Disquiet

Nothing to hide

2012-01-26T21:58:00.000+08:00

Likemany others, I believe that the move by the Chief Justice to have judgesdeclare their assets should be lauded. As was emphasised in the speech hedelivered recently at the opening of the legal year, the integrity of thejudicial process is of paramount importance to the administration of justice.Having judges declare their assets is a key step in achieving that goal. Notonly will it allow for some measure of scrutiny, the willingness of judges todisclose their net worth will signal to all Malaysians that they have nothingto hide.

TheChief Justice must be credited for having had the moral courage to acknowledgea need on the part of the Judiciary to directly address concerns that corruptpractices may possibly have infiltrated into the institution. It would havebeen much easier for the Chief Justice to simply ignore the issue, or deal withit behind closed doors. Many a judge may have said it would be better to handlesuch matters out of sight for the fact that it would not lead to any untowardimpression of the institution.

Aseffective as this latter approach may have been, it would not have gone veryfar in addressing public concerns. Though it pains me to say this, I do notthink there are many lawyers and litigants who believe that the system ofjustice is free from corruption. Whilethis may be nothing more than a perception it is no less damaging; a system inwhich the public has no confidence is a system that does not work.

I amheartened that the Chief Justice recognises that he must deal with the matterand, to that end, embrace the more challenging route of promoting transparencyand accountability amongst his judges. Implicit in his approach is anunderstanding that the well being of the institution, and the nation, cannot besacrificed for the sake of the few rotten apples that may be in the barrel.

TheChief Justice says that the Judiciary will work with the Malaysian Anti-CorruptionCommission on developing the framework of disclosure. This makes senseconsidering the function of the MACC and the value of the collaboration must beacknowledged. It may however be prudentto note that public perceptions of the MACC, in particular its seemingpolitical bias, may undermine the value of the initiative if not handled. It istherefore essential for the Chief Justice to make clear that while the MACC mayoffer advice on how best to articulate the aims of the Chief Justice in thisregard, it will not have the final say.

Itwould also be useful for the Chief Justice to engage with the Malaysian Bar andTransparency International on the matter. A consultative approach will go along way in convincing Malaysians that he means business. Malaysians are after all the beneficiaries ofthe system of justice and they ought, through interaction with the relevantcivil society bodies, be treated as stakeholders. The Bar is well placed tohighlight aspects of the process that may shed light on corrupt practices andhow best to deal with them. Similarly, the resources and experience that TI canbring to bear will be invaluable in defining the disclosure framework.

TheChief Justice has yet to make clear his vision of the disclosure framework. Atthe risk of stating the obvious, it is crucial that consideration be given tothe degrees of disclosure required as well as the period of disclosure. Wherethe former is concerned, Judges ought be made to disclose assets in their ownnames as well as in the names of their spouses and children. They should alsobe made to declare their interest in companies, not only for their shareholdingamounting to assets but for the fact that assets may be parked under assetholding companies, within jurisdiction or elsewhere. They should be made to disclose their assetsin the most comprehensive manner possible. In this regard, the disclosureobligations imposed on members of the Competition Commission under theCompetitions Commission Act 2010 is a useful reference point.

Considerationmust also be given to the question of whether the declaration of assets oughtbe made public. I believe it should if the aim is to foster publicconfidence. Such a stand is notunprecedented, declarations of assets of the judges of the Indian superiorcourts are carried on the website of the Supreme Court.

Asfor the period of disclosure, it would be prudent to require disclosure ofassets by Judges as at the time when they were elevated to the bench, orappointed as Judicial Commissioners. They ought be made to then declare their assets for each year they haveserved as a Judge and continue to do so until their retirement. It would becounterproductive to only require disclosure of assets prospectively if the aimis to weed out errant judges.

It willalso be necessary to consider how the vetting process is to work. I presumethat the MACC will be vetting declarations. The question is whether the MACC isto vet disclosures only if allegations are made against a judge, or whether thevetting is done as a matter of course each and every year. I believe that thelatter approach is the better one for it promoting the objective of theexercise. This approach will also serve to deter errant conduct.

Onceagain I congratulate the Chief Justice on the initiative. My best wishes to allfor the lunar New Year.

MIS

(First published in The Edge, 22nd January 2012)

Statement: MCLM

2012-01-03T14:23:00.002+08:00

It is with regret that I announce my disassociation from the Malaysian Civil Liberties Movement, otherwise known as MCLM.

