Monday, November 26, 2007

Considering The HINDRAF Campaign

Dr Kumar of Persatuan Sosialis Malaysia has written a well thought through comment on the HINDRAF Campaign. I believe that it sets out the primary issues that should be given consideration when we consider the campaign and the events of 25th November 2007.


The Hindraf Campaign: A Critique – Dr. Kumar

Thousands of Malaysian Indians from all over the country are responding to Hindraf’s campaign. SMS messages are being amplified and sent out by the hundreds, petition forms are being signed, funds have been collected, and there is a massive mobilization to present a memorandum to the British High Commission on Sunday 25th November 2007. All this highlights the extent to which Malaysian Indians have been neglected and marginalized by the policies of the Barisan Nasional government. It shows the level of frustration and resentment within the community.

Many friends and contacts have been asking what is the Parti Sosialis Malaysia’s stand on the Hindraf Campaign? Why is the PSM not organizing buses to support the program on the 25/11/07? The main points of the PSM stand are outlined below –

1. It is undeniable that Indians in Malaysia face racial discrimination.

- difficulty in getting government jobs;

- lack of special programs for Indian students from poor backgrounds;

- the poor state of many Tamil Primary Schools;

- absence of laws to protect the estate community when they are evicted in the name of development; Ditto for the peneroka bandar;

- insensitive handling of Hindu Temples which are demolished to make way for “development”;

- extremely insensitive handling of cases of Indian individuals caught in “inter-faith” situations for example Moorthy, Subashini, and others;

- the negative profiling of Indian youth by the police and other authorities as “gangsters” and the harsh treatment of these youth when caught by police;

These are just some aspects of the reality of Indians in Malaysia. Indians are made to feel that they are second-class citizens, and after 50 years of Merdeka they are beginning to resent it more and more!

2. Ethnic based mobilization is relatively easy to do. Malaysian society has been tutored in racial politics by the BN parties (as well as by some opposition parties also) for the past 5 decades. The vast majority of Malaysians think in ethnic terms. However ethnic based mobilization of Indians will not be able to overcome the racial discrimination that Indians face. At this point Hindraf is asking for

- Cessation of the Bumiputra policy

- Institution of affirmative policies for Malaysian Indians

- Monetary compensation from the British Government for “leaving us in this mess”!

These are emotive issues, and it is obvious that many Malaysian Indians have responded to them. But is even remotely possible that they can be attained by ethnic based mobilization of the Indians who make up only 7% of the population?

3. We should not forget that apart from racial discrimination, the majority of Indians face economic discrimination because they are workers in a system that favours the businessmen and the capitalists. About 70% of Malaysian Indians are workers. The problem they face as workers include

- low wages. In many factories the basic pay in RM 18 per day, which works out to RM 468 per month.

- There is no job security. Outsourcing, the widespread use of contract workers, and the easy availability of migrant workers all weaken the bargaining position of Malaysian labour.

- Labour laws are being tightened and being made more pro management;

- Low cost adequate housing is difficult to find.

- Prices of goods is rising faster than wages! Petrol, toll and now flour.

- Basic services – health care, education, roads, water - which used to be heavily subsidized are now becoming increasingly expensive;

The problems listed above are also experienced by workers of all races in Malaysia – even the Malays, who are the beneficiaries of the Bumiputra policies. Only about 20% of Malay workers have jobs in government. The remainder have to work in the private sector where they too experience economic discrimination as workers in a capitalist economy. Malays workers are not exempted from the problems of low wages, job insecurity, rising costs of basic services, etc.

4. It appears that that some sections of working class Malays are beginning to question the Bumiputra policy which has benefited the UMNO-putra and their cronies far far more than the average Malay worker. Consider the following -

- the Mat Rempit phenomena. Isn’t this, in part, an expression of the frustration and resentment of ordinary Malay youth who are having difficulties finding and holding jobs because of the low-wage and migrant labour policies of the BN government;

- more than 50% of the 40,000 Bersih demonstration on 10/11/07 was made of Malay youth who were not from PAS or KeAdilan. They turned up because they are fed-up with the government which is only helping a small sector of Malay elite.

- Anwar Ibrahim has been openly calling for the ending of the Bumiputra Policy which he claims only helps the rich UMNO politicians. He wants a new policy – the Agenda Baru - that is based on economic need and not on race. All poor Malaysians should get government help.

- PAS spearheaded the Protes Coalition which opposed the hikes in Petrol and Diesel prices. They are also active in the Coalitions against Health and Water privatization.

Anwar is an astute politican, and PAS does have close contact with the Malay community. Their articulation of such issues must mean that in their assessment, ordinary Malays are resentful of government policies that favour the rich.

