Friday, August 29, 2008

Why The Unholy Haste?

Many, including the opposition, are troubled by the unholy haste with which the DNA Identification Bill is being rushed through parliament. Their complaint is founded on two concerns. First, that the bill is not well thought through and substantially erodes fundamental safeguards intended for an accused under the criminal justice system. Secondly, that it appears that the principal aim of the exercise to target Anwar Ibrahim. To that end, he may be its first casualty.

That the timing is convenient cannot be disputed. It not unreasonably lends to an inference that the Government, and by that I mean the Barisan Nasional and more particularly UMNO, hope to be able to harness the significant prosecutorial advantage that the proposed statute offers to its own political benefit. However, in as much as one may question the propriety or even the morality of the decision to table the bill in the way it has been and the apparent complicity of the Speaker in that process, there is no legal obstacle to their doing so. The Speaker controls parliamentary process and the Barisan Nasional has a majority in parliament.

As such, if the Barisan Nasional has its way, and it appears that it will, the bill will be law very soon. This does not however necessarily mean that the law is constitutional. I do not think it is for rendering the right of an accused to a fair trial predicated on the presumption of innocence illusory. In this, I share the reservations so succinctly expressed by Mr Edmund Bon, Chairman of the Bar Council’s Human Rights Sub-Committee. These were set out in Malaysiakini (DNA Bill tabled for second reading; August 26th 2008) and I take the liberty of setting them out here:
  • There are no safeguards in relation to the storage and testing of DNA samples and for DNA profiles as well as how they are to be handled. No regulations were prescribed.
  • No provision for the accused to do his or her own independent DNA test which means that the accused have no way of testing the authenticity of the DNA sample claimed to be his or hers.
  • Categories of persons from whom samples may be taken from are to arbitrary and wide meaning that regardless of whether or not one is being investigated for an offence, DNA sample can be extracted from them.
  • Criteria and power safeguards are lacking in relation to suspected and convicted persons rendering it susceptible to manipulation
  • Privacy rights is illusory and those who refuse to provide samples will be subject to punishment and criminalisation
  • The bill would mean that those who have not been charged or convicted prior to the passing of the bill would be affected by it
  • Destruction of samples should not only be permissive but mandatory after a certain period of time as this provision will leave the head of the DNA databank discretionary powers to do anything with it.
  • Clause 18 of the bill gives no assurance that the extracted DNA sample is not to be used and stored somewhere else after it has been used for a particular case.
  • Clause 24 of the bill states that the extracted samples are conclusive evidence which means that the court and the accused have no authority to question the process of the DNA profiling.
  • Without proper DNA data protection laws, the power to export DNA samples to foreign law agencies should be curtailed all together.
I do not take issue with the need for law on the subject, many other jurisdictions have legislation in place to allow for DNA profiling and testing. Any law introduced to achieve the stated aims must however not undermine the rights of an accused person. The proposed law regrettably does exactly that. As noted by Tommy Thomas, a senior constitutional lawyer, in an interview with Aniza Damis of the New Straits Times (Spotlight: CSI Malaysian style; 24th August 2008) the proposed law in effect allows for a reversal of the presumption of innocence. It will compel an accused person to prove his innocence by battling the purported conclusiveness of evidence collected. These are serious concerns that warrant closer scrutiny.

In the current climate, the fact of judicial scrutiny being brought to bear is not sufficient to assuage these very grave reservations. The trial courts will apply the law as enacted and, judging by recent precedents, will be compelled to take an unduly narrow view of the freedom of an individual to a fair trial in these circumstances on the basis of parliamentary, as opposed to constitutional, supremacy. Added to this is the fact that serious concerns have arisen as to the independence of the Judiciary, particularly in light of the conclusions of the Lingam Commission of Enquiry. Confidence in the judiciary is at an all time low and measures aimed at restoring confidence are still very much on the drawing board.

The provisions of the proposed law also give significant powers to the police, an institution whose integrity was brought into serious question by the findings of two prior Royal Commission of Enquiry, one pertaining to an assault on Anwar Ibrahim. As with the Judiciary, recommended measures are still merely a matter of rhetoric.

Given that the implementation of the measures in the proposed law are left to institutions which, as a matter of public record, have been shown to be amongst other things open to abuses of power, including on matters pertaining to Anwar Ibrahim, it is not unsurprising that many fear the worst where the trial of Anwar Ibrahim is concerned. Circumstance lends legitimacy to the fears being expressed.

