Is Malaysia heading for ‘BorneoExit’? Why some in East Malaysia are advocating for secession



FAZRY ISMAIL/EPA

James Chin, University of Tasmania

Unity is a common theme every year on Malaysia Day, the holiday celebrated last week that marks the day Malaysia became a federation in 1963.

That year, Britain agreed to relinquish control of most of its remaining colonies in Southeast Asia — Singapore, North Borneo (now called Sabah) and Sarawak. They then joined with Malaya, which had gained independence from Britain in 1957, to form a new nation called Federation of Malaysia.

The legal instrument to form the federation is called the Malaysia Agreement (MA63).

Yet, for the people of Sabah and Sarawak, located on the island of Borneo, the agreement left many with mixed emotions. Some people in these states have long desired secession and, in recent years, the drumbeat of separation has only grown louder.

This issue is now a key political issue in the Sabah state election this weekend and upcoming the Sarawak elections, which must be held before the end of 2021.

The two parts of Malaysia are separated by the South China Sea.
Shutterstock

Source of historical grievances

In a nutshell, most people in Sabah and Sarawak (also known as East Malaysia) are unhappy with federation because they think it has not delivered on two main promises made in 1962 — high levels of autonomy and economic development.

In the first area, the federal government has stripped away a lot of local powers in Sabah and Sarawak in the last 57 years. On top of that, the federal authorities have tried to impose the same toxic racial and religious politics found in Malaya (also known as West Malaysia) to the eastern states.

East Malaysia is much more ethnically and religiously diverse compared to the west. For example, the Malay population is a minority in both Sabah and Sarawak; in fact, no ethnic group constitutes more than 40% in either state. As a result, political Islam has not taken root here.




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In fact, one of the defining features of East Malaysia is intermarriage among the different ethnic and religious groups. The divide between Muslims and non-Muslims is reasonably insignificant — a marked difference from the often suspicious attitude Islamic leaders have toward non-Muslims in Kuala Lumpur.

In terms of economic development, Sabah remains one of the poorest states in Malaysia. And the infrastructure in both Sabah and Sarawak is vastly underdeveloped compared to the west of Malaysia.

To add insult to injury, more than half of Malaysia’s oil and gas production comes from Sabah and Sarawak. The common joke is that all the iconic infrastructure in peninsular Malaysia, such as the Petronas Towers, Penang Bridge and Kuala Lumpur international airport, was built with money from East Malaysia.

The infrastructure in Kuala Lumpur far exceeds that in Malaysia’s eastern states.
FAZRY ISMAIL/EPA

Britain’s hand in the federation

In recent times, one of the biggest grievances in East Malaysia comes from the process of decolonisation administered by the British after the second world war.

There is clear, documented evidence that back in 1962, the colonial office in London used its powers and influence to get the local leaders in Sabah and Sarawak to agree to the formation of Malaysia.

The British wanted a clean exit from Southeast Asia and to ensure its former colonies did not turn to communism. So the British conceived the idea of a “Federation of Malaysia”, where its former territories would come under a single political entity.

Activists in East Malaysia say if the British had not supported the formation of the federation, it was highly unlikely local leaders would have agreed to it. Many would have instead preferred independence or a federation consisting of Sabah, Sarawak and Brunei (which gained independence from Britain much later, in 1984).

A campaign event in Sabah ahead of this weekend’s elections.
Shutterstock

What Sabah and Sarawak want

All these historical grievances have led to a growing movement in Sabah and Sarawak advocating for secession from the federation.

With elections upcoming in both states, all local politicians — including those serving in the federal government — are now claiming to be MA63 nationalists trying to keep “Malaya out” of Sabah and Sarawak.

Social media is one key reason the secessionist movement has taken off in East Malaysia. It is now much easier for advocates to organise and magnify their grievances.

What the Sabah and Sarawak people want, at the very least, is a constitutional amendment to recognise the special autonomy of both states. But a significant minority argues the whole federation has failed, and thus secession is the only way forward.

Currently, the secessionist groups pose no real threat to the federation. But if enough people buy the secession argument in the future, public sentiment may be too strong for the national leaders to ignore.

How should the federal government respond?

There are basically two options available to the federal government.

The first is the ostensibly easy option — the political route. This would require the federal government to recognise the historical grievances and try to resolve them.

However, this is not as simple as it seems. The government is reluctant to grant real autonomy to the two states, worried this will end up weakening federal powers in the other 11 states of the federation.




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There was an attempt to reword the Constitution last year to symbolically recognise the special status of both states, but it failed.

This is the only way to keep the federation together, however. The federal leaders need to agree to recognise the special status of Sabah and Sarawak and grant them wide autonomy in the Constitution, as envisaged in the 1963 Malaysia Agreement.

