Friday, January 27, 2012

TMI: Najib is made Optimus Prime by Michael’s Decepticons — by Sakmongkol AK47

Najib is made Optimus Prime by Michael’s Decepticons — Sakmongkol AK47

January 27, 2012
JAN 27 — Datuk Seri Najib Razak was crowned the “Father of Moderation and Transformation” by the World Chinese Economic Forum (WCEF), which said the prime minister’s “fair and just leadership” had benefited the Chinese community “tremendously”. WCEF chairman Datuk Michael Yeoh said in his speech at the conferment ceremony today.
This was the major news item of the day. WCEF is a gathering of Chinese hongs and towkays eager to seek business favours from the PM. How does Michael Yeoh come by his assessment?
Among others, Yeoh praised Najib’s 1 Malaysia platform, his administration’s decision to increase allocation to Chinese schools and the introduction of tax exemptions for churches and temples, saying the initiatives were proof of the prime minister’s commitment to “fairness and justice”.
Fuyoh! I had to pinch myself. Never have I heard such outpouring of boot-licking averments which Michael sought to prove by stating the material I placed in italics above.
Let me steal the thunder from Michael’s shameless sycophantic offerings.
Two weeks ago, I sat down with Dr Richard Cockett, SEA correspondent for The Economist.Also present was Wan Saiful Wan Jan, head of IDEAS. Richard posted the question to me as to whether Najib will succeed in his transformation ideas.
He will not succeed, I said. But let me say some nice things about Najib. Najib is a personable fellow and if you get close enough to him, you will have to be a black-hearted person NOT to like him. But that is as far as I can go. He is a nice and a personable fellow.
He has his heart at the right place, but as I wrote some time back, he is a political invertebrate. He doesn’t have the political will and personal strength to push through his programmes. I was ready to concede later that Najib, on account of his exterior rhetoric, may indeed have a backbone but still, I find difficulty to locate where on his anatomy.
Take the case of his New Economic Model. Nowadays we hardly hear about it. At the 2011 Umno General Assembly, Najib did not even mention it. Instead he devoted much of his speech sounding very combative and full of vehemence. What he has done was to actually retrograde to Umno cavemen politics. You disagree with us, we bash you in the heads with our swing sticks.
Ask yourself. How will Najib, for instance, push through his economic agenda? Answer: He will revert to the tested ways of selecting cronies, of giving direct negotiated projects masked by seemingly transparent methods to the chosen few. Those chosen few too will be recommended by the Man who can walk on water. He will continue with the patronage system instead of pushing his transforming ideas through.
The only transforming sensation that Najib will achieve is perhaps playing with his Transformers toys and watching the film starring Shia LaBeouf. His eyes will probably focus more on Megan Fox.
At the 2010 Umno General Assembly, for instance, all his big ideas were rejected and thwarted by Umno delegates, obviously mirroring the general objection to Najib’s adventurist ideas which were his alone and, most probably, scripted by expensively paid consultants. His idea of 1 Malaysia with the hazy notions of inclusiveness and outward readiness to “We must pool our collective talents in the interests of our nation so that together, we will win out.” Fulamak!
That to be read as: we must pakat pakat to swipe clean the country’s wealth and make hay while the sun shines. We will carry out the agenda of guatolonglu-lutolonggua win-win policies.
The delegates at that assembly immediately rejected Najib’s 1 Malaysia by insisting on Malay-first policies on everything. So what 1 Malaysia is Najib talking about?
His plans to transform the economy and especially that of the Malay economy through his NEM founded on the equally hazy notions of affirmative policies based on free market economics and affirmative policies based on merits were met with howls from delegates insisting on the continuation of NEP-like policies.
In the end, Najib could only muster his last trump card — to claim that after all he is the son of Tun Razak. That, no one can dispute. Genetically he is, but culturally, he isn’t. He doesn’t have the leadership qualities of Tun Razak.
How can he push his liberalist economic agenda through a mindset accustomed to patronage? Will the Umno warlords, who have only known survival through the patronage system of Umno, allow some anointed successor, albeit the son of Tun Razak, dismantle a system that has provided them with succour? That would be suicidal.
