Friday, December 21, 2007

Lost In Transition?

My posting "Race And The Poverty Gap" caused some agitation. I tried to clarify and explain my position in my replies to comments made by some of you. I hope that all of you who have not read those comments and replies will take the time and trouble to do so. They are interesting and important for a more nuanced understanding of the issues.

Those of us who want a better Malaysia want change in some form or other. The inadequacies of government, the mismanagement, the corruption are matters that are driven by factors that transcend the racial and religious boundaries.

We all suffer from their impact.

The value of the Ringgit declines as the cost of living increases even as the quality of those state services (for which we pay taxes) that have not been privatised (read: handout to those who benefit from the concessions. Our taxes were invested for the development of the state enterprise that was then sold for a song to the concessionaire. Our taxes were also used to buy back the failing enterprise from the concessionaire. Or will be). If we have a choice, we do not send our children to government schools, we do not get treatment from government hospitals. We try to avoid anything to do with the government service as much as possible. Not only for the guaranteed inefficiency but because many have serious doubts as to the quality of these services.

This was not the case before. Something changed along the way. It may have been less discriminating standards being applied in the enthusiasm of affirmative action. It may have been less concern for safeguards, increasing levels of corruption and the increasingly politicized landscape. Whatever the reason or reasons, things changed. And the BN government allowed for it to happen, perhaps even drove that change for reasons that are not readily apparent.

Things are at a point where Malaysians want an improvement. Some say that the system is so riddled with deeply entrenched problems that only a total change of government will allow for the changes necessary to put us back on track.

At first blush, this is an attractive proposition. It envisages a rebirth, a clean start. And if we were debating for the sake of debating, I could think of many ways to defend the proposition. We are however dealing with a reality that requires a consideration of practicalities. This is not to say that the ideal should not be abandoned; I myself wish for a rebirth. The road to that end must however be laid in such a manner so as to allow us to avoid pitfalls and obstacles.

What are these pitfalls and obstacles. A seeming lack of political will on the part of the Government for reform and the machinery to quell any attempts to mobilise (read:ISA and other anti-democratic laws) is obviously one of the greater difficulties. Leaving that aside for another discussion, I would like you to consider the number of voters that actually embrace the prospect of change as fervently as others might.

For these persons, and I believe the number is significant, change signifies instability. There is a great fear of the uncertainties of a regime change. For them, these uncertainties do matter. And the idea of simply giving the untested a "chance" on the premise that "things could not get any worse" is not attractive simply because things are not that bad in their minds and a revolution would mean chaos.

It is not sufficient to dismiss these views are being self-serving and aimed at perpetuating the benefits these individuals, and those like them, derive from the system. To conclude such one would have to assume that all these individuals are benefiting in this way. I do not think this is the case. Think about the civil servants, professionals and wage earners, many of whom share this view. These groups are made up of persons of diverse racial and religious backgrounds.

For any change, those that share this view must be given basis to feel comfortable with the idea of change. Without the support of these groups, the necessary changes cannot be brought about.

There are two ways of approaching this challenge. One way is to guarantee them that nothing is going to affect their ability to provide for their families, that their security will not be undermined. I will refer to this as the Guarantee Factor.

The other way is to feel that even if there is a period of instability, the gains that will be made, through the improvements or changes that are being promised, will be such that the risk of changes is worth taking. I will call this the Calculated Risk Factor.

The Guarantee Factor requires a belief that the new 'regime' is in a position to do what the old one could not. This is where exposure to those who make up the new, not just through campaign rhetoric, but through coherent planning and, if possible, action. As I have said elsewhere, while we hear a lot from those who make up the Opposition about what is bad with the Government and how it fails us, we hear very little about how the Opposition intends to deal with the issues of governing the pluralist, uneasy compact that Malaysia is. In these circumstances, how is it that those who need assurance are expected to feel that their future would be in good hands.

