past few decades, UMNO has been regarded as vehicle for making big money, government corruption and spreading hate towards the Chinese community in Malaysia.
The rural Malays, the mainstay of UMNO political power, could not stomach Najib’s toxic reputation as “Mr Kleptocrat”. They could see that under continued UMNO rule, their lives would be economically ruined. The GST brought in by the Najib administration was the last straw. Prices of basic necessities went up across the board despite Najib’s insistence that the GST would bring down prices.
There is tremendous goodwill towards Mahathir. Yes, he was dictatorial when he was prime minister the first time around. But most Malaysians I spoke to say this time it will be different. Mahathir is 92, and it is obvious he is a transitional leader.
He has said many times that once his jailed former deputy, Anwar Ibrahim, can get a royal pardon and a seat in parliament, he will hand over power to Anwar. Many Malaysians believe he will keep his word: after all, he cannot be going for re-election when he is 98.
Mahathir will also be constrained by the opposition’s organisational structure. His party, Pribumi Bersatu, has the third-smallest number of MPs of the four parties in Pakatan Harapan (PH) (Alliance of Hope). He is not in a position to bully.
Finally, what will happen to Najib Razak? Will he go to jail for 1MDB and the missing billions? In the short term, the answer is “no”. The new government will not immediately arrest Najib, or his wife. It will instead likely establish a committee to look into the 1MDB affair and get a definitive answer as to where the US$5billion disappeared to.
If the investigation panel shows Najib is behind the scam, then, yes, Najib will probably end up in jail. But this is a long process. It is more likely that any prosecution against Najib will start outside Malaysia.
Several governments, notably the US, are interested in sorting out the 1MBD issue. Thus far they could not complete their investigations because Najib used his position to stop Malaysian institutions from cooperating with the US Department of Justice probe into 1MDB.
There is a potential new angle to 1MDB, which is related to Australia. The bank account Najib used to launder 1MDB’s money is actually part-owned by ANZ Australia. Many believe some of the money from 1MDB passed through the Australian financial system.
On January 8, former Malaysian prime minister Mahathir Mohamad announced his intention to contest the next general election, due sometime before August this year.
In an unprecedented political turnaround, Mahathir is now leader of the alliance of opposition parties bidding to oust the incumbent, Najib Razak. Mahathir handpicked Najib in 2009 to head his former party, the United Malays National Organisation (UMNO), and the coalition it has led since the 1970s, Barisan Nasional.
To add further intrigue, Mahathir now appears to be on a unity ticket with his old enemy, Anwar Ibrahim, for control of the country.
Mahathir, who first rose through UMNO ranks to become prime minister in 1981, is 92. His decision to stand again has raised questions about the state of politics in this young nation, whose median age is 28. Malaysian and international media outlets alike have carried comments along the lines that nominating somebody so old is a “laughable” choice.
Yet the key to this decision is not in the nation’s age profile but the calculus of building electoral coalitions in a diverse nation bearing the scars of political battles fought since 1998.
Look also to Mahathir’s singular skillset in building such coalitions over decades, through a combination of Malay nationalism, a pro-capitalist Islamist ethic and selective minority representation. During his career, Mahathir mastered the use of such political themes, alongside tactics such as granting favours and opportunities to allies while exerting civil and judicial pressure on opponents.
Mahathir led Malaysia for 22 years. In that time, he transformed the nation for better and for worse, depending on which constituency you consult. He resigned in 2003, after famously sacking his deputy and finance minister, Anwar Ibrahim, in 1998.
Anwar, who became his most formidable opponent, has since led the opposition alliance that Mahathir now heads, with Anwar’s wife, Wan Azizah, as his deputy.
Anwar himself has nearly completed a second prison term – the first instigated by Mahathir, the second by Najib – and is only due for release in June, at which point he is likely to seek a royal pardon to readmit himself to political life. Anwar’s convictions have resulted from charges of corruption and sodomy – a criminal offence in Malaysia – both of which he has consistently denied.
Unless Anwar wins a pardon from the king, he will not be able to participate in politics for an additional five years after his release. Nonetheless, the plan is to find a way for Anwar to take over – presumably from Mahathir, or potentially from Wan Azizah.
In 2013, at the last election, Anwar led the opposition parties to win the national popular vote. But he did not win sufficient seats to form government, which Barisan retained.
Anwar has perfected a form of political code-switching, which allows him to argue for democratic reforms using both Islamic and secular liberal principles. This is a skill many voters, Muslim and non-Muslim, consider impressive.