For all these reasons, it would be a matter of common sense for the Government to stay its hand on the bill to allow for the more comprehensive consideration that so many stakeholders are calling for as well as implementing measures aimed at restoring confidence in these institutions. The Government has, after all, already waited some seven years and, surely, a while longer will not cause any further harm. Conversely, further damage will be done to the Barisan; its already low levels of support may be eroded further by what is being perceived as a display of belligerence and unfairness.


Wednesday, August 27, 2008

Thank you, Permatang Pauh

...for shoring up my faith in what is right
...for showing me what is wrong
...for revealing that the Malaysian way is just that, nothing more, nothing less
...for showing me that it mattered that I cared
...for showing me what it is I need to be, to be a better Malaysian

...for a future

and the Malaysian dream...

thank you, Permatang Pauh, for showing us who and what, and why and when we could be everything we were too scared to be...

thank you for Malaysia


Tuesday, August 26, 2008

Voting For The Future

(I had submitted this piece to the Malay Mail for my column on 26th August 2008. The management decided that it was better "held over" in "deference to our journalistic tenet that Opinion pieces are edited solely on form, never on content" (as appeared in the print version, p 15). I wish to express my gratitude to the editors for taking a stand that circumstances necessitated - it appears that the Home Ministry has been overly sensitive over media reporting on matters pertaining to Anwar Ibrahim - in the way they did. It underscores the point I attempt to make in my comment)

On March 8th, Malaysians voted in rejection of political hegemony and the arbitrariness and excess that it had allowed for.

In voting as they did, Malaysians were not only expressing their frustration at the glaring absence of a plan of action that would allow for sustainable development, they had begun to tentatively reach out for a viable alternative, one that would simply promise, not even guarantee, the possibility of hope for all. A denial of a two-thirds majority came to be seen as a good step in the right direction while accommodating the fear - of the unknown, of stepping out of comfort zones, of the possibilities – that many felt at the prospect of a change of government. It may have been that some hoped that through this the Barisan Nasional would once again remember that it existed to serve the people and not for the people to serve it.

For a while, it did seem as if there was a possibility that things might change for the better. A fledgling two-party system seemed to have taken root, a state of affairs that led to an acknowledgment by the Barisan leadership, no matter how tentative or begrudging, of the people having expressed their disappointment with things as they were and their desire for change. In a blur of post-election frenzy, we heard much of what was going to be done and the reforms that were going to be introduced, all aimed at making Malaysia the better place it ought to have been for all.

It seems however that there was insufficient political will to follow through. Instead of seeing concrete measures being taken to transform rhetoric into reality, we were soon hearing familiar political counter-spin against the now significantly more entrenched and influential opposition. As exemplified by the Shabery Chik-Anwar Ibrahim debate, the Barisan took to making personal attacks against the Pakatan Rakyat rather than constructively engaging on a policy level. This, and jaded tactical plays on race, religion and sodomy, have not done much to assist the Barisan in shoring up seriously faltering levels of confidence.

It would seem that the Barisan had learnt nothing. In avoiding constructive engagement on policy issues, it failed to seize the opportunity to show that it had a better grasp of what this country needed, and the way forward, than the Pakatan. This was a fatal error fueling further speculation that the Barisan had very little left to offer. In the time since March 8th, many a Malaysian has been struck by how they had made themselves captives to their electoral choices - it will be some four to five years before the next election, a significant period in which the state of the nation may worsen inexorably – and have come to the conclusion that radical change is the only option left.

That Anwar Ibrahim has become the face of that change is not surprising. In the pluralism he espouses, many see a shift from a divisive race-relations policy that has gravely weakened the nation as well as the supposed target community of affirmative action. A shift to the meritocracy inherent in pluralism would allow for a restoring to power of the primary organs of state and the resurrection of a true democracy, the only surefire way of healing the country. This is a transition that his supporters see as being made possible by the team of Pakatan leaders who in standing by him also block the path to absolute power.

For all of this, Anwar Ibrahim is the man of the hour to many, not just for having aided in forging the Pakatan but for having the moral courage to say what it is this nation needs for it to survive. To them, a vote for him tomorrow is a vote for a better tomorrow. But, what if Anwar Ibrahim loses? As unlikely an event that may be, we must be prepared for all eventualities, whatever their cause. Does the transformation process stop?