Running a country is a difficult thing to do. I referred to the solidarity movement in Poland to make the point that despite the idealism of the movement and its incredible influence, when it came to do to running the country, the inexperience of the solidarity government in matters of governance led the nation into significant difficulties from which Poland only of late began to evolve out of in a manner far removed from the socialist utopia that those in the movement dreamed of.

The Calculated Risk Factor requires a similar projection of a future in which the Opposition will play a more significant role. But as I have said already, what material is there on which Malaysians are to form a view.

The lack of seemingly credible alternatives paralyzes, makes people seek refuge in the familiar.

My aim has never been to suggest that the Opposition could not govern, but rather to question the premise of the Opposition's assertion that not only could it, but it could do better. The doubts are compounded not only by the distinct ideologies of the opposition parties (for example, compare and contrast the Islamist ideology of PAS with the the secularist positioning of DAP) and by the fact that the the three primary opposition seem unable to work together. It is not unreasonable for some to conclude that the Opposition is in a state of disarray. Each primary party appeals to its own constituency and suffers the existence of the other. Each is marked with its own distinctive, and some might say doubt causing, features.

This being the scenario, my view is that the Opposition must start taking steps towards addressing these very valid concerns. The value the Opposition holds for Malaysians is its ability, if significantly represented in Parliament, to provide a counter-balance to the exercise of power. An insignificantly represented Opposition has negligible value and allows for power to concentrate absolutely. And, as we all know, absolute power corrupts.

The Opposition must therefore convince voters who do not already support its cause) that it does not intend to destabilize the nation, either directly or indirectly. My sense is that while there is little doubt as to bona fides of the intention of the Opposition (though, having said that, the Islamist and Malay rights positioning of PAS is worrying for many), there is serious concern as to whether the Opposition is paying enough attention to the question of what happens after. One way in which this could be done is to focus on increasing support through the promise of enhanced accountability a stronger Opposition will allow for. This is an approach that does not alienate nor threaten and may allow the necessary transition to rebirth.

Happy holidays to all.


Wednesday, December 19, 2007

BERSIH led by the opposition?

The Singapore Straits Times has a report in its edition today captioned “Activists in KL threaten more marches". Significantly, the sub-caption reads: “Opposition-led group warns of protests if ‘biased’ head of election body is not removed” (Malaysiakini has the story too, under the the caption "Bersih activists warn of further protests").

I say significant because though BERSIH was conceived as a civil society initiative in which political parties participated (as opposed to lead) on the basis that political parties, and by this I mean, all political parties, are a part of civil society, it appears that the initiative may have now evolved into a political vehicle. Judging by the article in the Singapore Straits Times, it would appear that this is a perception that some have.

The call for electoral reform is a reasonable one. It is apparent that the system is not a perfect one, both institutionally and in the way it is managed. After the last General Election, Keadilan applied to the High Court for declaratory orders as to how the Election Commission should conduct elections in general. This proceeding was prompted by a desire to clear ambiguities that had become apparent during the last General Election and which marred the public dimension of the General Election. Despite a clear representation that the declaratory orders were not intended to challenge the result of the elections, that being the province of the Election courts and election petitions, the High Court dismissed the action for that reason.

A significant amount of empirical evidence of irregularities and perhaps even improprieties as to the electoral role has been collated. This at the very least warrants close scrutiny of the electoral role as well as aspects of the process itself, and, following that, a public accounting. I believe that this is necessary for the Government to say that Malaysians have sound basis for confidence in the electoral system and for a belief that there are in fact Free and Fair Elections in Malaysia.

It was a desire for such an effort that prompted civil society to found BERSIH.

Being a civil society initiative, BERSIH could say with reasonable certainty that it was a citizens’ movement. The participation of opposition parties in itself ought not be seen as being negative or undermining of the nature of the initiative. The experience of these entities is invaluable for an understanding of the electoral process. Further, I believe that initiatives like these must be inclusive and not exclusive.