The second option for the government is to play a wait-and-see game. Politically, this is dangerous, as the final outcome could very well be secession.

By way of comparison, the push for independence in Catalonia was similarly based on historical grievances that mushroomed into a mainstream political movement and eventually an independence referendum — declared illegal by Spain’s constitutional court.

At the very least, what is happening on the ground in East Malaysia suggests the decolonisation process in Southeast Asia is not yet complete. This colonial legacy is not merely history, but is clearly reflected in the present reality.The Conversation

James Chin, Professor of Asian Studies, University of Tasmania

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Will the Najib Razak verdict be a watershed moment for Malaysia? Not in a system built on racial superiority



Vincent Thian/AP

James Chin, University of Tasmania

Malaysians are rejoicing the news this week that former Prime Minister Najib Razak has been found guilty on seven charges related to corruption and abuse of power, and sentenced to 12 years in prison.

Many people want to see him (and his wife) jailed for the 1MDB financial scam, in which billions of dollars went missing from a government investment fund. Whether Najib will eventually end up in jail, though, is unclear. He will next file an appeal and the process could take more than a year to play out.

But there is a bigger question not being addressed in Malaysia. Does this verdict represents a watershed moment in Malaysian politics? Will Malaysian politics, or more precisely Malay politics, fundamentally change as a result of this monumental victory against corruption?

I would argue no.

A system built on Malay supremacy and discrimination

Malay politics is founded on a simple proposition — Ketuanan Melayu, or Malay supremacy. In recent decades, it has metamorphosed into Ketuanan Melayu Islam (Malay Islamic supremacy).

At its core is the belief Malaysia is Tanah Melayu (Land of the Malays) and ethnic Malays are the true indigenous people. As such, even though at least one-third of Malaysia’s population are non-Malays, Malays must be first in every facet of Malaysian life — from politics to government to religion to culture.

This philosophy has been institutionalised since 1971 under the government’s New Economic Policy (NEP). The NEP dictates that bumiputera (the official term for indigenous Malays) are given preference in all socio-economic spheres, including entry to the civil service, quotas in university intake, mandatory shareholdings in listed companies and exclusive business licences.

You can even get a 7-15% discount for buying a new house under the “bumi discount”, in addition to the government’s bumi quota for new properties.

In the religious sphere, Islam is widely considered the official religion of Malaysia, even though it accounts for just 61% of the population. In practice, this means people of other faiths are faced with discrimination and stringent restrictions.




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For example, it is a legal offence for anyone to proselytise Muslims, but not the other way around. In fact, there is no legal mechanism for a Muslim to leave Islam. If one is born an ethnic Malay, the constitution defines that person as Muslim. As a result, many Muslims, especially the younger ones, believe Islam is superior to all other religions.

In February, the Pakatan Harapan (Alliance of Hope) government fell, just two years after wresting control of the country from the Barisan Nasional, which had ruled Malaysia since independence.

The new Perikatan Nasional (PN) government that came into power in March was unashamedly “Malay First”, with Ketuanan Melayu Islam at its core.

Malaysia’s new prime minister, Muhyiddin Yassin.
NAZRI RAPAAI / HANDOUT/ EPA

So, what’s this got to do with the Najib verdict?

The short answer is the Najib verdict will not be allowed by the PN government to be a catalyst for real reforms or a reset of the Malaysian political system.

As long as the governing system is built on the notion of racial and religious superiority and discrimination, Najib’s verdict will be seen by the Malay elite as a story of personal greed rather than a failure of the system that allowed Najib to carry out the 1MDB scam.

The Malay elite wants to keep the current system because it allows them to wield power in the name of Ketuanan Melayu Islam and reap the economic benefits.

More importantly, it allows the Malay elite to stay in power by divide-and-rule over Malaysia’s plural population. The divide-and-rule policy (or divide and conquer) was set up by the British colonial rulers to maintain their control. The policy ensured each ethnic and political group did not cooperate with other groups to challenge the British authorities.

Is it any wonder the Malay elites are still using the same methods today?

Najib Razak still has many supporters in Malaysia who believe in his innocence.
FAZRY ISMAIL/EPA

Another important point to remember is the current system ignores the basic rules of economics. By setting up a system based on racial preferences, market forces are often ignored in economic policies in the name of “Malay share”.

Thus, anyone questioning shady deals involving the government are told to shut up as the normal rules do not apply to what is often referred to as the “Malay agenda”.

Najib was able to hide the 1MDB scandal for so many years precisely because nobody dared to question him. He claimed 1MDB was a Malaysian sovereign wealth fund and everyone in government understood it to mean a way of supporting the “Malay agenda”.