I would like to think that it would not.

For if Anwar Ibrahim is the face of change, then we are the force underlying that change. Our families, our children, all those who want a better and more just nation; all of us.

We started reaching out for democracy long before March 8th. We took it from the British by diplomacy. Had we needed to, we would have taken it by force for freedom has always been our birthright and democracy its guardian. By coincidence of otherwise, Anwar Ibrahim has come to serve the will of Malaysians in their quest for truer and more just governance; they do not serve him.

So, what if he fails, today or at some more distant point in time? Then another, and another, and another after that, will take his place to become the face of that change that Malaysians want. The genie is out of the bottle, Malaysians want their democracy back. They recognize in a way they never have before that compromising on ideals is not an option if this nation is to be all that it can be.

A shot at a united and strong Malaysia lies within grasp and the journey to it begins today. On March 8th, we voted in admonishment. Today our brothers and sisters in Permatang Pauh vote for the future.


Tuesday, August 19, 2008

Re-establishing Malaysia

Re-establishing Malaysia

I think back with amusement to how much I disliked constitutional law as a subject when I was studying law. No matter what, I just could not sink my teeth into it. The doctrine of separation of powers, matters of governance, the multi-faceted role of legislature and so on were not exactly riveting material. And as tempting as it is to blame this seeming aberration on the way I was taught, this would not be the entire truth; there were simply more exciting things in life.

Little did I know that not only would constitutional law feature tremendously in my legal practice as an advocate and a human rights activist, it would also infuse my life in so many other ways as I attempted to understand and give words to my feelings about all that was happening around me. In an increasingly ambiguous environment, I found myself turning more and more to the constitution for certainty.

I did this for one reason. As a society evolves, it challenges itself. Memories being short, even fundamentals are not spared as the scrutiny of those in search of opportunities - social, political or intellectual - is brought to bear on even the most sacred of truths. And though democracy thrives on the clashing of ideas and opinion this entails, democracy also requires there to be basic, unassailable certainties for constructive debate. The ideas that form the picture that is Malaysia, in all their swirling intensity, must fit into a frame. That frame is the Federal Constitution.

As the supreme, or basic, law of the nation, it is intended to give structure to our lives by setting in place a framework for how it is we are to conduct ourselves as a society. By precluding arbitrariness in governance and protecting fundamental liberties, it is intended to provide for sanity in the mad world of politics and government, and the unavoidable excesses of the same.

In the last decade or so, the constitution has however taken a beating. Sadly, much of this has been at the hand of the Federal Court, an institution that was intended to protect it. The net effect of a string of decisions in this period has been the blurring of constitutional positions on key aspects of the system of governance to the extent that we have rapidly lost definition as a nation and the basic structure that is so vital for our continued sustainability has been put under threat.

Though the Islamic “conflicts of jurisdiction” cases have been the most public, this is not the only aspect that has been thrown into confusion by other equally controversial, ambiguous and precariously founded decisions of the court. For instance, it recently declared that the doctrine of separation of powers no longer had a place in Malaysia, an astounding conclusion that runs counter to our system of democracy and does away with the checks and balances so vital to fair and just governance. This is of grave consequence particularly when we consider how the same court not too long ago affirmed Parliament’s right to immunize Executive action from judicial scrutiny by ousting the court’s power to review. In doing so, the court allowed Parliament to place the Executive above the law.

There are other instances where the court approached its subject matter too myopically and with insufficient consideration of the policies that its decisions would invariably create or reinforce. The judicial attitude that has led to the articulation of parliamentary, and not constitutional, supremacy and all that entails has resulted in an unhealthy political environment that lends itself to oppressiveness, divisiveness and intolerance, the full effect of which we are yet to appreciate.

The Federal Court cannot wash its hands of these difficulties by saying that is bound by the law and as such merely applies it. Like apex courts of other nations, the Federal Court is the principal guardian of the constitution and has the power to strike down laws and actions that run counter to it, even those that are aimed at undermining the power of the Judiciary. The court defines our way of life through its interpretation and application of the constitution. That many of the difficulties currently being experienced in this society - from the jurisdiction of the syariah courts to the arbitrariness of governance - can be traced back to decisions of the court only goes to show the extent of the court’s immense responsibility to society.