Though I have at no point in time been a member of MCLM, I had committed to working with the movement to further the reform agenda.

For the sake of clarity, I note here that at all times my agreement to stand as an independent candidate hinged on my being satisfied that there was cause for it. In this I firmly believed, and still do, that the Pakatan Rakyat was pivotal in any campaign for reform, though it was not necessarily the only actor of relevance. In that light, I had resolved to stand only where my doing so would not result in a three-corner fight or where it was strictly necessary to do so.

Much has occurred since the announcement of the initiative. For one, the Pakatan Rakyat appeared to commit to a sustained effort to identify and field quality candidates. For another, Raja Petra Kamaruddin felt it necessary to state his personal views as he did, in an interview with TV3 last year and recently in interviews published in the New Straits Times and the Utusan Malaysia.

I will not delve into the matters spoken of save to say that they cast a less than positive light on the MCLM in so far as its commitment to principle is concerned. Furthermore, I do not share his views.

As I understand things those views were entirely personal to him and are not the views of the MCLM. Raja Petra had however allowed the impression that he spoke on behalf of MCLM and in his capacity as the chairman of the movement. That is regrettable as it is an impression that has undermined the credibility of the MCLM and its efforts. It has also undermined the tremendous efforts of a number of highly committed and selfless individuals in their untiring efforts to develop various civil society initiatives under the banner of MCLM.

In having done what he did, as well intentioned as he may have been, Raja Petra has seriously undermined the cause. It is my belief that no one person is larger than the cause.

It is for this reason that I must disassociate from the movement and withdraw from the independent candidate initiative. I have discussed the matter with Mr Sreekant Pillai who has asked me to state that he shares my views and is similarly dissociating.

I wish to state that my decisions to remain independent of any political parties and to stand as a candidate were mine and mine alone. It has been some years since Raja Petra and I have spoken and he has not in any way influenced any of my decisions.

Malik Imtiaz Sarwar

Preemptive intimidation

2011-06-26T10:19:00.002+08:00

So, the police have started their campaign of 'preemptive arrests'. There were activists arrested in various towns/cities yesterday, ostensibly for distributing 'inflammatory material'. As many have already commented, the suggestion that material recommending electoral reform is inflammatory is ludicrous. This is more so in light of YB Nazri's recent observations about our sedition laws being outdated.

And if it is incitement that the police are worried about, then there are more stark instances that are deserving of attention.

The police campaign appears to be aimed more at intimidation, apparently on the misconceived basis that this is a legitimate means to preserving public order. It is not, simply because every one has the right to dissent and express such dissent. This is something that the police appear to recognise; demonstrations and marches have been permitted in recent history, more notably when they involve causes that run consistent with the politics of the Government.

When the police want to, they are fully capable of allowing mass gatherings and controlling public order. Just google "Kuala Lumpur road closures". Even as I write this there are hordes of people running past my office. They're not running from anyone or anything, they're involved in a marathon of sorts. Roads have been closed for this event, as HAKAM members trying to get to my office for our AGM have found out to their consternation.

The preemptive police campaign is inflaming a situation that politics has made tense. What started out as a peaceful expression of unhappiness over the electoral process has now become, to paraphrase the Deputy Prime Minister, a threat to national security. He is concerned that the BERSIH Rally will send the wrong signals to the international community, in particular investors. Well, we might ask the Deputy Prime Minister, what sort of signal does mass arrests send?

MIS

Datuk T and the Administration of Justice

2011-06-25T14:50:00.005+08:00

The charge was for screening a pornographic video in public. The three 'Datuk T' pleaded guilty. And yet, one of the three declares that his mission had been accomplished. What mission was that? The screening of pornographic videos? Apparently not, it was to have it made public that:

the video had been examined by an expert;

the expert was 99.99% certain that the man in the video was Anwar Ibrahim; and

Anwar Ibrahim is as such not the man he claims to be.

The question is if that was the mission, why not declare it publicly, even prior to their being charged in court? After all, from media reports Defence counsel appears to have been as much in the know as the prosecution. It also appears that prior to being charged, the three knew they were merely going to be fined and were prepared for that eventuality.