Khazanah Nasional, the real sovereign wealth fund, is tasked with ensuring the Malay stake in the economy, so it is not unreasonable for people to assume 1MDB was doing the same.

Najib’s guilty verdict will not bring even an iota of change to the country’s political and economic system. What is needed in Malaysia is the abandonment of the racist Ketuanan Melayu Islam ideology.




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The Conversation


James Chin, Professor of Asian Studies, University of Tasmania

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Malaysia’s media crackdowns are being driven by an insecure government highly sensitive to criticism



AHMAD YUSNI/EPA

Ross Tapsell, Australian National University

The recent police interrogations of six Al Jazeera journalists in Malaysia – five of whom are Australian – was not about shaping international reportage or a diplomatic rift.

Rather, it was part of a troubling pattern of crackdowns on the media and freedom of speech in the country, driven by the domestic concerns of an insecure government highly sensitive to criticism.

While the previous government led by former Prime Minister Mahathir Mohamad was by no means consistent or perfect, Malaysia was hailed just last year as an example of a country improving on press freedom.

This started to change in March, however, as Muhyiddin Yassin’s new government came to power. Tolerance for criticism and dissent has since been in short supply.

Al Jazeera’s documentary on the plight of migrant workers during COVID-19.

Pattern of repression

The Al Jazeera journalists have been accused of sedition and defamation over a documentary about the government’s treatment of migrant workers during the COVID-19 pandemic. Malaysian officials and national television claim the documentary was inaccurate, misleading and unfair.

But these journalists are hardly the only ones to be targeted by the new government.

Steven Gan, chief editor of the trusted online news portal Malaysiakini, is facing contempt of court charges and could be sent to jail over reader comments briefly published on the news site that were apparently critical of the judiciary. Gan’s lawyer warned the case could have a “chilling effect”.

Steven Gan arriving in court this week.
AHMAD YUSNI/EPA

South China Morning Post journalist Tashny Sukamaran has been investigated for reporting on police raids of migrant workers and refugees.

Another journalist, Boo Su-Lyn, is being investigated for publishing the findings of an inquiry into a fire at a hospital in 2016 that left six dead.

A book featuring articles by political analysts and journalists has been banned over the artwork on the cover that allegedly insulted the national coat of arms. Sukamaran and journalists from Malaysiakini have been questioned by police about their involvement.

Opposition politicians have also been questioned by police for tweets and comments they made in the media prior to the new government taking power.

Whistle-blowers are included in this, too. For example, the government this week cancelled the work permit of the migrant worker who was featured in the Al Jazeera documentary.

Why the recent crackdown?

Malaysia’s current coalition government – Perikatan Nasional – was controversially formed earlier this year. The alliance came to power via backdoor politicking and support from the Malaysian king as Mahathir’s dysfunctional coalition imploded.

The new government coalition includes the United Malays National Organisation (UMNO), the party voted out of power in 2018 following a massive corruption scandal. This was the first time Malaysia had changed government in its 60-year history.

With UMNO now back in government, it is perhaps no surprise there are again more crackdowns on the media, as their previous rule saw regular attacks on journalists, activists and opposition figures.




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Malaysia has also become known for its “cybertroopers” – social media commentators similar to “trolls” – who drive heated nationalistic and race-related agendas, and target government critics.

After the Al Jazeera documentary, these cyber-troopers provided fervent support for the government’s actions, arguing it had every right to round up migrants and evict them if it sees fit. Al Jazeera said its journalists were also targeted by cyber-troopers, saying they

faced abuse online, including death threats and disclosure of their personal details over social media.

Shaky government looking to firm up support

There’s another reason for the return of media crackdowns and online-driven activity beyond just the government’s desire to control the media.

It is also tactical as it allows government ministers to respond with firm statements asking security forces to intervene – enabling them to look strong, coherent and nationalistic.

Muhyiddin’s coalition is on shaky ground. It holds a slim majority in parliament and internal party factions have come to dominate political debate, with “party-hopping” becoming increasingly common. Malaysiakini even has a rolling news page regularly updated to track politicians’ changing alliances.

Malaysia’s parliament also finally resumed this week after a long and unstable hiatus, and was described as a “circus”. Politicians shouted over one another, with some trading racist and sexist remarks.

The house speaker, who was part of Mahathir’s administration, was also
controversially replaced. There has been consistent talk of snap polls.

In this environment, politicians who don’t respond forcefully enough in the “culture wars” over documentaries and controversial artwork on book covers, or conform with the online mob on immigration, risk looking weak.