For this reason, the Federal Court must confront the fact that its decisions do not operate in vacuum or isolation and impact on nation building. More than ever, the court holds the fate of the nation in its hands. It is not too late for the court to act decisively and with a clear vision of our long-term needs to reestablish the framework required for this nation to remain united and capable of growing sustainably for all Malaysians.

(Malay Mail; 19th August 2008)


Tuesday, August 12, 2008

A Towering Malaysian

A Towering Malaysian

Though I was initially going to write about the debacle at the Bar Council auditorium on Saturday, I decided against it. What more is there to say that we do not know already. It comes as no surprise that radical and extremist elements exist in our society or that political opportunists will seize every perceived advantage where it benefits them to do so, even when it is completely against reason.

What is crucial to understand is that all things said and done, the extremist is the exception and does not define the norm. One has just to look around to appreciate the truth that all our lives are the sum of a collective of varied experience in which no one person is more significant than the other. From the durian seller on Jalan Alor in Kuala Lumpur to the elderly Indian Muslim junk shop owner off Chulia Street in Penang, and everyone in between, we all add hue and colour to the rich tapestry that Malaysia is. That is something that can never be taken away from us.

This was however not the principal reason I chose to leave aside the events of Saturday. Early this morning, fellow Penangite and friend, Azmi Sharom, informed me that a former teacher of ours, Mr Tan Har Yong, had passed away at the age of fifty-four.

I wish I could present a glowing eulogy of the man, his life and triumphs. The sad truth is that I cannot. I cannot recollect the last time I saw him. I cannot tell you about the paths his life took him on nor the journeys he made. Periodically, friends had relayed our greetings to each other. Through this, I came to know only of his having become a pastor and that he was apparently, and somewhat mysteriously, satisfied with what he had managed to achieve with those of us he had tutored. I cannot tell you whether he was happy or fulfilled, though blogs I checked this morning suggested that he was for the fact of his having given himself over to the bigger cause of shepherding those who were guided to him.

And that he did.

Like many others, I first met Mr Tan when I was twelve. I was in Form 1 and his was the comforting presence that allayed my concerns and anxieties about being in a new school, with new people. It was his smile - ready and quick, mildly bemused – and the deadpan expression, that said it all: we were not to take ourselves too seriously but it was perfectly acceptable, natural even, to feel nervous and uncertain as everything would sort itself out.

I remember that smile principally because there was a photograph, a close up, of it. Some of us in the first and second forms had decided to present a photo-feature spoofing the school at a dinner. Apart from a slide of Azmi Sharom stripped to the waist looking like he had just been severely caned, tomato ketchup smeared across his back to emulate blood, there was this slide of Mr Tan. Under it there was a caption that read: “Why is this man smiling?” The next slide offered a wider angle, revealing three students pushing his car, faces contorted by the strain. The caption on this one read: “He saves petrol.”

Over time, we learnt of his uncompromising adherence to fairness and right over wrong. He was rigid at times but for all the correct reasons. His even temperament, compassionate nature and sometimes strange sense of humour ameliorated what few effects there were of this characteristic. He reinforced what many of us were being taught at home. To him, it did not matter that we were Chinese, Indian, Malay or of any other ethnicity. He made us see that though each of us was unique and different, we were all the same for each of us being deserving of the respect of the others.

And so, when we laughed, we laughed together. And when one of us felt pain, all of us felt it too. He made us see that we were family to each other and that even though some of us did not really get along with some of the others sometimes, there were times that we did, all of us.

I would like to think that this had a profound impact on those of us who came to consider him a friend and mentor. He touched our lives and showed us in his own inimitable way that we could achieve anything that we set our minds and hearts on. It is no coincidence that there are a string of lawyers, activists and professionals, all contributing to the shaping a better Malaysia in which race, religion or creed do not matter, whom Mr Tan nurtured as a teacher.

And as I write this, I find myself wondering whether those who decided to disrupt the proceedings on Saturday would have done things differently if they had had a Tan Har Yong in their lives. Perhaps so.

God speed, Mr Tan. You were a towering Malaysian.

(Malay Mail; 12 August 2008)


Tuesday, August 5, 2008

Is There A Statesman In The House?