Najib will be sacrificed rather than allow a system that has spawn hordes of tenderpreneurs being replaced by an adventurist Najib Razak with a blasphemous idea.
In short, Najib faces a brick wall and he has nowhere to go. Either he faces the Umno firing squad or capitulate. At the 2011 Umno assembly, he has done that exactly — retreated shamelessly. That gutless and shameless position was effectively masked by his recalcitrant and combative rhetoric.
How will he push his transformation programmes through a sea of stubborn tenderpreneurs and obstinate rent-seekers?
So in answer to Richard Cockett, Najib can’t transform. He can only dream of becoming Optimus Prime. —
* Sakmongkol AK47 is the nom de plume of Datuk Mohd Ariff Sabri Abdul Aziz. He was Pulau Manis assemblyman (2004-2008).

TMI: Race and Malaysian ‘exceptionalism’ — by Clive Kessler

Race and Malaysian ‘exceptionalism’ — Clive Kessler

TMI: January 27, 2012
JAN 27 — “The world has admitted that multiracial Malaysia grew faster than other developing nations that did not have the problem of race to consider,” Tun Dr Mahathir Mohamad has recently remarked (“Dr M: Scrapping race-based policies will lead to chaos”, The Malaysian Insider, January 26).
Yet most nations and national communities these days are culturally pluralistic, not monolithic. Those, such as Japan, that are largely homogeneous are the exceptions, not the norm.
So, on the claimed grounds of its diversity, Malaysia is no exception.
If Malaysia is exceptional, it is not because — like so many other modern nations — it is culturally pluralistic and socially diverse but because official government policy has been erected upon the idea that such diversity is not simply ineradicable but both abnormal and dangerous.
Government in Malaysia stands upon the “enshrining” of the idea of the fundamental, inescapable and eternal political salience of that diversity — and, however benign the intentions of its greatest statesmen may be, upon its necessarily “sectional” and hence ultimately divisive official management.
If Malaysia has a “race problem” it is not because of a malign historical fate but because Malaysian governments have offered and justified themselves over the years since independence as the authoritative manager of racial divisions and antagonisms.
The Malaysian government has always presented itself as the wise manager, and as the sole available broker and arbiter, of a basic dichotomy which it says it wishes to overcome but upon which, and upon whose continuing power, it remains dependent.
That is its political basis and rationale.
This idea of the fundamental nature of such cultural differences and of their inescapably conflictual character has been established and elevated as the “ultimate political truth.” It is the central doctrine, or credo, of the reigning “national political theology.”
Malaysia, as it is now established and has been managed, especially since 1970, rests upon, presumes and requires that particular form of “racial” difference, separation and antagonism which the government yet continually pleads it wishes to overcome.
A strange, contradictory, even silly idea, really.
It is a silly idea precisely because it is contradictory — and no coherent, sustainable policy may be built upon an evident contradiction.
But where would BN be without it?
The question answers itself.
Yes, Malaysia does have an unusual “racial” problem.
Malaysia’s is decidedly a “racial” problem — provided one recognises, as modern social theory does, that “race” denotes not mundane cultural diversity and social pluralism themselves but their antagonistic political, ideological and doctrinal “sanctification” as the ultimate or core human reality.
To see that human diversity as irreconcilable, and as the basis of inevitable antagonism rather than as a source of creativity and engagement and hope, is a political choice.
It is a fact, or the dubious gift, not of insuperable past events but of contemporary and continuing human choice, of ideological and political preferences.
* Clive Kessler is Emeritus Professor of Sociology and Anthropology at the University of New South Wales, Sydney, Australia.

Thursday, January 19, 2012

TMI: Why was Anwar Ibrahim acquitted? — by Tommy Thomas

Why was Anwar Ibrahim acquitted? — Tommy Thomas

January 19, 2012
JAN 19 — The stunned disbelief of most Malaysians when Anwar Ibrahim was acquitted on January 9, 2012 is the best proof of public perception that he had hitherto not received a fair trial, with a guilty verdict a foregone conclusion. A similar perception was felt by a vast majority of the 13,000 lawyers in the Malaysian Bar.