5. The political choice facing Malaysian Indians is simple. Do we

1. mobilize ourselves as Indians to fight the Bumiputra policy and ask for affirmative action for Indians?


2. Work towards a working class coalition that fights for a better deal for all ordinary Malaysians irrespective of race?

In other words, do we use ethnic based mobilization or class based mobilisation to fight the present state of ethnic discrimination of Indians?

6. Obviously 1000’s of Indians have jumped into the Hindraf bandwagon of ethnic mobilization. But the support of large numbers does not necessarily mean that that campaign is in the long term interest of the Indians in Malaysia. Nor does it mean that it is likely to succeed!

The PSM salutes all those who have thrown off their apathy to stand up for their rights despite the threats being made by the BN government in the media. However, action for action’s sake is never enough. Action must be guided by the correct analysis, and this is where we differ with Hindraf. Though Hindraf leaders have made sacrifices, and have shown courage, we believe that they are inadvertently playing into the hands of the “enemy”. Why?

7. Who are the major beneficiaries of the Bumiputra policy? Surely people like Najib, Hishamuddin, Khairi and other top UMNO leaders must be very uncomfortable with growing perception among the ordinary Malays that the Bumiputra Policy has been abused to make a small group of Malays filthy rich – all in the name of uplifting all Malays. These UMNO leaders are also worried about the coming elections for the people are frustrated with price hikes and corruption. Ethnic mobilization on the part of Hindraf would provide them with the perfect opportunity to

- resurrect the “Ketuanan Melayu” issue. They could use Hindraf’s demands to abolish the NEP as an example of how “lebih” the Indians have become, and of the importance to band together under UMNO for race and country!!

- Use some of the gangster groups associated with UMNO to provoke a racial incident that will come very useful for BN in the election campaign period. The old BN argument that we have to vote BN to avoid another May 13!

8. This does not mean that the PSM is advocating not fighting back when Indians are evicted or when houses and temples are torn down. Not at all. The PSM track record on this is clear – we have gone to stand with the people facing eviction and bullying by developers or the government in many estates and Peneroka Bandar kampungs. But we never have generalized this into an ethnic issue for all the reasons listed above.

This local fight-backs must continue whenever any community is faced with bullying by developers or government. But national level mobilization should be of all ordinary Malaysians (from all races) and not of Indians only!

We hope these brief explanations make sense to you. Do not retire from the struggle! Just reorient it to make it multi-racial and fight for the justice of all the ordinary people of Malaysia!

Salam Berjuangan!!

Written on 24 November 2007

Sunday, November 25, 2007

The Personal Dignity Of HINDRAF Supporters

Judging by the report by Malaysiakini “Tear gas fired at defiant protesters”), it seems as if the attempt to impede the HINDRAF Rally has descended into chaos. The police have come down hard, its treatment ‘heavy handed’. Bar Council monitors have declared their unhappiness with the way the police are handling the matter.

From the report it would seem that even before 7.40 am, tear gas was fired into crowds at Jalan Ampang, KLCC and Batu Caves. At 9.30 am, tear gas was still being fired. It appears also that participants are being beaten, women and children not being spared.

The question is why. The police obtained an order allowing officers to arrest on sight (see Malaysiakini report “Cops obtain rare court order against HINDRAF”). If there are persons breaching the order then arrests should be made and, in fact, it appears that arrests have been made already.

The order DOES NOT authorize the use of force. I would go further, the order, in allowing for preemptive measures, lends against the use of force.

And, of course, the question that begs an answer is why stop the rally in the first place. The question of a permit, or the lack of one, is a convenient and self-serving one.

How does this rally, planned for a Sunday morning, differ from the one organized by UMNO Youth during Condoleeza Rice’s visit to Kuala Lumpur on a Friday afternoon? That demonstration took place in the same vicinity, also had fiery and inflammatory speeches and was directed to a person or organisation other than the Malaysian government. That demonstration was aggrandized by the local media, with photographs of a defiant Khairy Jamaluddin, in arm sling to boot, gracing the leading pages (if not the front pages) of the mainstream print media.

It is readily obvious to all that despite the great show, there was never any intention on the part of the police to use force where the UMNO Youth demonstration was concerned. None was in fact used. The contrast with action taken where the HINDRAF Rally is concerned is manifest.

The UMNO Youth demonstration was as much about personal dignity as the HINDRAF Rally is. For, at the heart of the HINDRAF cause is a serious complaint about the marginalizing of the Hindhu community and a plea for recognition of the plight of this particular marginalized community.

I do not necessarily agree with the manner in which HINDRAF has decided to espouse its cause. Though I recognize the point HINDRAF is making, I believe that we should be fighting for the cause of all underprivileged and marginalized Malaysians. Having said that, the apparently inconsistent stance of the Police and the Government where rallies are concerned can only lead one to a conclusion that there may be some truth to what HINDRAF is saying.