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A ‘new normal’ settling in

A snap election won’t necessarily help Muyhiddin strengthen his position, as parties within the coalition can become rivals during a campaign for certain seats.

But no matter who rules Malaysia in the coming months, the result will likely be a government that is fragile, insecure and worried about its legitimacy. For Malaysians, this is their “new normal”.

The risk for journalists in this “new normal” is further repression and harassment of independent media. As we have seen elsewhere in Southeast Asia, as well as in Australia, the state seems increasingly willing to use legal and regulatory pressure to make sure journalists and whistle-blowers are afraid to speak up.The Conversation

Ross Tapsell, Senior Lecturer in the School of Culture, History and Language, College of Asia and the Pacific., Australian National University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Malaysia takes a turn to the right, and many of its people are worried



AAP/EPA/Nazri Rapaai

James Chin, University of Tasmania

Muhyiddin Yassin has been sworn in as the new prime minister of Malaysia. Many people were surprised because 94-year-old Mahathir Mohammad, the oldest prime minister in the world, was widely expected to be reappointed for a third time.

Muhyiddin outfoxed the wily Mahathir, because Mahathir made two fatal errors. First, he had resigned, thus creating a vacancy. Second, he made a miscalculation about the king’s discretion. The Malaysian king appoints a person he thinks can command the majority in parliament – it has nothing to do with election results or how many MPs support you. In Australia, it’s called the “captain’s pick”.

The king picked Muhyiddin over Mahathir, and that’s that. The only way now to remove the new government is via a vote of no-confidence in parliament, which will take months.

The new ruling coalition

Muhyiddin’s new ruling coalition consists of three parties: United Malays National Organisation (UMNO), Parti Islam Malaysia (PAS) and Parti Pribumi Bersatu Malaysia (PPBM or United Indigenous Party).

UMNO and PAS were the defeated parties in the historic 2018 general elections that produced Malaysia’s first regime change since independence. UMNO had been the ruling party for nearly six decades before losing to PPBM and Pakatan Harapan (Alliance of Hope). Mahathir had established PPBM specifically to beat UMNO, and almost the entire PPBM leadership was ex-UMNO.




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So now we have an interesting combination. UMNO and PPBM are essentially the same parties with similar ideologies, Malay nationalism, combined with PAS, which wants to turn Malaysia into an Islamic state.

But what about the non-Malay and non-Muslim Malaysians who make up 38% of the population? Don’t they count?

The short answer is no. While the new administration will appoint a few non-Malays to the administration, make no mistake, this is an all-Malay government and its focus is on the Malay and Muslim community.

UMNO is still sore at the Malaysian Chinese and Indian population for voting en bloc against UMNO in 2018, which led it to lose government. Now it’s payback time. Expect more Malay-centric policies that will punish the Chinese and Indians.

Why are people worried?

Many are worried about the direction Malaysia may be heading in the short term.

First, there is concern that corruption trials relating to the infamous 1MDB scandal involving ex-prime minister Najib Razak may now go nowhere. Najib’s wife is also charged with corruption in a different case, along with several other ministers in the last UMNO-led government.

In fact, the UMNO president, Zahid Hamidi, who is facing 47 charges of money-laundering (the legal term for corrupt money), is trying to get a cabinet post in the new Muhyiddin administration. The attorney-general has resigned and his replacement will probably not go after high-profile UMNO individuals now that UMNO is back in government.

High-level corruption was one of the main reasons UMNO was defeated in 2018 and UMNO has not reformed. Now it’s back in government, most people expect “business as usual”.
There is credible fear that Muhyiddin cannot stand up to UMNO as UMNO is now the largest party among the three core parties. UMNO and PAS also have a political pact, which means PPBM will definitely not be able to stop the senior coalition partner if it insists on certain public policy.




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Second, people are extremely worried about PAS. Since its founding in 1951, PAS has advocated the idea of turning Malaysia into an Islamic state. It has introduced huhud (Shariah) law at the state level in Kelantan and Terengganu, but cannot enforce the law because it conflicts with Malaysia’s federal constitution.

Now that PAS is one of the troika in power, will PAS push the new administration to amend the constitution? There is already talk that PAS will get the government to amend the Syariah Courts (Criminal Jurisdiction) Act, or RUU355. This will indirectly allow for hudud to be implemented.

Third, and perhaps most worrying, the new government has broken the political convention that it always has a significant number of non-Malay voices to represent the diverse population. This government was built purely on the concept of ketuanan Melayu Islam (Malay Islamic supremacy). Non-Malays to be appointed to the new administration will know exactly where they stand – as window dressing.

Where to now for Malaysia?