Having said that, to allow for a situation where political parties lead, or are perceived to lead, the initiative is then to allow for the creation of a political dimension that is undermining of the objectives of the coalition. This is for two reasons. Firstly, by allowing for political parties to be seen as leading the initiative, it would be natural for some to assume that the initiative is geared towards assisting these parties. If they are, as in this case, political parties that have not been significantly successful in the last elections, it would not be unnatural for some to think that the assertions of irregularities and improprieties are to an extent a manifestation of the frustration of these political parties at losing. The validity of these assertions would then be undermined or even compromised.

We have in fact heard suggestions of this nature from the Government already. This does not augur well for the initiative, especially when it is the political parties that make up the Government that were successful at the last elections.

Secondly, and this more the case in countries like Malaysia where opposition political parties have only limited means to reach out to the rakyat, every opportunity for public positioning of the opposition’s agenda is invaluable. It would, as such, not be unreasonable for some to conclude that the initiative is then being utilized for a political end distinct from the objective of electoral reform. It would not be unreasonable to even form the view that the initiative has been hijacked by the political parties as, in general, a political agenda and methodology are by the nature of the political process distinct from those of civil society.

At the press conference held last week during which a joint memorandum was issued asking for an appointment for a discussion with the Prime Minister, civil society representatives emphasized that their aims were to be distinguished from those of the political parties present. It is apparent to NGOs involved in the issues arising that that there are matters of concern to citizens that require urgent attention and due consideration. It is also apparent that there are those who feel that their cries for reform or help are being summarily dismissed, ignored or blocked out. The willingness of ordinarily placid Malaysians to march is indication enough of a sense of frustration. Independent of the political dimension, these are matters that need to be addressed constructively.

The meetings that have been held between Indian NGOs and the Prime Minister is, I believe, a constructive process. I am grateful for the fact that the Government has not seen it fit to dismiss the grievances of the Indian community after having condemned and acted against HINDRAF. I had expressed a concern as to the possible ‘chilling effect’ of the Internal Security Act detentions (to which I am opposed) on the process of airing these grievances. I am hoping that the Government will approach the question of electoral reform in as constructive a fashion.

Seen from this perspective, the perception that BERSIH is being led by politicians for, possibly, political gain is worrying.

Civil society has much to offer and its value should not be permitted to be undermined. The limited space that civil society has been successful in carving out for itself should be jealously guarded. The effects of the potential damage to the initiative by reason of a perceived political agenda will linger far longer than the political usefulness of the initiative.

The steering committee of BERSIH must therefore take steps to urgently address those factors that have allowed for a perception that it is being led by the opposition if in fact it is not. If it is, then civil society may wish to reconsider the level of involvement of political parties in BERSIH.


Tuesday, December 18, 2007

Race And The Poverty Gap

I have been traveling since last Friday. Internet access has not been a certainty and will continue to be irregular.

Being in new and different places is useful. It shows how different things could be, or how similar they are.

In Jakarta, the tower blocks reach out to the sky with the same ambition of the new projects being developed in Kuala Lumpur. They less successfully block out the squalor and poverty than ours. A small group of elites unthinkingly spend more on one meal out than most families earn in a month. They shop at designer shops that rival, or even beat, those in the best and most prestigious shopping localities in Kuala Lumpur. The elites, like those elsewhere, shape policy through their investments, their influence and support, hold their nation to ransom. The poverty gap widens every day and this is justified in the name of development and progress.

Much like it is in Malaysia.

This does not necessarily suggest a devious and sinister plan on the part of the administration. It could be simply a matter of perspective on what is needed, and as such what is expendable, for democracy. In Poland, the solidarity movement, spectacular for its validity and credibility, caved in to the free market, unleashing the beast, simply because the new democratically elected administration could not see any other option. More than 20 years later, there is a level of poverty and want in Poland that Lech Walesa possibly never saw as even a remote possibility as he pushed the movement forward. There is also unimaginable wealth.