I offer a prayer for those on the ground now and brace myself for the possibility of great violence.

The police should have known better than to use force to turn away people who have risen to claim what little dignity circumstance has left them with. Being at the point where one is compelled by sheer force to make a choice between standing firm on one’s principles, and in one’s beliefs, or turning away is not an easy one. Having made the decision to march this morning, many, if not all, would have made the decision that life was not worth living unless one could stand with dignity.

This is a decision that no one, not even the Police, is in any position to challenge.


Saturday, November 24, 2007

HINDRAF Rally: 25th November 2007

The National Human Rights Society (HAKAM) is gravely concerned at the refusal by the Government of Malaysia and the Royal Malaysian Police to allow for the intended peaceable assembly of persons supportive of the cause espoused by the Hindhu Rights Action Force (HINDRAF) this Sunday. HAKAM is equally concerned at the measures aimed at preventing HINDRAF from continuing with the intended assembly including the arrest of three of the principal organizers and the procuring of a restraining order at large against all persons intending to assemble in support of the HINDRAF cause.

HAKAM believes that it is the right of every Malaysian to express his or her views in peaceable manner, no matter how unpopular those views may be. The right to assemble peaceably is a right guaranteed under the Federal Constitution. Though the Government and the Police are charged with the responsibility of maintaining public order, they are equally responsible for ensuring that citizens are free to express themselves. Peaceable demonstrations are universally recognized as legitimate means of expression. There is nothing to suggest that the HINDRAF assembly is intended to be anything other than a peaceable demonstration.

If the Government or the Police are concerned that there are elements that may lead to public disorder, then it is incumbent upon the Police to identify those elements and protect those who wish to assemble peaceably from them. Preventing HINDRAF and its supporters from assembling would only facilitate the purpose of those who wish to impede HINDRAF and its supporters. This would not only be unreasonable but would also render illusory the rights of assembly and expression.

In this vein, the preemptive measures should not have been taken. The situation did not warrant the obtaining of a preemptive restraining order.

Further, HAKAM deplores and condemns the invoking of the Sedition Act by the authorities. HAKAM views the Sedition Act as unconstitutional and as an outdated legislation that has no place in the modern progressive society that Malaysia is today. HINDRAF and its supporters have every right to express their dissatisfaction with the state of affairs even where such expression is not necessarily popular. Majority rule does not justify the denial of minority voices. The attempt to deny the minority voice in these circumstances only goes to reinforce belief that in Malaysia it is only the majority voice that matters. This is a belief that is unsupported in fact or law.

HAKAM urges the Police to allow HINDRAF and its supporters to assemble peaceably this Sunday and to protect them from untoward harm. HAKAM further urges the Police to exercise restraint and to not resort to force.

Malik Imtiaz Sarwar
President, HAKAM
24th November 2007

Wednesday, November 21, 2007

HAKAM Press Statement: Royal Commission Of Enquiry

The Royal Commission of Enquiry being established to enquire into the Lingam Video is one of crucial significance to the nation and the public interest. It should not looked upon as being merely a means of investigating the narrow issue of the Video and the involvement of V K Lingam in the promotions and appointments of judges.

When one considers the tenor of the conversation the person alleged to be V K Lingam is having, it is apparent that, if authentic, the Video has serious implications and ramifications as to the integrity of the administration of justice. The names of Tan Sri Vincent Tan, Tengku Adnan Tengku Mansor (who, if the Video is authentic, was a Deputy Minister at the time the Video was apparently taken, and is currently a Minister), Tun Dr Mahathir Mohamad, the Prime Minister at the time) and Tun Eusoff Chin (a former Chief Justice) were mentioned in a manner suggestive of a collaboration amongst these individuals on the question of promotions and appointments. Additionally, reference was made to the manner that the then Chief Justice, Tun Mohamed Dzaiddin, was approaching the question of promotions and appointments.

From the involvement of the then PM and the then Deputy Minister, and in view of the Government’s direct involvement in the promotion and appointment of judges, it is clear that the Government itself is embroiled. This is significant in light of numerous allegations against the Government for having attacked the Judiciary in 1988 and thereafter having interfered with the Judiciary.