Despite its racial and religious tensions, Malaysia has always been seen by the international community as a modern, moderate Islamic country with strong Westminster institutions. It was always understood that the political elite would choose the middle path at the end of the day, no matter how heated the politics became.

This may no longer be the case.

If there is a lesson to be learnt here, it is that regime change does not guarantee progress. In May 2018, there was joy that Malaysia had finally joined the club of newly democratising countries via the ballot box. Almost two years down the road we are seeing a complete reversal via an elite game.

If there is one thing about Southeast Asia, it is that the votes of the ordinary people do not matter when it comes to power games. Power here is a zero-sum game and, in this case, the non-Malays and non-Muslims in Malaysia are the losers.The Conversation

James Chin, Professor of Asian Studies, University of Tasmania

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Bellingcat’s report on MH17 shows citizens can and will do intelligence work



Large groups inherently possess more diverse knowledge, expertise and perspectives.
Tim de Groot/Unsplash

Tim van Gelder, University of Melbourne

Amid the news last week that the perpetrators responsible for shooting down Malaysia Airlines Flight 17 (MH17) will be put to trial next March, a report was released identifying further suspects responsible for escorting the missile to and from the launch site.

Who were the investigators behind the report? The CIA? MI6? No. It was Bellingcat, a large group of mostly volunteers working from laptops using only information available to anyone with an internet connection.

In February, Bellingcat also identified a third suspect alleged to have been involved in the poisoning of MI6 double agent Sergei Skripal and his daughter Yulia in the United Kingdom last year.

Bellingcat describes itself as citizen journalists, but its activities illustrate a growing phenomenon my colleagues and I call “citizen intelligence.” This is work that would count as intelligence gathering or analysis within an intelligence organisation, but it’s undertaken by citizens operating outside the traditional intelligence ecosystem.




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The rise of citizen intelligence

Citizen intelligence has been made possible by the internet in various ways.

Since its advent, we’ve seen an explosion of “open source” information. That is, data that’s accessible without any special organisational privileges. For example, just by opening Google Earth you can view satellite data of the kind only available to analysts in government agencies not many years ago.

There are now free new tools for gathering and analysing these vast troves of information, such as the analysis platform Maltego. Aspiring citizen analysts can now train themselves using resources available online or in workshops offered by various organisations.

Expertise in intelligence work is no longer the preserve of those hired and trained by traditional organisations. Powerful collaboration platforms, such as Google Docs, allow interested individuals to work effectively together, even when scattered around the world.

It could get even bigger

We’ve all seen how global, cloud-based marketplaces such as Amazon, Airbnb and Uber have transformed their respective domains. Citizen intelligence could grow even faster if a suitable marketplace is developed. At the SWARM Project, we’ve begun exploring the potential design of a platform where those seeking intelligence can transact with those willing to provide it.

What might that look like? A marketplace for citizen intelligence could be built on a “sponsored challenge” crowdsourcing model.

Imagine an organisation with an intelligence question. Say, for example, the organisation wants to identify potential threats to a proposed infrastructure development in an unstable region. The organisation pays to have the question posed as a challenge on the platform, with a prize for the best answer. Groups of citizen analysts self-organize and submit reports. When the deadline is up, the best report garners the prize – and bragging rights.




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Why crowdsourced citizen intelligence could be effective

There are reasons to think that crowdsourced citizen intelligence could match, or outperform, traditional intelligence organisations on some kinds of tasks. Traditional organisations have advantages, such as access to classified information and highly trained analysts, but crowdsourcing has compensating strengths.

Scale

Many intelligence organisations are small and under-resourced for the number and complexity of issues they are supposed to handle. Crowdsourced intelligence can potentially draw from much larger pools of citizens. For example, the analytics crowdsourcing platform Kaggle has over a million people signed up, and it gets literally thousands of teams competing on big challenges.

Diversity

With scale comes diversity. Large groups inherently possess more diverse knowledge, expertise and perspectives. A question like the one in the example above might require fluency in an obscure dialect, or specific technical know-how. No intelligence agency can maintain in-house everything it might need for any problem.

Agility

Crowds can be more agile than agencies, which are risk-averse bureaucracies. For example, individuals can more quickly access and use many of the latest analytical methods and tools.

Passion

Perhaps most importantly, intelligence work by unpaid volunteers is driven primarily by passion. Passion certainly exists within agencies, but is often stifled in various ways.




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The SWARM Project ran a tournament-style experiment in 2018 that illustrated how everyday citizens can sometimes beat the professionals. Teams tackled four tough, fictional intelligence problems over four weeks. Some teams were made up of analysts provided by organisations with intelligence functions, some of analysts recruited via Facebook, and some of citizens (non-analysts) recruited via Facebook.