I have increasingly found myself wondering what the guiding principles of the Malaysian administration policy on development and progress are. If there is such a policy in the first place. It sometimes feels as if there is none.

The 5 year Malaysia plans do not qualify as such, they do not allow us to understand the government's vision of where we will be in the next 30 years, other than in highly ambiguous and speculative terms. It is evident that there is a widening poverty gap, and the majority of the Malay community are falling victim to it as much as the other communities. From this, it appears that the societal safety net that a significant amount of tax goes to is not closely knit enough to prevent a significant number of Malaysians from falling through the gaps.

Leaving aside the extremist language of the HINDRAF campaign, the seemingly far fetched assertions of ethnic cleansing and state sponsored terrorism, this is what is being said: a significant number of the Indian community, predominantly tamils, are falling through the gaps into the poverty trap. In appreciating that many Malays have also fallen through the gaps into the same traps, we may be able to draw parallels and understand that racialist notions may not be the driving force behind what it is that ails Malaysia.

My sense is that it is the seeming absence of a coherent plan for sustainable and inclusive development. That is why many a Malaysian asks 'where will we be in 3o years?', 'will my children have a future in this country?'. These are questions that transcend racial boundaries. They are concerns that all of us share as we strive forward.

Malaysians are however fixated on race and religion, mainly because these are the staples of our public discourse. These are undermining, not only because they are divisive factors, but because they distract from the core issues. Insufficient attention is consequenty given to those aspects of our society that crucially require it. This is something that the Barisan Nasional has not let on that it understands. In this way, the pleas of the rakyat for accountability are not so much about a desire for a shift of power but rather an urgent call for more effective action on the part of the administration.

Many feel that time is running out. Oil reserves are depleting, there has been insufficient investment in human capital to allow us to reinvent ourselves effectively by break ing into new areas and seemingly increasing systemic corruption is a major deterrent for investment. Malaysia is fast losing ground, falling behind others of comparable development or potential as its ability to compete steadily dips.

There is no magic solution, a perfect answer.

At a forum earlier this year, I said that shifting leadership to the opposition - assuming that was practically possible - is not the answer. The opposition has no experience in governance. As much as some might say that the Barisan Nasional goverment could do things a lot better, a view I share, the BN government has an experience base of some 50 years to draw on. Solving the difficulties we are in calls for a greater commitment to fundamentals, an even greater willingness to account (as I understand things, this is the focal point of civil society efforts this year) and an understanding of the very real need to harness more effectively a collective viewpoint on development and progress.


Friday, December 14, 2007

In Solidarity

We are, in ways small and great,
The figures, the myths and legends
That we ourselves have invented.
Our dreams are self-portraits.
Our myths, our heroic legends,
Are the concealed autobiography
Of the human race
And its struggles
Through darkness to light
And through higher darkness again.

('Mental Fight', Ben Okri)

HINDRAF 5: ISA Detentions Side-Step Justice System

What need was there to detain the HINDRAF five under the Internal Security Act?

The ISA is a draconian law. It has no place in the modern and mature society that Malaysia is. It has been condemned internationally and locally. The manner in which the ISA allows for subjective detention without trial is violative of the fundamental liberties of persons detained in a manner that cannot be justified in any circumstance.

The Government’s position is that the five are threats to national security and public order and that they are a menace to the public for having lied about the Government in accusing it of ethnic cleansing, for having organized illegal assemblies and for having had links with terrorist groups (‘5 Hindraf leaders a threat to national security’, NST, 14.12.2007).

These accusations reveal the possibility of the five having engaged in criminal activity. Three of the five have already been charged with sedition (though I wish to stress that I do not view the offence of sedition as being constitutional). Chapter VIA of the Penal Code was recently added to allow for the prosecution of persons involved in terrorist activity. Appropriate arguments could be mounted to oppose bail to ensure that pending the trial of the five, they would be prevented from fleeing the jurisdiction and, arguably, from repeating the offensive activity.