These implications and ramifications as such pertain to, amongst others:
  • the manner in which judges were, and are, appointed and promoted;
  • interference by the Government in the process of appointments and prmotions beyond the limited involvement permitted under the Federal Constitution;
  • the involvement of external influences and factors, including those of a corporate or commercial nature, that had, and have, no bearing on the capability and integrity of candidates for appointments and promotions;
  • interference by the Government with the Judiciary directed at the outcome of the proceedings before the superior courts;
  • the possibility of partisanship and allegiance amongst some members of the Judiciary, such partisanship and allegiance having a bearing on the outcome of proceedings before the superior courts; and/or
  • the possibility that the practices revealed in the Video had continued in the period after the recording of the Video.
The terms of reference must as such be wide enough to allow for a consideration of the issues arising from these ramifications and implications. The need for a sufficiently comprehensive mandate has been made more pressing by the fact of the police reports lodged by V K Lingam’s brother, K.V. Thirunanama Karasu, that go to underscore the apparently inappropriately close relationship between V K Lingam and the Judiciary, The naming of other Judges in the said police reports and the nature of the allegations made strongly suggest corruption.

In view of the need for such a comprehensive mandate, it is evident that the persons appointed as Commissioners must be persons who are not only capable of fulfilling and discharging the very serious responsibility of such an effort. They must also be persons who, and who are seen to, have the necessary objectivity so as to ensure public confidence in the enquiry.

For this reason, it is self evident that that the following persons should not be asked to be members the Commission:
  • Any Chief Justice since Tun Abdul Hamid, including Tun Hamid himself;
  • Retired judges who served Tun Eusoff Chin, Tun Mohamed Dzaiddin and Tun Ahmad Fairuz;
  • Any judge currently serving as such;
  • Any person closely connected with the Government and/or who served the Mahathir Administration and/or the Badawi Administration or still serves. This would include former Attorney Generals; and/or
  • Any person who might be perceived to have grievances against the Government and/or the Judicial Administration in the period from 1988. This would include Tun Salleh Abbas and any of the members of the Judiciary penalized in the 1988 attack on the Judiciary.

Malik Imtiaz Sarwar
President, National Human Rights Society
21st November 2007

Wednesday, November 14, 2007

Al Jazeera On The BERSIH Rally

Yesterday, I found myself sitting in a studio at Al Jazeera with Dato’ Seri Nazri and Khairy Jamaluddin discussing the BERSIH 10-11 rally. Teymoor Nabili, the host of 101 East was kind enough to moderate. Needless to say, the discussion was lively and interesting.

I am informed that the interview will air over Astro, Al Jazeera English, 10.30 pm, Thurday (‘101 East’). It will then be aired throughout the week (the schedule can be found on line at the Al Jazeera web-site) and will also be available on line.


Note: Been informed that it is Channel 513

Forcing Accountability

(Speech delivered at Public Forum on "90 Days After The Auditor General's Report-What Next?" organised by Empower Pusat Janadaya)

90 Days After The Auditor General’s Report: Forcing Accountability

I would like to congratulate Empower for organizing this very important forum this evening. I would also like to thank Empower for having given me an opportunity to share my thoughts with you.

The Auditor General’s Report for the year 2006 is unique not because it details mismanagement of public funds but for the extent of the mismanagement reported. Unlike the reports of previous years that were relatively muted, Malaysians were confronted with an array of damning indictments concerning the way public funds had been misused and wasted. The revelations are shocking, not only for the fact that the wastage pointed to is not easily reconciled with the repeated declarations of budgetary constraints that we hear of even in connection with matters of crucial importance such as education and healthcare, but for the fact that they point to what appears to arbitrariness in the exercise of powers that go far beyond any permissible limits of accountability. These revelations also point to a mindset within government that does not sit easily with any notions of the sustainable development of this nation, an objective that must be a priority when considered against the backdrop of depleting natural resources in particular oil.

The Auditor General must be congratulated for having had the fortitude to issue the report he did.

We hear so much of the three primary organs of the State: the Executive, the Legislature and the Judiciary. And while we tend to think of Parliament as a place of law making, many of us do not necessarily appreciate the crucial role Parliament plays, in theory if not in practice, in controlling the finances of the nation. Chapter 1 of Part VII of the Federal Constitution sets out the framework of parliamentary control. One of the key features of this framework is the office of the Auditor General established by the Constitution itself, by Article 105, and safeguarded by constitutionally entrenched safeguards aimed at allowing for the discharge of a constitutionally mandated function without fear or favour. Seen from this perspective, the Auditor General is not subordinate to any organ of the State. The Auditor General is subordinate only to the Constitution and the law, to the extent the Constitution permits. The reports of the Auditor General as such carry great force and are indisputably decisive of the matters considered in the said reports.

What that means where the 2006 report is concerned is that the shocking revelations are reasons in themselves for the Government to not only act but to act decisively and firmly. The office of the Auditor General being one of high constitutionality, it is both legally as well as morally incumbent upon the Government to take action.