On average, the citizen teams outperformed the professional analysts – and some of the citizen reports were astonishingly good.

How this could affect the intelligence industry

Citizen intelligence will likely create some headaches for intelligence agencies. For example decision makers might increasingly look to citizen sources over formal intelligence agencies – particularly where citizen intelligence delivers reports more quickly, or with more “convenient” findings.

On the other hand, citizen intelligence could have a lot to offer intelligence organisations. A suitably designed marketplace might enable the traditional agencies to take advantage of the power inherent in the crowd. Such a platform could be a “force multiplier”, at least for certain aspects of intelligence.

In view of these potential threats and opportunities, the Australian intelligence community should get on the front foot, shaping the future of citizen intelligence rather than just reacting to it.


This is a condensed version of a presentation given at the Technology Surprise Forum, Safeguarding Australia Summit, Canberra May 2019The Conversation

Tim van Gelder, Enterprise Research Fellow, University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

MH17 charges: who the suspects are, what they’re charged with, and what happens next


Amy Maguire, University of Newcastle

Four men – three Russians and one Ukrainian – will be charged in relation to the shooting down of the Malaysia Airlines flight MH17, which killed all 298 passengers and crew on board.

Dutch prosecutors will launch a criminal trial in The Hague on March 9, 2020. But the accused are beyond the jurisdiction of the court, and will most likely be tried in absentia. This means the accused will not be physically present in the court room.

The prosecutors argue the four accused were jointly responsible for obtaining a BUK TELAR missile launcher (a launcher for self-propelled, surface-to-air missiles allegedly owned by the Russian military) in the city of Kursk, and launching it from Ukraine.

They say the four men are responsible for the atrocity because they had the intention to shoot down an aircraft, and obtained the missile launcher for that purpose.




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While investigators have not accused any suspects of actually firing the missile, they say in future they may identify others with that responsibility.

For the victims and their loved ones, these Dutch criminal trials present the best hope of legal acknowledgement for the tragedy.

The MH17 atrocity

On July 17, 2014, flight MH17 was travelling from Amsterdam to Kuala Lumpur when it was shot down over Ukraine.

The Joint Investigative Team (JIT), led by Dutch authorities and comprising investigators from Malaysia, Australia, Belgium and Ukraine, concluded in 2016 that the flight was shot down by a Russian BUK missile.

The JIT identified the launch location as a field in eastern Ukraine, which at the time was in territory controlled by pro-Russian fighters.

The countries central to the investigation – including Australia, which lost 38 people – and the victims’ families have explored a range of legal strategies to assign blame for the attack.

Then Foreign Minister Julie Bishop initially proposed a war crimes trial for MH17, but this was vetoed by Russia in the UN Security Council.

Some civil claims on behalf of victims’ families are ongoing before the European Court of Human Rights.

And hearings are ongoing before the International Court of Justice, where Ukraine seeks to make a case against Russia. Ukraine cites the MH17 atrocity as characteristic of broader Russian aggression and lack of respect for Ukrainian sovereignty and independence.

Russia’s response

The Russian Foreign Ministry rejected this week’s announcement, in line with its earlier rejections of the JIT conclusions. It said:

Once again, absolutely groundless accusations are being made against the Russian side, aimed at discrediting the Russian Federation in the eyes of the international community.

Russian President Vladimir Putin earlier called the crash a “terrible tragedy”, but said Russia bore no responsibility for it.

Russian officials have claimed they were prepared to assist the investigation but had been “frozen out” of it.

Who are the accused?

Three of the four accused are Russian nationals, believed to be living in Russia.

Igor Girkin is a former colonel in the Russian security service. At the time of the atrocity, Girkin was the minister of defence in the so-called Donetsk People’s Republic, a pro-Russian separatist region of Ukraine.

The other two Russian accused, Sergey Dubinsky and Oleg Pulatov, are former Russian military intelligence agents who worked under Girkin.

Leonid Kharchenko is the only Ukrainian national accused. Investigators are not certain of his current location. At the time of the atrocity, Kharchenko led a separatist combat unit.

The specific charges in relation to the four named suspects will be:

  1. Causing the crash of flight MH17, resulting in the death of all persons on board, punishable pursuant to Article 168 of the Dutch Criminal Code

  2. The murder of the 298 persons on board of flight MH17, punishable pursuant to Article 289 of the Dutch Criminal Code.

The investigation is ongoing and continues to call for witnesses to assist.

What are the prospects for the trial?

Dutch investigators will issue international arrest warrants for the four accused and place them on international wanted lists. But they won’t issue extradition requests because they know already that no extradition of nationals is available under the Ukrainian or Russian constitutions.