We cannot lose sight of the fact that no matter how heinous the activity complained of may appear, accusations remain mere accusations until and unless they are made out in a court of law. Every person is presumed innocent until proven guilty in a court of law.

The detentions are therefore clearly preemptive, allowing for a side-stepping of a criminal justice system that is aimed at ensuring that no person is denied his constitutionally guaranteed right to liberty save where it is denied through an exercise of judicial scrutiny replete with inbuilt safeguards aimed at ensuring that an innocent person is not mistakenly imprisoned.

The Government would have us believe that rather than preemptive, the detentions are preventive. The crucial question is on whose account. The Government can hardly be considered to be objective bearing in mind the cause HINDRAF espouses. We have heard much of the Government having taken grave exception to the positions HINDRAF has taken. In the very public fanfare surrounding the official reaction to HINDRAF, we have been made to understand that the Prime Minister is angry at the suggestion of ethnic cleansing. He is outraged at the lies that he feels HINDRAF has allegedly told of his Government ('Governmnent doing its best for Indians', NST, 02.12.2007; 'PM: They want to destroy the country', Malaysiakini, 13.12.2007). He is also, by virtue of being the Internal Security Minister, the authority responsible for the issuance of detention orders.

Anger is not sound basis for objective decision-making. It is further not a proper legal basis for the issuance of a detention order.

In the same vein, political expediency cannot be allowed to become a factor, more so where the detentions are a ‘face saving’ measure. And as much as the Government may deny this to be the case, the truth is that the Government is acting in its own cause. This is as compelling a reason as any to not invoke the subjective processes of the ISA.

The Prime Minister has publicly declared that the authorities have evidence of the alleged terrorist links HINDRAF is said to have ('Close watch on Hindraf', The Star, 08.12.2007). Minister Nazri has also publicly declared the existence of such links ('Link is with Tamil Tigers and India's Rss, says Nazri', The Star, 08.12.2007). If this is the case, then there is more reason for the five or any number of other persons involved to be appropriately charged and prosecuted.

The detention of the HINDRAF 5 may also have the retrogressive effect of, by reason of its ‘chilling’ effect, stifling genuine civil society efforts aimed at promoting discourse on the path this nation must take to ensure sustainable and inclusive development. This would include efforts by various interest groups aimed at addressing the underlying grievances that have caused citizens to peaceably assemble these past five weeks or so. It would be regrettable if these groups, in particular that part of the Indian community that, no matter the rhetoric and the politics of the situation, have felt represented in a way that they have not before were to take from the detentions a signal that the Government does not consider their situation and grievances as being of sufficient importance.


Friday, December 7, 2007

Apppointment Of President, COA: Await Outcome Of Enquiry

The radical step of nominating Tan Sri Zaki Azmi the President of the Court of Appeal conclusively shows that the Government is blind to the crisis that the Judiciary, and consequently the legal system, is in the throes of. It also shows that the Abdullah Badawi administration views the Judiciary in much the same way the Mahathir administration did; the Judiciary is there to serve the Government’s interests, and not those of the nation (I say nominating as media reports indicate that the Yang Dipertuan Agong is yet to fix the date of appointment (see, for instance, ‘Abdul Hamid is new CJ, Zaki is judiciary’s No 2', Malaysiakini, 05.12.2007).

I do not intend to call into question the appropriateness of the decision to elevate Tan Sri Zaki to the bench. I have had the privilege of dealing with him as a lawyer over a period of time, and more recently as a judge, and have always found him to be courteous, incisive and approachable, key attributes of a good judge. His appointment as President is however, notwithstanding, a basis for concern.

Tan Sri Zaki is amongst the most junior members of the Judiciary, if not the most. He is the most junior Federal Court judge. He has to date only some two months experience as a sitting judge. This is in stark contrast to other justices of the Federal Court and the Superior Courts as a whole.