Politics of the Prosecution
For 3½ years since Mohd Saiful Bukhairy Azlan’s story emerged, the government has insulted the intelligence of Malaysians by declaring that Anwar’s prosecution was not influenced by politics. On the contrary, the case is all about politics, and nothing but politics.
If Anwar is not an electoral threat to Umno, he would not have been prosecuted. It is as simple, plain and obvious as that. If there are any who still doubt this critical statement of fact, take note that between 1998 and 2008 the media did not report any prosecution of consenting adults engaged in same sex activities. Does it mean that in that period no homosexual or lesbian activities took place in the country?
So why has there been so much governmental hostility against Anwar? Because he has been perceived by Umno as their greatest political adversary, and the only person who could be a potential prime minister. It ought to be recalled when Anwar was a popular deputy prime minister and minister of finance in the mid-1990’s, he generated the politics of envy in Umno. By 1997-8, then-prime minister, Dr Mahathir, was convinced that Anwar was a threat to his Presidency of Umno (and thereby the Prime Ministership).
The September 1998 sacking of Anwar as deputy prime minister, expulsion from Umno, brief detention under the ISA and prosecution for sodomy were actions taken by Dr Mahathir to eliminate a very serious contender to his office.
A decade later, Anwar’s singular contributions in leading Pakatan Rakyat to the best performance by an opposition party since Merdeka in the March 2008 general election raised Umno’s fears again. It was compounded by Anwar’s imprudent announcement in April 2008 that he would lead a Pakatan Government by September 16, 2008 (the 45th anniversary of the formation of Malaysia).
I suggest the decision to destroy Anwar politically a second time and to subject him to a second humiliating sodomy prosecution was taken by the powers that be in the wake of the March 2008 elections results.
The plot was hatched, and the agencies of the government went into action. In any modern society when the police and the prosecution authority conspire to destroy an individual, the whole force of the state is marshalled against the hapless victim. Unless there are strong countervailing independent organisations in that society, the individual is doomed.
Along with many others, I wrote in July 2008 that Anwar should not be prosecuted (see my article entitled “A second prosecution of Anwar Ibrahim — is it in the national interest?”) Such pleas fell on deaf ears. The prosecution, initiated in August 2008 during Abdullah Badawi’s administration, continued with great vigour under Prime Minister Najib Razak. The government controlled television, radio, and newspapers sensationalised coverage of the trial: intimate details of Anwar and Saiful were revealed, offending public decency and taste. Concerned parents had to shield their children from crude and graphic description of sexual activities.
Politics in Malaysia seldom concern idealogy or principles. Since Merdeka, the focus has been on personalities, invariably Umno Presidents and other senior leaders. Indeed, Anwar benefitted from the public image crafted by a pliant media during his 15 years climb up the Umno ladder.
In Sodomy 2, the politics of sleaze against Anwar reached a nadir, giving gutter politics a new meaning. On a comparative basis, few political leaders across the globe had been the victim of dirty state politics like Anwar.
With the slow rehabilitation of Aung San Suu Kyi and the opposition joining a coalition with Robert Mugabe, even Burma and Zimbabwe may have greater tolerance and respect for their opposition politicians. But in Malaysia, the Umno controlled forces worked on the principle that in order to destroy Anwar politically, they had to first humiliate him.
Politics of the Acquittal
The burning question is who was responsible for the decision to acquit Anwar on January 9: the Court or the politicians. Did the trial judge actually make the decision himself or was it in reality a political decision.
The fact that this is the principal aftermath of the acquittal itself is a commentary on the perception by Malaysians (including its lawyers) that in “political” cases the Courts are not independent of the executive.
In the four senior Commonwealth countries whose common law system Malaysia adopts, viz, England, India, Australia and Canada, no right thinking person (and certainly no lawyer) would question a judge’s independence if a similar acquittal had taken place in like circumstances. But not in Malaysia!
The judge
The only sure way for any lawyer to predict an outcome in a lengthy trial like Anwar’s is to review the trial judge’s overall conduct of that trial and then make a projection. In every criminal prosecution in Malaysia, elementary principles established over centuries forming the bedrock of our criminal jurisprudence have to be applied by every judge (juries having been abolished).