The fact of the report itself is not a matter for which the Government can claim credit. It has been suggested that the fact that the issuance of such a damning report is reflective of the commitment of the current administration to doing the right thing. This could only be correct if the current administration was admitting to having interfered with the auditing process for previous years. If that is not the case, then the credit is entirely the Auditor General’s.

The only credit that the Government could claim to itself would be for having meaningfully acted on the report. This however does not appear to have been the case.
Thus far we have seen, or heard of, very little beyond the usual rhetoric of Government. A grand total of 10 related arrests by the Anti-Corruption Agency have taken place, 8 of civil servants. The civil servants arrested were nowhere near the top of the chain of command so as to justify the fanfare around their arrest. The Prime Minister has, in effect, snubbed the suggestion by the Public Accounts Committee of Parliament that the ACA should go after the “bigger fish”. Leave it to the ACA, the Prime Minister has said. The Prime Minister has apparently overlooked the fact that that the ACA is answerable to the Prime Minister and, as such, an endorsement by the Prime Minister of the suggestion by the PAC would carry great weight.

This state of affairs brings to the fore two crucial and inter-related questions. Does the political will exist for meaningful action to be taken against those responsible for the abuses and mismanagement? And, if political will is lacking, why is this the case?

The state of affairs suggests that there is a great reluctance on the part of the administration to take meaningful action. It is only logical that the person or persons in charge of the various ministries and agencies involved must necessarily be held to account for the wrongdoings of the said ministries or agencies. Being held to account is not necessarily limited to matters of criminality. If there has been neglect or misfeasance, then that is actionable in private law as well. A former Attorney General of Hong Kong was sued by the Government of Hong Kong to recover monies he had misappropriated. Further, legal proceedings are not the only means at the disposal of the Government. Disciplinary measures can be taken. Resignations can be requested.

Sadly, we have heard of no such measures even being considered by the Government, which, it would seem, is satisfied merely with the report itself and the minimal action that has been taken. Even worse, no one has come to the fore to take responsibility of the abuses and no one has been compelled to do so. It would appear that those responsible at the top of the chain of command have absolved themselves, firm in their belief that they will be forgiven. I have no explanation for this apparent belief other than perhaps they are banking on the fact that no one has taken issue in the past and so no one will in the present. Governments have toppled for less in other parts of the world.

We are therefore compelled to consider why the Government has taken such limited measures.

The nature of the mismanagement involves at its essence, serious breaches of trust. The Government, and as such its servants and agents, are trustees of the nation for the rakyat. They are trustees over public funds. These funds belong to the nation. They are not the property of the Government. A mismanagement of these funds is an injury to the nation and to the rakyat. It is a matter of national interest. It therefore defies logic that not only does the Government not appear to be taking any urgent, concrete and meaningful action, it also appears to not want to take such action. Why this is so is a matter of speculation, though Malaysians could not be faulted for drawing inferences. Politics has become the raison d’etre of Government at the expense of governance, it would seem. Institutions, and the processes underlying these institutions have been subverted for vested interest, political or otherwise. The continued refusal by the Government to recognize that the Judiciary is in a state of crisis, and as such the administration of justice and the national interest, serves to illustrate that the Government interest is not necessarily the national or the public interest.

The intentional enshrouding of bureaucratic process through the use of laws such as the Official Secrets Act, the Printing Presses and Publications Act and the Internal Security Act, as well as the seemingly insurmountable levels of officiousness, compound the problem. Malaysians are kept in the dark about, told that they have no right to know of, matters which are crucial to their ability to make informed choices, to decide what they want as Malaysians.

It would appear therefore that to rely on the Government to do what is right and what is best may be a luxury that Malaysians can no longer afford. It is evident that it falls to the rakyat to take the lead. How this is to be achieved is a complex question that calls for us to question ourselves. We must confront the realities of our existence. We must acknowledge that that it is our fault that we have the Government that we do, a Government that believes it can act with impunity no matter the scandal, no matter the revelation. We must decide whether it is safer for us to leave things as they are or whether if we do not start acting responsibly, for ourselves and for our children, it may be too late.

As far as I am concerned, we no longer have the luxury of time. We must act and we must act quickly.

The matters disclosed by the Auditor General and the apparent reluctance of the Government to act meaningfully are, in my view, election issues. Malaysians must show that they have had enough by voting, and voting responsibly, at the next General Election as Malaysians. Not as Chinese, Malay, Indian or other. As Malaysians, concerned for the welfare of their country.