Nevertheless, he failed to win important rural seats – whose largely Malay Muslim voters hold disproportionate power in this largely urban nation. Many voters in these seats view their economic and political interests as tied up with UMNO and Barisan, along with their development schemes, subsidies and loans that have propelled many Malay Muslims into better jobs in a modernising economy.
Appointing Mahathir as opposition figurehead is a bid to win these seats: the one missing ingredient in the opposition parties’ 2013 bid for power. It is for this reason that the “nonagenarian”, as Najib calls him, is suddenly running again. He is a critical component of an opposition pitch to these voters, sending the message that the opposition will not turn their lives or the polity upside down, as many fear it will.
That these fears exist is not a mystery. They circulate in comments made in public forums both by government ministers and by other figures linked to UMNO and its affiliated NGOs. They include the assertion that the opposition is un-Islamic because it includes parties like the Democratic Action Party, whose membership is largely ethnic Chinese.
Allowing this coalition to come to power, the argument goes, would allow it to dismantle the web of state protections that protects Malay Muslims not only from poverty but also from the country’s other “races.” It would also lead to an ethnic Chinese bid for power that would displace Malay Muslims in their own nation – from which they only ejected their last group of colonisers at independence in 1957.
Installing Mahathir as a figurehead is a signal to these voters – and their political patrons – that there will be no dismantling of Malay Muslim privileges. Nor will there be a public reckoning for members and officials of UMNO if their party falls, as Mahathir signalled earlier this week.
Instead, the logic goes, voting for the opposition will only rewind and reset the nation at the point it had reached 20 years ago – when Mahathir and Anwar were last leading the nation together, as the leaders of the very same Barisan that these voters continue to support.
There are two important additional constituencies that Mahathir aims to reassure, even while they express concern over a potential second era of “Mahathirism” and seek to delimit how much power he might wield in a new government.
These are non-Muslim Chinese, Indian and “other” minorities, along with so-called “liberal” Malay Muslims – a term generally given to urban professionals comfortable with interracial and mixed-gender politics. Many of these voters are already comfortable with the opposition, and may fear not only Barisan, but also the government’s new apparent allies, the Pan-Malaysian Islamic Party (PAS).
PAS has left the opposition alliance and is now working in co-ordination with Barisan. It commands a large following of supporters, although it has lost some leaders and supporters to a new party that subsequently split from it, Amanah, which has remained in the opposition.
If the opposition fails, and Barisan wins decisively, minorities and liberals will not like the price PAS will likely extract from Barisan in return for its support – which many fear includes hudud laws and a wholesale Islamisation of the state and public life. But such a transformation would be risky for Malaysia, and destroy its cultivated reputation as a safe and diverse nation in which “moderate” Islam prevails.
Through the 1990s, Mahathir presented himself to these voters as a bulwark against PAS, which he has characterised as similar to the Taliban and opposed to minority rights. A strong argument along these lines might disrupt Barisan-PAS co-ordination, and potentially deliver Barisan a weak win, whose legitimacy the opposition parties will likely challenge.
Najib has instigated a new battery of national security laws that he might consider using if political disaffection continues after a weak result. But, again, using them will be risky, as Malaysia also projects itself as a democracy.
As for the likelihood of an outright opposition win – this would take a surge of energy that seems not to be evident in supporters demoralised by the seeming impossibility of dislodging Barisan and especially UMNO. Even the multi-billion-dollar scandal that broke in 2015, and which remains the subject of a Department of Justice investigation in the US, seems not to have weakened its position.
Nonetheless, the campaign has begun in all but formal terms.
Multiple parallel actions are ongoing with the aim of achieving truth and justice for the 298 passengers and crew of Malaysian Airlines flight MH17. The flight was shot down over Ukraine on July 17, 2014.
An investigative team, led by the Dutch aviation authority and endorsed by the Australian government, concluded that the aircraft was shot down by a BUK missile. More than 100 individuals were identified in the 2016 report as linked to the incident. The investigation is ongoing.
Australia’s foreign minister, Julie Bishop, advocated for a war crimes tribunal to apportion blame for the incident. However, this proposal was vetoed by Russia in the UN Security Council.
This week, focus has turned to an action lodged in the European Court of Human Rights by lawyer Jerry Skinner on behalf of 33 relatives of MH17 victims. Skinner claims that the application has reached the stage of “ready for judicial determination”.
As reported last year, each applicant is seeking A$10 million in compensation from Russia. The claim is that Russia is responsible for violating the right to life of those killed due to its alleged supply of the missile that was launched from Ukraine, bringing down the aircraft.