In the course of a trial a judge would have to make numerous rulings on procedural and evidential matters that would have a great bearing on his final decision. He also has to make a fundamental decision when the prosecution closes its case, viz, whether the defence has a case to meet. Only if he is satisfied that these elements have been proven by the prosecution on whom the burden solely rests, and which never shifts to the accused, should the judge call the defence.
Accordingly, applying the only rational basis available to those legally trained, the conduct of the judge during Anwar’s trial was consistently in one direction: totally in support of the prosecution’s case, and wholly unsympathetic to the accused. Hence, a conviction was inevitable.
In consequence, the judge’s acquittal was a U-turn of massive proportions. Lawyers who appear in court, that is, barristers, advocates or counsel, quickly develop a skill in “reading” judges. This is the human element in the judicial process.
No two judges in any country are alike. Each judge has his or her own temperament, personality, likes, dislikes and other idiosyncrasies. Having spoken to experienced lawyers who attended Anwar’s trial for substantial periods and whose antennae on “judge-reading” I respect, the judge’s behaviour on January 9 was in stark contrast with his general demeanour on the bench throughout the trial.
Lawyers who were in court on January 9 inform me that the judge was very edgy in his brief appearance (less than two minutes), merely announcing his decision in a couple of sentences and disappearing thereafter. Having reserved his decision for some months, he ought to have had his written reasons (grounds of judgment) ready for release that day. They have yet to be distributed. Most importantly, he was aware that the acquittal contradicted all his prior rulings against Anwar during the trial.
In the days following Anwar’s acquittal, apologists for the system have been heralding the dawn of a new era in judicial independence. Let me douse such naïve enthusiasm. Cases deemed “politically sensitive” by the judges are so predictable: the Executive always succeeds. Cases triggered by the Perak crisis of 2009 and those filed on behalf of the opposition states of Selangor, Kedah, Kelantan and Penang are recent examples.
An extreme illustration is provided by Kelantan’s oil royalty civil suit against Petronas (I disclose my involvement as Counsel for Kelantan). Bizarre and unprecedented rulings have been given by all the three levels of the highest Courts resulting in a transfer of a commercial dispute to the Civil Division, the intervention by the Federal Government as additional defendant when no claim is sought against it and the denial of discovery of documents by Petronas which is automatic in a writ action.
Accordingly, the Anwar acquittal will not be the harbinger of better things to come from the judiciary. One swallow does not make a summer!
If it is not the judge’s decision to acquit Anwar, it must follow that it was a political decision. Certainly two decisions indicate prior knowledge of government of the acquittal. First, it overturned its decision to prohibit the assembly of Anwar supporters in Kuala Lumpur, and agreed to allow them to congregate outside the court — even the police agree that there would be no risk when the crowd receives good news! Secondly, the government issued a press announcement within an hour of the court’s decision, welcoming the acquittal. Our bureaucracy never works at that speed.
It is ironic that from its first public announcement, the government has been claiming credit for the acquittal because it apparently demonstrates judicial independence. This is entirely misplaced. In a system of true separation of powers where the judiciary stands proudly and bravely independent of the executive, the executive can never be praised when judges make independent decisions.
That is how the system actually works. In Malaysia the system has been skewered from Merdeka and the executive can only be criticized for causing it. The executive can never receive praise if the system works as it is supposed to (which is not even the position in Malaysia).
What these announcements demonstrate is a “Freudian slip” on the part of the executive. It confirms that past judicial decisions were contrived at its behest. Because perception shades into reality, it would be difficult to convince the typical Malaysian who has become so cynical of the politically motivated prosecution and trial of Anwar, that his ultimate verdict was not similarly politically motivated. Thus, the fruit of a politically motivated trial is a politically motivated verdict.
Because it was a politically motivated trial, the ultimate acquittal decision was grounded in politics. It is an accepted premise among those campaigning for the hearts and minds of the Malaysian electorate, particularly in the Peninsula, that the real contest at the next election is for the Malay vote.
The Chinese apparently have given up on MCA and Gerakan, while the Indians are either too few or ambivalent about who to support. It should be kept in mind that in the last elections, Pakatan secured 51.3 per cent of the popular vote and 80 seats in West Malaysia.
