What is public interest?

Is every interest of the government always equal to the interest of the public at large? If not, how then does the party in power ( aka the executive branch of government) seek to determine the specific nature of the public interest in every case or situation?

Foreign Affairs Minister Rais Yatim’s doctoral dissertation was published as a book entitled ‘Freedom Under Executive Power in Malaysia: A Study of Executive Supremacy’.

Unfortunately, this brilliant thesis has come under the ‘fear syndrome’ and the author, who earned his reputation for his pet thesis, has since disowned the original assertion.

Nonetheless, the efficacy of his astute thesis, as applied and practised in Malaysia, is becoming more and more obvious after the Lingam tape scandal and more recently, the expose by Sabah and Sarawak High Court judge Ian Chin (right) .

What has become obvious today is that Malaysia was ruled under the dictates of an ‘Executive Supreme’ before the Pak Lah Administration took over, but things began to change towards a new governance regime.

That older supreme rule defined and instituted, in fair and foul ways, was also the so-called ‘good of the state’. The government interest was the national interest and also became the public interest. Let us reflect upon this theoretically and conclude if in fact the same framework can be held true today.

All the interests of any nation can be defined by the interests of all her citizens; all stakeholders and shareholders of the nation, including the corporate citizens. It is often defined as the greatest good for the largest majority. Too often also it is assumed that this national interest, as defined by the government of the day ( vide democratic processes) is also the public interest. But, in any true democracy, only a simple absolute majority is needed to make and form the government in power. But, there is always also the minority; the unregistered, the unconnected, the excluded and the so-called losers.

The 12th general election has, for the first real time, created a truly small marginal win for the federal government, with the loss of five states and 10 out of 11 parliamentary seats in Kuala Lumpur. In this new governance structure only about 51 percent of popular votes are for the federal government.

Can we still therefore assume that ‘what is good for the government is also always still good for the nation’? I think not. The 49 percent of nay-sayers are not an insignificant group of minority. Unlike in mathematics or even statistics, this win cannot be seen as a winner-takes-all majority.

Therefore, are all federal government pronouncements or views always in the public interest or for the national interest? I believe these terms and concepts cannot be simplistically defined based on statistical and mathematical values, or be interchangeably used as in the past any more.

Chin’s revelations in court established beyond any reasonable doubt for me that the former leadership of the nation had abused these concepts of public interest, national interest and government interests in largely interchangeable ways. For a high court judge to be told by the premier that the government interest is the public interest even within a court of law is the worst form of mockery of the perennially ‘blind’ lady of justice. That is the close-one-eye culture being nurtured.

Chin said he was packed off to a \”boot camp\” from May 26-30 together with selected judges and judicial officers. He said that the boot camp was without any doubt “an attempt to indoctrinate those attending the boot camp to hold the view that the government interest as being more important than all else when we are considering our judgment”.

In short, the operative value or worldview of the government then was that their stated and explicit interest, as articulated by the chief executive, was the public interest and therefore the national interest.

Concurrently, even high court judges were supposed to overlook their sworn oath to preserve and protect the Federal Constitution and all that was meant by it. Not to forget their own professional practice or code of ethics. Thereby, through the 1988 amendments of the Federal Constitution, this worldview became an operative fait acompli . The rest is now the history of the abuse of the judiciary in Malaysia.

No real freedom

Rais was right: the executive (not the Federal Constitution) reigned supreme and there was no real freedom under such executive power and authority. Power was abused absolutely by the chief executive of the state as interpreted by one person. All public servants were therefore made to serve only the executive authority of the state, and even the judiciary was meant to be subservient to the interests of the government of the day.

All three arms of governance; the legislature, the judiciary with the administrative branch of public services thereby became blind servants of the saya yang menurut perintah syndrome of the government of the day. In British parliamentary practice, this would have been in the service of the king and country; not for the government of the day.

Within such abused Malaysia Boleh thinking, made possible and probable in Malaysia, even judges and many others silently held out for favour their sheer fear of truth.

Today, especially after the political tsunami of March 8 and related happenings, much of the fear-based favour has ebbed and we now see the emergence of a newer quality of courage. It exists latently in all of us, but was snuffed out by debilitating fear of untold consequences.

The only way forward is to ask every civil and public servant to no more serve only the government of the day but rather to work for the public interest of the nation; for the king and our national heritage. Tell every public servant to sign off as saya yang bertanggungjawab (I, who am responsible).

Responsible to what, whom or how? Responsible to the history of the nation and her constitution, as the supreme law of this nation; to the King and all the public interest legacies like the Rukunegara or the Vision 2020’s nine challenges or even the original social contract for the Malayans and the legal contract of the Sabahan and Sarawakians.

Public and civil servants cannot blindly follow orders they know to be wrong. Instead, they must serve only the public and national interest after consideration of all factors. Such are public policy advisors at their best.

The government of today has only the right and privilege of a 51 percent of public views; the opposition, civil society actors and other marginalised sectors define the rest. The government of the day therefore does on have any corner on truth; all truth can and must be tested in the light of evidence in a court of law, but never in the hallowed halls of power within the abuse of such absolute power.

Lord Acton was absolutely right: Power corrupts and absolute power corrupts absolutely. May God Bless Malaysia.