An appointment as one of the four office bearers of the Judiciary is a matter of pride. It is undoubtedly the aspiration of all judges to end their career at the Federal Court, if not as one of the four office bearers. The question of appointments to office as such has a very human dimension. Like all of us who serve, recognition of dedication and quality is signaled by promotions. This is true also for judges.

Many have called into question the constant bypassing of senior judges for promotion to the Court of Appeal and the Federal Court, for good reason. Over the last decade or so, we have witnessed a startling increase in the number of promotions of junior judges over their senior counterparts. The Bar has repeatedly made calls for the establishment of an independent judicial appointments and promotions commission. At its recent Extraordinary General Meeting, the Bar called on the Judiciary to support the move towards the establishment of such an independent commission.

In his opening address at the Malaysian Law Conference this year, His Royal Highness the Sultan of Perak expressed disquiet at the erosion of public confidence and a nostalgia for a time when the Judiciary was respected throughout the Commonwealth. Much of this erosion stems from the manner in which judges have been appointed and promoted.

Judicial morale is at a low just as public confidence is. Judges are uncertain of their futures, frustrated at the seemingly arbitrary manner in which promotions are handed out. It would not be unreasonable that many wish for a better, more effective and more respected judiciary. This sad state of affairs needs to be addressed. The Bar has maintained, correctly so, that its calls for reforms are not an attack on the attack on the judiciary. They are instead a defence of the Judiciary, its members and the legal system.

In this context, it is manifest that the nomination of Tan Sri Zaki as President can only send the wrong signal to Judges. Coming as it does so soon after his unprecedented direct elevation to the Federal Court, it suggests that there is no one worthy of the position in the Judiciary as things stand. It also strongly suggests that the Government itself has no confidence in the Judiciary.

It also sends the signal that the Government wants to retain control of the Judiciary. Tan Sri Zaki’s history of service to UMNO is not in itself a disqualifying factor for elevation to the bench. However, the special arrangement made for his direct elevation to the Federal Court and the alacrity with which the Government recommended him for the post of President, so soon after the refusal of an application for an extension of the term of Tun Ahmad Fairuz supported by the Government, is cause for concern even if limited to purely the realm of perception.

This is more so for the fact that one of the implications of the Lingam Video is that the Government has been interfering in the affairs of the Judiciary in a manner not countenanced by the Constitution. The fear is that this trend continues.

None of this augurs well for an ailing Judiciary. One wonders how many more shocks it can take.

One of the concerns that civil society groups and the Bar aim to raise before the Royal Commission of Enquiry on the Lingam Video is the need for an independent and transparent appointments and promotions mechanism. It is a widely held view that such a mechanism would go a long way in helping the Judiciary avoid the fallout of incidents such as the Lingam Video affair as well as addressing concerns about unwarranted Government interference.

In light of these concerns, and the crucial need to ensure higher levels of confidence in the Judiciary, it may be appropriate for the Yang Dipertuan Agong to defer the matter of the President, Court of Appeal, until after the Royal Commission delivers its findings. This would have the additional benefit of prompting the Government to act with greater urgency to address the unparalleled judicial crisis that the nation is currently confronted with.


Free The 31

31 persons who participated in the HINDRAF rally have been charged with attempted murder. From a report by Malaysiakini (‘Attempted muder charge for Hindraf protestors’, 04.12.2007), it appears that the charge has been framed on the basis of an apparent intent to murder a police officer, Dadi Abdul Rani. The so-called attempt was alleged to have occurred during the debacle at the Batu Caves.

Let us leave aside the merits or de-merits of the charge for the moment and consider their context. The events at Batu Caves are now notorious. The version presented by the police was that they were compelled by circumstance to resort to tear gas and water cannons. The objective evidence (see Jeff Ooi's Minority Report series) points to a very different scenario; in the early hours of 25th November, persons at Batu Caves, and I use the word ‘person’ advisedly as it is not clear at all that these persons were going to participate in the HINDRAF rally, were corralled into the Batu Caves temple compound. Police officers then launched an offensive using tear gas and water cannons. It was during this melee that bricks and pipes were apparently thrown, it would appear in response to what the police were doing.