To prime ourselves, we must identify who those responsible are. We must educate ourselves on the issues at hand. NGOs such as Transparency International are on hand to lend assistance in developing the knowledge base necessary for us to take this challenge on. Other civil society groups are poised to act collectively and coherently to spearhead the way. Civil society groups have been exploring citizens’ movement initiatives as a means for effecting change. I would like to believe that these explorations have resulted in a greater insight into the nature of the beast and what it is that we must do to attack it. They have also shown us how crucial it for us to come together as Malaysians to single-mindedly deal with issues of this nature, firm in the belief that the harm we suffer is a collective harm. The BERSIH initiative shows us just how far citizen movements can take us if we have the passion to declare ourselves Malaysians first, above everything else. Mismanagements and abuses of the nature disclosed by the Auditor General recognize no boundaries, be they religious, racial or economic.

We must at the same time find means to call to account those who have occasioned these abuses and those who are charged with the responsibility of acting in the interests of the nation. We must start at the top. Consider the Ministers, the Deputy Ministers, the Director Generals of Ministries. Consider the Prime Minister if we must. As the saying goes, the buck has to stop somewhere. And, as unpleasant as it is to think, it is with these individuals that responsibility lies.

We must embark on what some are referring to as audit activism. If the Government is not prepared to account then let us force an accounting on the Government. It is only through this that we can begin to make inroads into the fortress of in-accountability that has been built on the votes that we gave to the Government.

Malik Imtiaz Sarwar
President, National Human Rights Society, (HAKAM)
13th November, 2007

Monday, November 12, 2007

A Note On Comments

I have had to reject comments posted on this blog more frequently in recent times. I would like to explain why with the hope that those of you who have not had your comments published will appreciate why this was so and perhaps see how you can have your viewpoint published.

I do not have any difficulty with publishing views critical of me or of my own points of view. I welcome such criticism as it is crucial for the development of any discussion on any subject. I do not believe that it is only my point of view that is correct to the exclusion of all other points of view.

Having said that, I will not entertain any comment whose author does not appear to have any respect for the subject of discussion or the art of discussion. Though I do not expect any of these authors, or those who share their perspectives, to respect me, I do expect that they will respect the readers of this blog and the laws of this country. I have therefore rejected, and will continue to reject, comments that are racist, inflammatory without substantiation, contain hate speech, sexist, obscene, contain profanity and so on. I have also rejected, and will continue to reject, comments that state facts without verification.

I do not need to be called 'Keling' or invited to an execution or face the rubbishing of persons of any ethnic or religious backgrounds regardless to understand a point of view. If you are going to be insulting, then do so in an intellectual manner and, if you have the courage to do so, put your name to the insult. I would be more than happy to hear from you and to share your views with the readers of this blog.

I am not concerned that other blogs or sites have shown a willingness to publish such comments. While I advocate free expression and would defend your right to express yourselves, I do not see such comments as advancing the freedom of expression. I do not see the rejection of such comments as undermining the same freedom. State your point of view constructively, be as aggressive as you want, respect others, and I will publish your comment.

For those of you who feel that comments were unreasonably rejected, please e-mail me at

If any of you have views on this note, I would be glad to hear from you.


Congratulations BERSIH and Malaysian Civil Society

My heartfelt congratulations to the organizers of the BERSIH 10-11 March and to all Malaysians who made the event what it was.

I was on the Bar Council Urgent Arrest response team and found myself waiting on the side-lines for the SOS calls we were anticipating. Thankfully, the calls were few. The events of Masjid Jamek aside and, in my view, the unnecessary arrest of some of the demonstrators, I think the Royal Malaysian Police showed commendable restraint and foresight, a state of affairs which deserves recognition. I believe that it is largely due to this restraint that the event did not become the chaotic melee that some of us were anticipating it might become. The events of Pantai Batu Buruk and Bloody Sunday are still fresh in the minds of many Malaysians.

There were arrests though and as the evening drew to a close, I found myself with a few other lawyers at the IPK KL on Jalan Hang Tuah. The 34 who were arrested were all released by 11.00 pm Saturday evening (the Suaram web-site has details). While the police officers we dealt with were friendly and courteous, the lawyers were not permitted entry to the police station nor any opportunity to meet with our clients. This ran counter to recent amendments introduced to the Criminal Procedure Code that entrench the right of a person arrested to meet with his lawyers before giving a statement to the police. Statements were taken despite our reminders to the police officers concerned of the rights of those detained.


With R Sivarasa, lawyer and Keadilan EXCO member, and Shan Kanesalingam, lawyer. Outside IPK KL.

Friday, November 2, 2007

The Judiciary Must Act

Tun Ahmad Fairuz has retired.

It feels as if everyone is breathing a little more easily. Not just because his retirement arguably marks the close of yet another turbulent chapter for the Judiciary, and as such for the Bar as well as the administration of justice, but also because it has allowed Malaysians to avoid the controversy that an extension of the term of Tun Fairuz would have as a matter of certainty caused.