It seems impossible for the Dutch court to gain actual jurisdiction over the Russian accused. Potentially, should Ukrainian authorities apprehend Kharchenko, he could be tried via video-link.

The Netherlands and Ukraine have entered into an agreement that would permit such an arrangement and – should Kharchenko be convicted – allow for his imprisonment in Ukraine.




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Challenges persist for multiple legal actions regarding MH17


The charges and any penalties originate in Dutch, rather than international, criminal law. Convictions for murder or the intentional downing of an aircraft could result in sentences of up to life imprisonment.

It’s fair to question the value of a prosecution without a court having actual jurisdiction over the accused. The only real answer is that such a trial would enable the presentation and adjudication of evidence and the judgement of a court as to whether charges are made out.

A memorial for the victims of MH17 in the Donetsk region, Ukraine.
Shutterstock

As time goes, the chances of successful prosecutions decline. Meanwhile, interested countries and the victims’ families continue to call for legal redress for the atrocity.

It is also legitimate to ask whether a court can ensure a fair trial for accused persons tried in absentia.

Although it is not explicitly prohibited by international human rights law, the absence of defendants and presumably any legal representative from the courtroom means the accused will not hear the evidence against them or have the ability to present a defence.

Given the four named accused are beyond the actual jurisdiction of the Dutch courts, it can be argued that they (and, at least in the case of Russia, their country) are wilfully avoiding the process of justice. This may be, for some or many observers, sufficient justification for trying them in their absence.The Conversation

Amy Maguire, Associate Professor, University of Newcastle

This article is republished from The Conversation under a Creative Commons license. Read the original article.

What Najib Razak’s corruption trial means for Malaysia – and the region



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Former Prime Minister Najib Razak arriving in court in Kuala Lumpur on Wednesday.
Fazry Ismail/EPA

James Chin, University of Tasmania

The corruption trial of Najib Tun Razak, the former prime minister of Malaysia, has finally begun following two postponements and an attempt on the opening day of the trial for a third. Many Malaysians were starting to wonder if Najib would ever get his day in court.

Najib’s lawyers have used every legal manoeuvre at their disposal to try to delay the trial as long as possible. These tactics verged on the ridiculous a month ago when Najib’s main lawyer claimed his pet dog had injured his wrist. The move worked – the former PM was granted another reprieve.

The trial over Najib’s role in a financial scam involving Malaysia’s 1MDB sovereign wealth fund will certainly not proceed smoothly, and the defence is sure to file new objections to higher courts to try to stop it again.

The reason Najib wants the trial delayed is simple: if he is found guilty, it will have a major impact on other upcoming trials.




Read more:
What’s next for Najib Razak, Malaysia’s disgraced former prime minister?


His wife is also charged with money-laundering in connection with the scandal. (She’s accused of splurging on designer clothes and handbags during million-dollar shopping trips.) If Najib is found guilty, this would undoubtedly strengthen the case against her. Several ministers who served under Najib have also been charged with corruption.

Najib himself also faces several other trials related to the 1MDB scandal. For the government, the current trial is by far the simplest and easiest to prosecute. It involves 42 million Malaysian ringgit (A$14.5 million) that made its way from SRC International, a former unit of 1MDB, to Najib’s personal account. All these transactions occurred in Malaysia, unlike the other cases, which involve international transactions and multiple jurisdictions. The paper trial for this trial is straightforward.

Najib has pleaded not guilty to all charges and claimed the money in his accounts did not come from SRC International.

If Najib is found guilty, he will automatically lose his seat in parliament and face possible jail time. Being an MP gives him the platform to influence politics and say anything he likes against the current government, led by his political rival, Mahathir bin Mohamad.

Najib is already working on his political comeback – part of the strategy is to maintain a high profile as an MP through social media.

Najib tried to bolster his image with video of him singing a Malay version of The Manhattans’ 1970s song, ‘Kiss and Say Goodbye’

How Malaysians are viewing the trial

Many Malaysians want the trial to proceed without any more interruptions, because it would show the accountability process is finally working in Malaysia. Najib and his government were ousted from power in last year’s election because voters wanted the PM (and his wife) to face trial over the corruption allegations. Previously, it was understood that if you held a high political office, you were likely to get away with corruption.

If Najib isn’t convicted, many will likely wonder if there was any point to the change in power. The new government knows this and must deliver a credible trial. There is no other political option.

If Najib and his expensive lawyers are able to continue delaying the trial, Malaysians may start to lose faith with the new administration. Mahathir has publicly pledged to jail Najib for corruption before he hands over power next year to party leader Anwar Ibrahim, and if he cannot deliver on this, it will damage his successor’s political capital.