The Attorney General is quoted in the Malaysiakini report as saying, "They threw bricks at his head. Do you think it will not cause death?".

It does not follow that every person who throws a brick at someone intends to commit a murder. To have charged the accused for attempted murder, the Attorney General in his capacity as Public Prosecutor, must have been satisfied that every one of the 31 persons had intended to cause grievous harm to Officer Dadi of such a nature that his death was not unforeseeable. The Attorney General must be satisfied that there is enough evidence of such intention, and of actions motivated by such an intention, that were such evidence left unrebutted, a court would convict the 31 persons.

The Attorney General appear to think that there is sufficient evidence. From reports, this appears to be on the basis that anyone who threw a brick at the head of someone would have reasonably foreseen that the target might be injured to an extent that the target died.

In my view, this would not be sufficient. There has to be evidence that these 31 persons specifically attacked Officer Dadi. There has to be evidence that having chosen to attack Officer Dadi, these 31 persons then proceeded to attack him in such a way that his death by such attack would be foreseeable.

The events at Batu Caves, in my view, and I have not had sight of the charge sheets, do not allow for a clear conclusion of this nature to be drawn. Is the Attorney General saying that police officers who have beaten demonstrators or participants of rallies with batons on their heads are also culpable for attempted murder? Is he saying that the police officer who drew his firearm and shot 2 persons at Pantai Batu Burok also attempted to murder the persons he shot. I think not, not because the Attorney General has turned a blind eye to those events but because the actions of those police officers, as offensive as they may have been, simply do not form a basis for such a conclusion.

If they do, then the Attorney General is guilty of selective prosecution. Though in law the Attorney General as the Public Prosecutor has the absolute discretion to charge a person of a crime, this discretion not being justiciable, his discretion must be exercised in an even handed manner and not at whim and fancy. The Federal Constitution guarantees equal protection before the law. This precludes arbitrary invoking of legal process.

From this perspective, it is not unreasonable to think that the decision to charge may have been prompted by other considerations, principally a desire to stamp out any attempt to express disagreement and frustration with the way things are. The discretion to mount prosecutions has in this way been harnessed to the machinery of a government that tolerates little or no resistance as it engages in a perverse political dance with the leaders of HINDRAF.

How else does one explain the fact that the leaders of HINDRAF have not been charged with any crime though, if one believes the statements made by the authorities, there is sufficient basis for a prosecution? How else does one justify the presence of the Attorney General, recently returned from the International Court of Justice in the Hague, in the Klang Sessions Court?

The decision to charge the 31 of attempted murder, paving the way to a refusal of bail, was cruel. Though attempting to inflict bodily harm is not to be condoned, the authorities must see that the 31 and their families, their children, have been made pawns. They have been made to suffer, and will continue to do so as they await their trials, for nothing more than being in the wrong place at the wrong time.

Free the 31.


Tuesday, December 4, 2007

A Thought On Rallies: The Bar, BERSIH, HINDRAF And Those To Come

"At the start of the dictatorships in Chile, Argentina and Uruguay, the only public gatherings permitted were shows of military strength and football matches. In Chile, wearing slacks was enough to get you arrested if you were a woman, long hair if you were a man. "All over the Republic a thorough cleansing is under way," declared an editorial in a junta-controlled Argentine newspaper. It called for a mass scrubbing of leftist graffiti: "Soon enough of the surfaces will shine through, released from that nightmare by the action of soap and water."

In Chile, Pinochet was determined to break his people's habit of taking to the streets. The tiniest gatherings were dispersed with water cannons, Pinochet's favorite crowd control weapon. The junta had hundreds of them, small enough to drive onto sidewalks and douse cliques of school-children handing out leaflets; even funeral processions, when the mourning got too rowdy, were brutally repressed. Nicknamed guanacos, after a llama known for its habit of spitting, the ubiquitous cannons cleared away people as if they were human garbage, leaving the streets glistening, empty."