Where does that leave us? For the moment in slightly calmer waters with Datuk Abdul Hamid, President of the Court of Appeal as acting Chief Justice. Datuk Abdul Hamid has distinguished himself as a judge at all 3 tiers of the superior courts and has several leading judgments to his credit. Though I do not agree with his reasoning in some of his judgments, I am prepared to say that Justice Hamid has struck me as a judge who has been consistently aware of his oath to uphold the Constitution and the significance of the Constitution in our lives as Malaysians.

It remains to be seen what the Acting Chief Justice proposes to do about the Lingam Video Scandal. Thus far the Judiciary has remained silent and civil society has not openly considered the role of the Judiciary itself in inquiring into matters that arise from the scandal. With Tun Fairuz having retired, the way is now open for the Judiciary itself to conduct its own internal inquiries, not only into matters arising from the scandal itself, but also into the systems in place for the appointment and promotion of judges, the way in which cases are scheduled before judges, the way in which judges are selected to form appellate benches to name a few.

This must be made a priority. We have heard CJ after CJ speak about reforming the system with a view to improving the levels of confidence in the Judiciary. Precious little was done. The video scandal and its implications has made it imperative for the Judiciary to walk the talk. The Bar is ready to assist, as it has always been as was made clear by the President of the Bar, Ambiga Sreenevasan in a follow up interview with Aniza Damis ('Video clip not doing judiciary any good', NST, 04.11.2007).

No comments were needed for this interview.


Spot Light: 'Video clip not doing judiciary any good'

Q: Is there a crisis in the judiciary?
A: There is. It's a crisis of confidence. It's been present for a while.

Q: What was it about the "Lingam" video clip that brought you to this climax?

A: It raised serious issues about the appointments' process, and the manner in which people who should not be involved in anything to do with the judiciary were heavily involved. For us, that was so stark. We felt we had to say something about it.

Q: Why walk? Why not just hand in the memoranda?

A: We have sent in memoranda to the judiciary and the government before, about the judicial appointments commission; we have raised it with the minister, we've even held a debate, between BN Member of Parliament Datuk Zaid Ibrahim and the minister (Minister in the Prime Minister's Department, Datuk Seri Nazri Abdul Aziz).

But, they (the government through Nazri) said they were not interested, unless it came from the judiciary. We think that's a non-starter. If you're asking the judiciary to change the system they like, it's not going to happen.

Q: Is the independent judicial appointments commission system a good system?

A: It's an excellent system. For its independence, its clarity and its transparency.

Q: The minister says if you want to change the system, you have to get the judges to change it. You don't think there are enough good men in the judiciary who would want to bring in that system?

A: We have many good men in the judiciary. If you were to do a survey, I think you would find even they, too, would want a change. What happens in other jurisdictions is that they set up a commission to look into it. But we haven't even got there yet.

I've no doubt there are good people in the judiciary; but there has been some resistance to the appointments system.

Q: Knowing that the government doesn't support the idea, why did you appeal to the government?

A: Well, we sometimes have to re-state our position. We updated our memoranda to show how many more jurisdictions have gone that way. It is not an interference of the judiciary (to set up an independent judicial appointments commission). Because what you are doing is strengthening the judiciary, that can never be interference. It's judicial reform.

Q: If the government were to set up an independent appointments commission, who would be the commissioners?

A: In the model we have suggested, the chief justice heads it. All the four office-holders (including the president of the Court of Appeal, Chief Judge of Malaya, and Chief Judge of Sabah and Sarawak) would be there. You would also have members of the public, the Bar, and the Attorney-General's Chambers. All the relevant stakeholders in the administration of justice would be there.

Q: Was the walk based on the belief the video clip was authentic?

A: I think the walk was based on all the things we've been saying about the judiciary requiring rejuvenation. We've been saying for so long, and I think the video clip made things absolutely urgent. We were very alarmed by what we saw on the video clip. We felt the video clip was not doing the judiciary any good at all, and has to be investigated. We were not prejudging anything in relation to the video clip. But there was enough there that gave us real cause for concern.

Q: Has the Bar Council done anything to approach the lawyer in the video clip?

A: A complaint has been lodged and the due process will take its course. We cannot interfere after that. It is with the disciplinary board.

Q: Had the main player in the video clip not been that lawyer, had it been any other lawyer, would it have mattered at all?

A: Of course. The fact that there can be any interference or manipulation of the appointments system is very worrying, frightening, in fact.

Q: So, if the lawyer had been a junior lawyer, and the judge had been a magistrate, would it have been as serious? Would it have resulted in the walk?