Is There A Statesman In The House?

Last Friday former British Prime Minister Tony Blair delivered the 22nd Sultan Azlan Shah Law Lecture. He spoke, to the chagrin of some, on the Rule of Law and its continuing relevance in an increasingly challenging world. The gist of his lecture was credibly reported in the media and no useful purpose would be served by my summarizing it here. Suffice it to say that Mr Blair presented the key aspects of the subject winningly and, at times, poignantly, lending important validation to what it is civil society has been saying for more than two decades now: an independent and competent justice system is crucial to democracy and the sustainable growth of a nation.

But as I listened to the lecture, it was not so much what he was saying that struck me but rather how he was saying it. His delivery was crisp, articulate and erudite, the intelligence and maturity underlying it evident. I do not intend to put Mr Blair on a pedestal but leaving aside his more questionable decisions including those on Iraq - I know of no leader whose every decision has been universally acceptable and if we are going to accuse Mr Blair of war crimes then we should be accusing those who wield the ISA for political purpose of crimes against humanity – here was, simply put, a world class leader.

After the lecture, I overheard some members of the audience ask whether they could imagine the Prime Minister or any other member of the cabinet delivering a lecture of that caliber. Sadly, the laughter the question generated was answer enough.

I walked away depressed. As unpleasant as it was to admit, they were almost entirely correct. Looking at those who claim the right to lead us, I have difficulties seeing whom it is that I can have faith in to get the job of running this country done the way it needs to let alone make a high performance presentation.

Many say Dr Mahathir was a great leader. I cannot accept this. It was his administration that left us in the difficulties we are in now. From reckless deficit spending on vanity mega-projects to a seeming incapability, or was it unwillingness, to deal with destructive corruption to the dismantling of the Rule of Law to the encouraging, nurturing even, of sectarian interests, his was an administration that left Malaysia deeply divided, distrustful and greatly crippled.

It is a testament to the resilience of Malaysians that we have been able to limp forward in spite of everything. That is our achievement, the rakyat, and not that of our current leaders as they are so wont to claim. To the contrary, it would seem that they have done almost everything to keep us hamstrung in order to secure political interests, no cost being too great for this purpose. Inconvenient realities have been almost carelessly hidden behind a flimsy construct of delusion, self-denial and studied indifference, effective only for it having been propped up by draconian laws aimed at procuring compliance.

The fact is this country is in a mess.

In all of this and more, the only individuals who have ascended to leadership have been those with the cast iron stomachs and the wily cunning that politics in this country requires. Objectivity, maturity, competence, and the other key characteristics of statesmanship appear not only to have been low on the list of prerequisites, they have at times appeared to impede the pursuit of greater political power.

Were things otherwise, we would not be the weak, divided, paranoid, and underachieving society that we are. Malaysia would instead be a strong, united and prosperous nation whose people, irrespective of race or religion, were global competitors capable of achieving greatness. We would have our share of world leaders.

There is no conceivable reason for our not being as successful, if not more so, than Singapore or a number of other nations. We had the talent, ability, intelligence, and resolve to have gotten us there a long time ago. Politics and the vanity of an elite were however permitted to keep or drive them away from where they were most necessary for the nation: the civil service, the nation building institutions, the governments of the States and the Federation, to name a few. Though not necessarily definitive in itself, comparing and contrasting the qualifications of those who sit on cabinet or in institutions such as the Judiciary in this country with those of similar positions in nations such as the United States, the United Kingdom and, closer to home, Singapore allows us to see the contours more clearly.

Politics continues to reign supreme, and those who lead us continue to deny the need for urgent systemic reform across the board and the need for reappraisal of race-relations policies in this country. That the status quo will eventually strangle us to death unless radical change is effected and effected quickly does not seem to figure on their political horizons.

We need a real leader; someone whose commitment to truth, social justice and nation building is as uncompromising as is his or her rejection of politics, greed and vanity. Though we do not need a saint, we need someone who understands that Malaysia belongs to all of us and that its future is our collective future; someone who appreciates the immense power that lies beneath its surface and is capable of harnessing and unleashing that power to capture the world.

Though, someone who could call a spade a spade and get on with dealing with things practically and fairly would be a good start.

Now, is that too much to ask?

(Malay Mail; 5th August 2008)