Barisan Nasional secured 48.7 per cent of the popular vote and 85 seats. The opposition formed governments in 5 of the 11 States, and won 10 out of 11 Parliamentary seats in Kuala Lumpur. Thus a 3 per cent to 4 per cent swing of the popular vote would cause serious damage to Umno’s chances in Malaya.
In such a scenario, Sabah and Sarawak cannot be considered as safe deposits for Umno: political parties in East Malaysia have a habit of wanting to join the winning side so that they can be part of the Federal Government. Ideology and principle are also completely absent amongst the politicians on that side of the South China Sea.
It is against a background of a very close general election that Putrajaya made a political calculation: an acquitted Anwar would cause less electoral damage to Umno that a convicted Anwar. The martyr status must be denied to Anwar.
Beneficiaries of the Acquittal
The first beneficiary is Malaysia and its people. If the first sodomy trial in 1998-9 deeply divided and polarized Malaysia, the second trial was received much more cynically, with the vast majority of Malaysians not choosing to believe the version put forward by Saiful.
When the video scandal orchestrated by that paragon of virtue, Rahim Thamby Chik became known, most Malaysians preferred to accept Anwar’s version. The dirty tricks department of Umno lacks imagination and creativity, and their credibility has been shattered. Hopefully, they will leave Anwar alone. Hence, the acquittal was welcomed by probably the entire Malaysian population, apart from his old nemesis, Dr Mahathir who neither forgets nor forgives, and his small band of supporters.
Secondly, Anwar and his family, at a personal level. Dr Wan Azizah Wan Ismail has always behaved with remarkable poise and calm when her husband has faced the almighty wrath of the State. So have the children. To watch one’s spouse or father being humiliated on the public stage for years must be nerve-wrecking. They have conducted themselves with admirable dignity in terribly adverse conditions.
Politically, Anwar is also a great beneficiary of the verdict. His innocence, expressed from the very first moment in 2008, has been vindicated by a judge who had not shown him any sympathy and who had ruled against him in nearly every prior ruling throughout the trial. He is now a free man who spoke the truth (a rare commodity in Malaysian public life).
The greatest beneficiary is Pakatan Rakyat. Its three constituent parties must be congratulated for never wavering in their public position that their only candidate for the office of prime ministership is Anwar (even if he is in prison).
He is now free to become the nation’s 7th prime minister after the forthcoming general election. It is very much up to Pakatan to make that happen. They should focus on issues: the first that comes to mind is the economy. Bread and butter issues like the galloping cost of basic necessities caused by rampant inflation, the increasing disparity between the rich and the poor, and cheap wages paid to our workers because of the presence of some 3 to 4 million immigrants (legal or others) should be highlighted.
In the wake of the Great Depression in United States and Europe since the 2008 financial crisis caused primarily by grand scale borrowing and massive debt, it is grossly negligent for the Najib administration to spend lavishly by borrowing to stay in power.
Putrajaya’s debt to Gross Domestic Product (“GDP”) has increased in the 2 years of Najib’s leadership from 53.1 per cent to 54.8 per cent. In absolute terms, federal government debt jumped by 71 per cent in four years from RM266 billion in 2007 to RM456 billion in 2011.
In a recent statement, the Malaysian Institute of Economic Research (MIER) warned that at this rate of excessive spending, Malaysia’s national debt would equal its GDP by 2019: a truly frightening prospect. Have they heard of Greece or Ireland? Pakatan should highlight these facts. Lim Guan Eng’s prudent financial management of Penang, on the other hand, will erase its debt in four years, a remarkable achievement.
Anwar is the glue who cements PAS, DAP and Keadilan. He is their undisputed leader and unifying force. He should reduce his foreign travelling in the next 12 months, and concentrate on domestic politics. The nation has to be reminded of his leadership and administrative qualities: former British prime minister Margaret Thatcher in a visit to Malaysia in the early 1990’s publicly stated that she would “trade” him to become her minister of finance.
The politics of envy that characterized Anwar’s rise in Umno continued to bedevil him after his fall from grace in 1998. In the subsequent 13 years, numerous “famous” personalities joined his party or supported him, only to fall out dramatically. Each of them predicted the end of Anwar. Instead, where are Chandra Muzaffar, Zainur Zakaria, Ezam Nor, Zaid Ibrahim and Raja Petra Kamarudin?