A: Absolutely. I think it would have made no difference. The fact of whether it was a senior lawyer or not is irrelevant to me. The very senior judge may well have made a difference. But to me, any kind of manipulation of appointments would have been very scary. Because of the ramifications, what does that do to all the cases that were heard?

Q: Lawyers don't chit-chat with judges about appointments?

A: The informal chit-chatting does go on, because there's no other way for the institution to know who are the good lawyers who should go up. So, where appointment of lawyers to the Bench is concerned, yes, that does happen. There's no harm in that. You can't stop people talking to each other.

Here, we are talking about a process where there is tremendous influence by parties who shouldn't have an influence in the process.

Q: If the government were to agree to a royal commission tomorrow, what would you want it to do?

A: To investigate the current state of the judiciary, and its appointments and promotions process, and how it can be improved. The issues in the video clip have to be investigated, to see whether any of those things actually took place at that time.

You would get the public coming forward, which happened in the royal police commission. Once you start that process, you would get a lot of information. When you do that, we would know exactly what has been happening in the judiciary.

Q: Why do you think no one has come forward to the panel?

A: Because the panel doesn't have powers to protect anyone; they don't even have powers to protect themselves. Despite the assurances that have been coming out, they don't think the panel can give them the protection they need. If it had the powers of a royal commission, they do have powers to protect.

Q: Would a royal commission really be able to give protection?

A: It gives more protection, at least to the evidence that is given, so that the person cannot be sued or arrested for the evidence they give. That is the protection the royal commission can give. It's not protection to identity, but protection to the evidence that is given.

Q: (Datuk Seri) Nazri (Abdul Aziz) said if no one comes forward to the panel by the time it concludes its work, it is "much ado over nothing".

A: It would be very wrong to take that stand. If you are going to deal with it in such a perfunctory manner, it will be real cause for alarm. I think the problem with the panel, its lack of powers, has to be taken seriously. People are scared to come forward. Despite all the assurances by everyone, there's no actual statutory protection for the evidence, that is what is missing. How can you conclude there is no issue?

Q: The minister said if you really wanted justice done, you would come forward.

A: The criminal justice system very often relies on whistleblowers. The law has to protect whistleblowers. We do not, at the moment, have an act that does that. The fact the government and Nazri himself recognises we need such an act must mean that there is value to be placed on whistleblowers.

Perhaps the Attorney-General should come out and say he will give immunity, in respect of civil and criminal prosecution to this witness. Amnesty should be given to this witness. In the public interest.

If you recognise that a country needs a witness protection act, then you recognise the value of whistleblowers, you recognise they need to be protected.

Q: The minister said it's not the government's problem if no one comes forward.

A: The government has taken a step to look into it, it shows they feel there is an issue. If no one comes forward, all it means is that the step they have taken is ineffective. If it is ineffective, then they have to take a step that is effective, they can't just close it.

Q: If everyone keeps talking about a crisis in the judiciary, won't this scare away foreign trade?

A: All we're doing is speaking the truth. I don't think anyone should be stopped from speaking the truth. We do it because we know we have the potential to be a First-World judiciary. Public confidence is something very fragile; it comes from the opinion that people have. If steps are taken to reform, the confidence will come back immediately.

Q: If the government doesn't do anything, what is the Bar going to do?

A: I think the Bar will be wanting to have an emegency general meeting. This cannot just go away without a full and thorough investigation. That is something we hope to persuade the government that has to be done.

Q: What options are open to you?

A: Our meeting with the prime minister -- that's a big option. And also by hearing from the members of the Bar at an EGM (on Nov 22), where we hope to communicate our views to the government. Those are the options we are looking at. We are still going to use persuasion.

Q: There was a suggestion at the recent Malaysian Law Conference for lawyers to go on strike from the courts for one day. Is that feasible?

A: We have discussed it. We have to be very careful in any steps we take. We have to be responsible -- first to our clients; secondly, we have to be careful not to pre-judge any issues. It's not something that we would easily do.

Q: The old chief justice is out. There is currently an acting-CJ, and there will be a new CJ. Have you thought of taking the minister's suggestion by going to the judiciary and asking them to reform?

A: We hope to write in and have a meaningful discussion, between the Bar and the Bench. We are hoping to see this new era, where there will be a lot of discussion. But even before this video-clip incident, the judiciary was already beginning to engage with the Bar. We were invited by the Chief Judge of Sabah and Sarawak (Tan Sri Richard Malanjum) to see the system in Sarawak. They are doing things to try to improve, and we want to help in that process.

So, we do know that there are judges there who will engage with us. And we hope to continue with that process, and that we start this new era where we work together, in the interest of the administration of justice.

Q: The government says it's not going to reform the judiciary unless the judges want the reform.

A: Well, let's see. It may be something everybody can be united on. Hopefully soon.