(Naomi Klein, 'The Shock Doctrine')

"In spite of fairly regular multi-party elections and some other features requiring accountability of the regime, the Malaysian state has been authoritarian since the colonial period, though analysts have charcterised the political system as semi-authoritarian, semi democratic, or quasi-democratic. Although these qualified descriptions suggest that some democratic aspects and forms remain, most of the minimal conditions necessary for the practice of democracy in the Schumpeterian sense, particularly fair elections, adequate opportunities for independent political opinion-making and political organisation, and minimal protection for the individual from arbitrary state power, hardly exist in Malaysia. Further, as Crouch points out, even the minimal civil liberties and democratic procedures that exist are allowed as long as the position of the ruling elite is not seriously threatened, let alone undermined; he observes that such rights have been 'quickly modified or abolished when elite interests were threatened'. This has been true of amendments to the Federal Constitution and other legislation, as well as to the rules and regulations governing UMNO, which has increasingly enjoyed and deployed the powers and privileges of long term incumbency since 1955 in a seemingly one-party state."

(Terrence Gomez and Jomo K.S., 'Malaysia's Political Economy: Politics, Patronage And Profits')

Monday, December 3, 2007

Lingam Video: Who else for the Royal Commission?

I note from the report by Malaysiakini ('Royal panel: Ex-judge cum whistleblower 'pleasantly surprised', 28.11.2007) that Syed Ahmad Idid, the former High Court judge in discussing the intended Royal Commission of Enquiry into the judicial crisis had referred to the criteria suggested by HAKAM and asked “Who else is left?”.

We cannot lose sight of several key aspects of the discussion. If the motivation underlying the Government’s intention to establish the Royal Commission is sincere, its terms of reference will be designed to allow the Commission to consider all implications and ramifications of the Video. Further, the moral dictate by which the findings of the Commission will be given validity demand such terms of reference.

The implications and ramifications of the Lingam Video - ranging as they do from apparent interference by the Government into matters of judicial appointments and promotions to partisan decision making by judges in a manner contrary to the “without fear or favour” basis expected of independent judges - require that the comprehensive enquiry the circumstances warrant be conducted in a manner which leaves no room for doubt as to the integrity of the enquiry process and the findings.

Seen from this perspective, it is apparent that anyone who could be seen to have some interest or some axe to grind, would be a liability rather than an asset. It should not be open to anyone, no matter which ‘side’ they are with, to question the integrity of the enquiry process and the findings of the Commission. This is why the criteria suggested are so stringent and so far reaching.

The Commission does not have to be made up of a large number of commissioners. 3 or 5 members would suffice. Proper staffing arrangements could help the commission achieve the efficiency and efficacy expected of it. It is not unrealistic to expect that 3 or 5 persons of caliber fitting the criteria could be found. The Raja Muda of Perak, Raja Nazrin Shah, is one such person and could in light of his stature be invited to chair the Commission.

Should the need arise, assistance could be sought from international legal luminaries. There is precedent for this course of action. Judges from other commonwealth jurisdictions sat on the tribunal empanelled to try the former Lord President, Tun Salleh Abbas (judges from Singapore and Sri Lanka sat on the commission).

To this end, advice or recommendations could be sought from the International Commission of Jurists, a respectable organization whose mandate centers on the due administration of justice. Raja Aziz Addrusse is in fact a serving commissioner of the ICJ. The Judiciary and the Bar have enjoyed constructive relationships with international figures such as Michael Kirby, Justice of the Australian High Court, who have made outstanding contributions to the field within their respective jurisdictions as well as internationally and who would undoubtedly be in a position to ensure that the job was carried out and carried out as it ought to be.

The HAKAM criteria are the ideal. It is wholly unnecessary to jettison the ideal in favour of a perceived need for practicality. The matter at hand is one which allows for nothing less than the ideal.

Malik Imtiaz Sarwar
President, HAKAM