If Umno perceives that it too can benefit from his acquittal, it is clearly wrong. The average voter will not easily forget that he was charged and tried by an Umno government. A mere acquittal will not erase the Umno stain in the way the State has persecuted Anwar for years. There would be electoral punishment.
The way ahead
Closure requires the government not to appeal the acquittal. The Attorney-General, as the chief legal adviser to the government, and the man whom Umno states took the decision to prosecute Anwar in 2008 should be accountable for his poor judgment. The buck stops at his office.
Both coalitions must discuss and debate weighty national issues, like the economy, education, health, public services or the over-development which is scarring our cities and creating a property bubble.
The electorate must be given a clear choice as to which coalition should be given the privilege of governing Malaysia for the next fiveears. A true two-party system must occur this time.
Fifty-four continuous years of one-party rule after independence is a sufficient learning curve, even for our cautious electorate! Is the next general election the time for change?
* Tommy Thomas is a lawyer who occasionally comments on politics and economics.

Thursday, January 12, 2012

CAP: AELB not adhering to IAEA recommendations on Lynas... by SMM Idris

 AELB not adhering to IAEA recommendations on Lynas
 Letter to the Editor                                                                                                                                                  11th January 2012
The manner in which AELB and Lynas Corporation are conducting public disclosure makes a mockery of international best practices, safety standards and the various International Atomic Energy Agency (IAEA) recommendations which the government and Lynas had pledged they will honour.
Public Information and disclosure
Among the other IAEA recommendations relevant to public disclosure are:
  • Lynas should intensify its communication with interested and affected parties in order to demonstrate how it will ensure the radiological safety of the public and the environment.
  • AELB should intensify its activities regarding public information and public involvement.
These recommendations are an implicit acknowledgment by the IAEA that Lynas and AELB have all along operated in a non-transparent, unacceptable manner and both entities have to improve their policies on public disclosure and consultation with the rakyat.
Over the New Year holiday on 2nd January 2012, the Ministry of Science, Technology and Innovation (MOSTI) announced that the Malaysia Atomic Energy Licensing Board (AELB) will display Lynas’ application for a temporary operating licence (TOL) for public feedback for barely 11 working days at several locations - AELB headquarters in Dengkil, Selangor; the Pahang State Secretariat, Kuantan; AELB’s site office at Lynas, Gebeng; and AELB’s east coast branch office Kemaman, Terengganu. Those who want to read the document have to submit a form provided at the locations before noon on Jan 20th (sic).
These restricted locations and the process requirements are impediments to the public who want to view the document. The restrictions including the AELB form requirement is also tantamount to public intimidation.
In comparison, the Department of Environment (DOE) allocates a much longer review period without any requirement to fill up a form beforehand. The DOE allocates 5 weeks for a review of a Preliminary EIA (PEIA) report and 12 weeks for review of a Detailed EIA (DEIA) report. (For example, the DEIA Report for the Proposed Hydroelectric Project Hulu Terengganu by Tenaga Nasional Berhad was on public display from 30 Sept - 31 Oct 2008 at several specific locations and at all State offices of the DOE and the written comments must be submitted by 13 November 2008. The Executive Summary of the DEIA was also available online on the DOE website. The DEIA could even be purchased from a clearly indicated address. (Source:  There was no requirement for members of the public who wanted to review the DEIA to fill up a form, as is currently required by the AELB).
It is important to note that the DOE EIA Review process is clearly explained in DOE documents such as its widely published EIA Guidelines, Handbooks and also on the DOE official website, including details of the composition of the Review Panel etc. In stark contrast, the AELB seems to be an ad hoc, non-transparent, non-independent and much hurried process which may be susceptible and has clearly led to unfair and unprofessional practices. This indicates that the AELB has poor governance and has not fulfilled the recommendations made by the IAEA report to significantly improve AELB, inter alia, AELB technical skills and capacity as well as independence in order for AELB to handle regulation of industries such as Lynas.