However, the case lodged by Skinner is not yet listed in the court’s database. It is unclear how far the application has progressed but it certainly faces a range of major obstacles. The status of “ready for judicial determination” does not appear to be an official stage of proceedings in the court.
The European Court of Human Rights
The European Court of Human Rights was established in 1959 and sits in Strasbourg. It has jurisdiction to hear complaints from individuals and countries, alleging violations by countries that are party to the European Convention on Human Rights.
The court has delivered more than 10,000 judgments, which are formally binding on the countries subject to them. It receives more than 50,000 applications each year.
The application from Ayler and others is not the first to be lodged in the court in relation to Flight MH17. The case of Ioppa v Ukraine was lodged with the court in 2016.
The four applicants in that case are family members of three of the passengers killed on board Flight MH17. They have complained against Ukraine, rather than Russia. Specifically, they argue Ukraine violated their relatives’ right to life by failing to close the airspace above the military conflict zone that was active in eastern Ukraine in 2014.
The applicants allege that Ukrainian authorities intentionally failed to close the airspace despite their knowledge of the dangers posed to civilians travelling over Ukraine in passenger aircraft.
The application is currently noted as a “communicated case”, meaning it is awaiting judgment. The court has asked the applicants to identify what they have done to exhaust any available domestic legal remedies before applying to the court – particularly any legal avenues available in Ukraine.
The court has not yet published a preliminary finding on the admissibility of the case. This is the necessary first step before notice will be given to Ukraine to respond to the application. The case is certainly a long way from any potential judgment by a chamber of the court.
The Council of Europe
The European Court of Human Rights is not a creature of the European Union, but rather of the Council of Europe. The Council of Europe is a human rights organisation of 47 members, 28 of which are also EU members. All Council of Europe members have signed the European Convention on Human Rights.
The Council of Europe seeks to promote goals central to the international human rights framework, including freedom of expression and of the press, minority rights, and the abolition of the death penalty.
As a Council of Europe member, Ukraine is subject to judgement by the European Court of Human Rights. The applicants in Ioppa v Ukraine are all nationals of Germany, another member. Other Council of Europe members central to the MH17 situation are the Netherlands – because the flight originated at Amsterdam’s Schiphol airport – and Russia.
Should the European Court of Human Rights find Ukraine liable for a breach of the convention, Ukraine will be bound by that judgment. The committee of ministers of the Council of Europe monitor the execution of judgments by countries subject to them, including compliance with any orders to pay damages to complainants.
However, the European Court of Human Rights and the Council of Europe both lack enforcement capacity within the domestic jurisdiction of members, and would rely on diplomatic pressure to compel compliance with a judgment. Such pressure may be more or less effective depending on the status, power and political stance of a given member.
Prospects of success
Skinner has called on Australia to support the Ayler application. Bishop has responded that such litigation is a private matter for the families involved and those they are taking action against.
Bishop’s position is that Australia’s role is to support the ongoing investigation into the causes of the incident and then to pursue a justice mechanism with other countries.
It is important to note that Australia has no standing to join any action before the European Court of Human Rights, as it is not a member of the Council of Europe. However, Skinner argues Australia could exert diplomatic and political pressure to support the action.
Unfortunately for the families engaged in the European Court of Human Rights applications, litigation before that court appears to be a very indirect and unreliable route to gain compensation for the loss of their loved ones.
In the case against Ukraine, beyond the as-yet-uncrossed jurisdictional barriers, it may be necessary to prove that Ukrainian authorities knew of a direct threat to those on board MH17. This is a much more difficult standard to prove than a general awareness of threat to any civilian aircraft.
In action against Russia, setting aside the considerable jurisdictional issues and matters of proof, there is a major added barrier to satisfaction for the applicants. Russia has passed a law permitting it to overrule the decisions of international courts.
The Russian Constitutional Court subsequently ruled that Russia is permitted to overrule international judicial decisions where these would conflict with the Russian Constitution.
Russia disputes the preliminary findings of the ongoing MH17 investigation and rejects suggestions of its responsibility for the atrocity. This suggests that Russia would not accept responsibility for any finding of human rights violations by the European Court of Human Rights.
From an international law perspective, the stakes of such an action are higher for Russia than human rights litigation launched by victims’ families. However, Russia’s response is likely to be the same. While the International Court of Justice has progressed the case beyond the initial stage, a finding against Russia may well be disputed and any orders ignored.
It is now more than three years since Malaysia Airlines flight MH370 disappeared, and there is growing evidence that the search authorities have been looking for the aircraft in the wrong place.