Read more:
Now that Malaysia has a new government, the real work begins reforming the country


Najib may even try to delay his trials until after the next election, due in 2023, so he can continue to mount his political comeback.

Far more important for Malaysia, however, is the issue of political immunity. No previous leader has ever been charged with corruption and it is vitally important the rule of law is applied here for future generations.

This has regional implications, as well. Many activists in countries such as Singapore, Indonesia and Thailand see the Najib trial as a benchmark for tackling corruption in their own countries.

In many Southeast Asian countries, a culture of impunity persists at the highest levels of government. There is a belief among many political leaders that once they leave office, the sins they committed while in power will not lead to jail. It is as if this is one of the benefits of being elected to office.

In the coming days, expect more delay tactics by Najib’s defence team. The case might even be halted again due to a legal challenge on a point of law.

But given the stakes involved, I have no doubt the new Malaysian Attorney-General, Tommy Thomas, will make sure Najib’s trial goes ahead. Malaysia as a nation cannot have closure over the 1MDB affair until he is called to answer for his alleged crimes.The Conversation

James Chin, Director, Asia Institute Tasmania, University of Tasmania

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Frydenberg lashes out at Malaysia’s prime minister for anti-Semitism



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Malaysian Prime Minister Mahathir Mohamad expressed his displeasure to Scott Morrison this week over Australia’s proposed move of its Israel embassy.
Wallace Woon/EPA

Michelle Grattan, University of Canberra

Treasurer Josh Frydenberg has launched a strong attack on Malaysian Prime Minister Mahathir Mohamad, declaring he has “form” in being anti-Semitic.

Frydenberg, who is Jewish, was responding to Mahathir’s criticism of the Morrison government for considering whether to move the Australian embassy in Israel from Tel Aviv to Jerusalem.

Mahathir said on Thursday he had pointed out to Prime Minister Scott Morrison during their meeting at the East Asia Summit in Singapore that “adding to the cause for terrorism is not going to be helpful”.

Frydenberg told a news conference that Mahathir “has called Jews hook-nosed people. He has questioned the number of people that have been killed in the Holocaust.

“He banned Schindler’s List as a movie being shown (in Malaysia), though it showed the amazing story of a righteous gentile who saved many people from persecution.”

Frydenberg made similar comments earlier in the day to ABC, saying Mahathir had “form” on making derogatory comments about Jews.

Frydenberg said Morrison was “absolutely right” to begin a process of considering where the embassy should be.

Indonesia is also highly critical of any embassy change, which was
reiterated in the talks Morrison had with Indonesian President Joko Widodo this week. The Indonesians have delayed the signing of the free-trade agreement until Australia makes a decision on the embassy.

Taking a decision on the embassy will be difficult and potentially divisive for the government. Members of the right in the Liberal Party and in the commentariat have been urging the move, but the pragmatists and many in the foreign policy establishment believe the government should stick with the status quo.

While saying that “no one is pre-empting the outcome” of the consideration, Frydenberg in effect made a case for moving from Tel Aviv.

“Australia already recognises Israel’s sovereignty over West Jerusalem. It’s where the Israeli Parliament is. It’s where the Australian ambassador presents his or her credentials. It will be the capital of Israel under any two-state solution,” he said.

“People who say ‘do not put the embassy in Jerusalem’ are making the point that we need to maintain more leverage over the negotiations between Israel and the Palestinians. The reality is that those negotiations have frozen. ”

Frydenberg said Israel was the only country in the world where Australia did not put its embassy in the nation’s capital.

He also criticised what he saw as “a double standard within parts of the United Nations and the Human Rights Council when it comes to Israel, compared with the treatment of other countries.

“The UN General Assembly has passed more anti-Israel resolutions than nearly all resolutions against other individual countries combined.”

Frydenberg said it was inevitable Australia and Indonesia would have
different views on the relationship with Israel.

“Indonesia doesn’t have diplomatic relations with Israel. Next year
Australia is enjoying 70 years of diplomatic ties with Israel. Of
course we are going to have a different view about that relationship.”

Morrison, now in Darwin to meet Japanese Prime Minister Shinzō Abe, said of Frydenberg’s remarks that he was “filling in the history of (Mahathir’s) record on various issues over time”.

Morrison repeated that Australia decided its own foreign policy, not
other countries.

The 93-year-old Mahathir, recently re-installed as Malaysia’s prime minister, was the object of criticism by then-Prime Minister Paul Keating a quarter of a century ago. When Mahathir refused to attend an APEC summit, Keating condemned him as a “recalcitrant”. Mahathir demanded an apology. The incident embittered relations between the two countries.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.