Other impediments include, inter alia, members of the public who made time to view Lynas’ application were given ONE hour to read the 300-400 page technical document, and barred from carrying cameras, handphones and videocameras when inspecting the document. Some members of the public was escorted to the AELB office by Lynas staff, once again indicating that AELB is not independent. This also reveals the utter disregard and contempt the authorities, including the AELB, have for public accountability and transparency. The level and quality of engagement and consultation with the rakyat have been woefully inadequate. The project was hurriedly approved in 2008, without public consultation; a series of public discussions that had been planned were abruptly cancelled after only two sessions. The MB of Pahang refused to meet and hold talks with groups who opposed the project and called them irrational.
By not adhering to a credible process of public review as recommended by IAEA, the AELB should reject the Lynas project application for a temporary or permanent operating licence.
IAEA general safety guideline on and Classification of Radioactive Wastes
According to the IAEA’s general safety guides (GSG) on Radioactive Waste Classification (GSG-1), the radioactivity level of Lynas’ WLP solid waste which is reportedly at 6.2 Bq/g is categorised as Low Level (radioactive) Waste. The IAEA GSG-1 states that wastes in this class requires robust isolation and containment for periods of up to 300 years and is suitable for disposal in engineered near surface facilities. The typical safe storage depth is from the surface down to 30 meters.
According to Dr Lee Chee Hong in his comments (August 2011) on the IAEA Report, if the classification of Radioactive Wastes Safety Guide (GSG-1) was to be enforced for the WLP residue, then the RSF (Residue Storage Facilities) disposal method proposed by Lynas would be violating the IAEA standards.
Thus, a temporary operating licence (TOL) for Lynas would be contrary to the IAEA standards, safety guidelines and its specific recommendations on how AELB and the Malaysian government should be managing Lynas.
TOL under Act 304 does not fulfill IAEA recommendations
The temporary operation licence (TOL) is a stipulation of the Malaysian Radiation protection (Licensing) Regulations 1986 of the Atomic Energy Licensing Act 1984 (Act 304) – the main law governing radiation protection. However, Act 304 and its subsidiary regulations are sadly lagging behind international standards. Act 304 is very general in nature and woefully inadequate to handle rare earth processing plants especially the regulation of the safety aspects of the rare earth process, the radioactive waste disposal and storage, clearance threshold, radiation leakage, and health and safety damages caused by radioactive elements. Act 304 does not even regulate NORM (naturally occurring radioactive materials) and TENORM (technologically enhanced naturally occurring radioactive materials). More significantly, the Act invests wide ranging discretionary powers to the AELB and the Minister.
Thus, as far as the archaic Act 304 is concerned, theoretically, industries such as Lynas are potentially allowed to accumulate and dispose the water leach purification (WLP) radioactive solid waste residue on site if they obtained a written authorisation (e.g. TOL) from AELB. This is one way that Lynas can bypass the permanent waste storage impasse.
Given that the licensing and approval process hinges on the safe disposal and storage of radioactive wastes, it appears that Lynas has failed to come up with a credible solution to meet the conditions set out by the IAEA review. This is attested by the fact that Lynas has made five submissions (officially three) which were all rejected and the current one on display is the 6th revised version (officially the 4th).
According to Lynas Malaysia managing director Ahmad Marshal in a media event in December, the plan is to process the wastes into, among others, fertilisers and gypsum boards for sale. Under the current Act 304 and its subsidiary regulations that do not set disposal limits or the method of safe disposal and storage of radioactive wastes, what Lynas proposed could be done albeit with potential future consequences. It is left to the incompetent AELB alone to decide the exemption limits and methods for safe disposal and storage.
However, the TOL and its consequences would be contrary to IAEA standards, guidelines (e.g. the GSG-1) and specific recommendations for AELB and Lynas. IAEA recommendations have called for AELB to improve its human, financial and technical resources, competence and independence before it is deemed fit to regulate Lynas. To date there is no evidence that the Malaysian government and AELB have adhered to the IAEA recommendations. Currently, AELB cannot and is incapable of regulating Lynas and similar industries.
TOL is against Precautionary Principle
A temporary licence for activities generating radioactive wastes does not make sense neither is it based on international best practices principles – as once the wastes is produced, it is there. This is also not in keeping with the Precautionary Principle that Malaysia has agreed to in many environmental agreements and guidelines. The Precautionary Principle states that in the absence of scientific consensus that the action or policy is harmful, the burden of proof that it is not harmful falls on the proponent. The principle promotes social responsibility to protect the public from harm.