The disappearance, on March 8, 2014, is considered as one of the biggest mysteries in aviation and the search of the seabed for the wreckage, costing A$200 million to date, is also the most expensive.
An underwater search of a 120,000 square kilometre area of the Indian Ocean, off Western Australia, has so far failed to find any evidence of the crash site.
The search was suspended in January this year until any “credible new information” should emerge that could be used to identify the specific location of the aircraft.
Initial search data
Initial evidence on the aircraft flight path was through satellite data (SatCom) from Inmarsat. This indicated that the plane most likely ended up in the southeast Indian Ocean along an arc – the 7th arc – that was the basis for defining the search areas by the Australian Air Transport Safety Board (ATSB).
Considering several end-of-flight scenarios, the ATSB defined the original search area of 120,000 square kilometres as being 40km either side of the SatCom 7th arc along a distance of 700km between latitudes 39.3°S and 36°S.
This search area was defined before any debris had been found in the eastern Indian Ocean, and was based only on the SatCom data. No oceanographic evidence was available at the time the search area was defined.
The ATSB initially announced that the first possible landfall of debris would be on the west coast of Sumatra, Indonesia, in the first weeks of July 2015. Subsequent to the finding of debris in the eastern Indian Ocean it was found that the oceanographic advice provided to the ATSB (not by the CSIRO) was incorrect.
More aircraft debris has been found in the western Indian Ocean: in Mauritius, Tanzania, Rodrigues, Mauritius again, Madagascar, Mozambique and South Africa.
The ATSB undertook a first principles review in November 2016 and based on additional information, particularly from oceanographic drift modelling, concluded that the 120,000 square kilometre search area was unlikely to contain the missing aircraft.
The ATSB also reported that oceanographic debris modelling undertaken by the CSIRO provided strong evidence that the aircraft was most likely to be located to the north of the search area between latitudes 32.5°S and 36°S along the 7th arc within an area of 25,000 square kilometres close to 35°S.
CSIRO released an updated report on April 21 this year with more refined modelling of the flaperon, based on field tests using an actual Boeing 777 flaperon.
This confirmed the conclusion of the first principles review that the crash site is most likely at the southern end of the 25,000 square kilometre region near 35°S. CSIRO defines the error to be within 100km, which is 1° of latitude.
Many independent oceanographic studies using different oceanographic (for current fields) and debris transport models have reached similar conclusions with respect to the location of the crash site.
They have all concluded that the crash site is not in the initial 120,000 square kilometre search area, but further north. A European study placed the crash site between 28°S and 35°S, and our study puts it between 28°S and 33°S.
Since the flaperon was discovered on Reunion Island, more pieces of debris have been found – many confirmed to be from MH370 and others to be from a Boeing 777, the aircraft design used for the flight.
The locations of these debris finds are consistent with oceanographic drift modelling. These predictions guided the discovery of many pieces of debris by US lawyer and amateur investigator Blaine Gibson and next-of-kin in Mozambique and Madagascar.
Of the 22 pieces of debris found the location of 18 were predicted by our UWA model. Those not predicted were in Mauritius and Rodrigues Islands which may not be well represented in the oceanographic model. The debris origin for this was at 96.5°E and 32.5°S along the 7th arc.
Thus based on the results of several independent oceanographic drift modelling studies that have used different oceanographic models to predict the current fields and including different debris transport modules, all have come to a similar conclusion to that of the ATSB’s first-principles review: the crash site is along the 7th arc 32.5°S and 36°S within an area of 25,000 square kilometres.
This area is immediately to the north of the 120,000 square kilometre region that has already been searched.
From an oceanographic viewpoint this is the best “credible new information” the search authorities have asked for that could be provided on the location of the MH370 crash site.
As oceanographers we have been using drift modelling for variety of applications for more than two decades and have high confidence in the results.
Thousands of protesters are expected to take to the streets of Kuala Lumpur and other Malaysian cities on Saturday to call for the resignation of Prime Minister Najib Razak.
Popular discontent with Najib’s leadership has rapidly escalated since early last month, when an exposé in The Wall Street Journal revealed that his private bank accounts held over $700 million in funds purportedly siphoned off a struggling state investment fund called 1Malaysia Development Berhad.
Najib has firmly denied malfeasance and penalized those who have alleged it. He has threatened to sue the Journal for libel; more controversially, he sacked his deputy prime minister, Muhyiddin Yassin, in a cabinet reshuffle in late July after Muhyiddin called for transparency in the matter.
Today’s planned rally, which the authorities have deemed unlawful, is the latest exercise in political discontent within this once-promising Southeast Asian state. The engine of this discontent is an unofficial pro-democracy…