As well the Malaysian authorities have failed to observe international best practices and legal principles other than the Precautionary Principle e.g. the Local Agenda 21 on sustainable development; public consultation and participation and the principle of prior informed consent; and public accountability and transparency.
AELB Independence: Ministry responsible is MITI or MOSTI?
The Ministry of International Trade and Industry (MITI) indicated that AELB will meet on 30 January 2012 to decide on Lynas’ TOL application.  It is highly perturbing that MITI continues to overstep its jurisdiction by yet again overtaking the role of MOSTI/AELB in the Lynas regulation process.
When the PEIA and RIA were made available to the public as a result of public pressure, there were serious doubts on the whole approval procedure and due diligence process. In fact, the poor governance made the credibility of the regulatory process doubtful. The regulatory authorities revealed that they were incapable of safely monitoring the Lynas operation, the radioactive wastes storage, disposal and decommissioning process in the future. To compound the problem further, MITI overstepped its jurisdiction and became the self-appointed spokesman endorsing the safety of Lynas’s plant operations. As it is, MITI is not the qualified ministry for the governance of ultrahazardous radioactive activities and public health and safety concerns. This again shows the poor governance and lack of due diligence in the whole process.
The MB of Pahang had said that the radiation level from Lynas’ plant is lower than bitumen used to resurface roads. AELB’s previous public announcements have also stretched the public’s credulity to the limit e.g. AELB DG Raja Datuk Abdul Aziz Raja Adnan had in April said that Lynas’ radioactive waste was so safe ‘you can just tabur (scatter) everywhere’. Such unqualified endorsements that the Lynas plant was safe by both unqualified politicians and the civil authorities can only mean they have become the spokespersons for Lynas.
The ‘seamless’ roles of Lynas employees and AELB’s officials makes the latter’s independence and authority highly questionable. When Lynas revealed in May 2011 that it had paid a sum of money to the Malaysian authorities as an indemnity for radioactive waste as part of AELB requirement, the DG of AELB denied this. ‘It’s got nothing to do with AELB. You got to check with MIDA. Check with MITI’ he was quoted. Till today no information has been forthcoming from any authority.
This poor governance structure and non-transparency has resulted in the IAEA international experts to make a clear recommendation that the AELB/MOSTI must have independence from other influences in order to be able to regulate industries such as Lynas.
The AELB should not issue a temporary operating licence (TOL) to Lynas.
Further, for the Malaysian government to regain public credibility and confidence CAP-SAM urges the following:
  • A judicial review of the government’s role and responsibilities in relation to public information disclosure and public participation;
  • A transparent process with a detailed and integrated approach that incorporates a socio economic impact assessment, health and safety impact assessment, a detailed EIA and RIA which will be coordinated and reviewed by an independent panel of technical experts;
  • A total review and revamp of Act 304 and its subsidiary regulations. At present it is a weak and toothless law and it needs to meet the requirements of international standards;
  • AELB/MOSTI, DOE/MNRE, MIDA/MITI and MOH must be independent and must be seen to be independent when it comes to issues which are within their jurisdictions. They must exercise integrity, professionalism and competence in their duties and work. This is in line with good governance;
  • MITI and MIDA (Malaysian Investment Development Authority) must beef up its capacities and expertise. There must be a review of MITI and MIDA and how it promotes foreign investments. They need to attract clean, sustainable and job creating industries instead of dirty toxic ones;
  • MITI and MIDA should respect the authority and competency of the regulatory authorities and should not guarantee projects which have not been approved by other regulatory bodies;
  • In the interest of good governance, there should be public disclosure and access to proposed MOUs with foreign investors. In light of this, the government must disclose how much it will have to pay Lynas Corp if the project is cancelled;
  • The government must ensure that all impact assessment studies have high standards of integrity, professionalism and expertise. Consultants who fail to meet the standards should be deregistered and blacklisted; and
  • The government must seriously improve its governance.
SM Mohamed Idris
Consumers Association of Penang /
Sahabat Alam Malaysia