This has grave implications, especially when one considers the events that took place in court. In my view, the more important events were:

the DPP read out a Statement of Case which delved into matters that were not relevant to the charge. The charge was the screening of a pornographic video. Was it necessary for the prosecution to establish that the man in the video was Anwar Ibrahim, or any other person for that matter? It clearly was not. And yet the DPP thought it appropriate to make assertions pertaining to matters that were not only extrinsic to the charge, they were based on purported evidence that had yet to be tested or determined to be sound. It is not clear whether the alleged expert report was produced to the magistrate. It appears not;

the Magistrate permitted the DPP to do what he did without appearing to have thought it appropriate to direct the DPP to limit himself to the case. In doing so, the Magistrate had, albeit perhaps unwittingly, permitted a judicial process to be employed in a means it was not meant to. If there were reasons behind the extraordinary measures taken in court, then the magistrate may have, albeit perhaps unwittingly, permitted the administration of justice to be exploited to that end.

Much disappointment has been expressed at the way in which matters unfolded in court. This has been misconstrued by some as unhappiness at the fact of Anwar Ibrahim's alleged foibles having been exposed. Criticism of the events have been represented by these quarters as attempts to subvert the truth about Anwar Ibrahim.

But that is the point. The proceedings in court were not about Anwar Ibrahim. They were about Datuk T having committed criminal offences. The events of yesterday must be looked into by the Judiciary and the Attorney General's Chambers.

MIS

A matter of dignity

2011-06-20T05:49:00.002+08:00

A matter of dignity

Everyone has his or her idea of what a perfect world is. Some might say that society should be less regulated and more space given for personal freedoms. Others might argue in favour of more regulation and control. Some might expound a more racialist perspective while others may be happy with just a modicum of fairness.

Whatever the case, the realities of a societal existence compel us to find middle ground, a state of being where one has as much freedom to be human and to do all things vital to dignified existence as such while respecting the next person’s right to do the same. This calls for compromise on the part of everyone who chooses to co-exist in a given society. This compromise necessitates relinquishing the right to ‘self-help’ to those tasked with administering that society.

In Malaysia, that compact is entrenched as an essential feature of Malaysian existence by Constitutional guarantees of fundamental liberties.

Though the administering of a society would necessarily involve some measure of regulation, the power of the state to regulate is not an absolute one. Its responsibility to do so is to be balanced against its responsibility to protect those freedoms that define that society. Any intervention by the state, and the character of such intervention, is to be determined by reference to both these considerations.

There is however an unfortunate tendency on the part of our government to focus only on the need to protect public order. This often obscures the equally important responsibility of the government to protect the dignity of its citizens. The question that is more often than not overlooked is what is it that gives us dignity.

The right to express, either as individuals or as a collective, is a crucial element in what it is that defines us as who we are. In most cases, the power to express ourselves is really all that those of us without access to the corridors of power have. Individuals may be stripped of their belongings and status, they may be constrained in a number of ways, but they do not stop being human as long as they have the ability to express who it is that they are to the world around them. The HINDRAF rally of 2007 illustrates that point clearly.

For some, the need to express may be satisfied by their choice of the colour or design of their car, or outfit. For others, the need may be greater. They may wish to say that they are not happy with the state of government or that they are frustrated at the lack of response from agencies charged with administering elections. As much as some may disagree with their view, it is not for anyone to say that they have no right to think or feel what it is they are feeling.

In the case of those seeking reform, their right to speak up is reinforced by the fact that Malaysia is a democracy. We elect our governments. For them to have the continued confidence of the rakyat, the integrity of the process by which they have been elected must be seen as being unimpeachable.

That does not appear to be case though. Going by what BERSIH 2.0 is saying, a significant number of Malaysians believe that the process cannot be seen as being unimpeachable. This is not just about whether there is electoral corruption or whether there has been ballot stuffing, it goes deeper into the question of whether the system of elections as it is allows us to achieve the aim underlying general elections. Issues have been raised about re-delineation exercises, campaign periods, equal access to mainstream media by all political parties, amongst others. These are undoubtedly significant features of the process that all Malaysians ought be concerned with.

BERSIH says that it has attempted to raise these matters with the relevant agencies but thus far its efforts have not got it anywhere and no resolution has been achieved. For this reason, BERSIH says it needs to express itself as a last resort through a rally. Judging by the studied silence or avoidance of those charged with responsibility over elections, it appears to be all that BERSIH, and Malaysians who support its cause, can do.

In any modern nation state describing itself as one established on the Rule of Law, there would be no difficulty. BERSIH organizers would be told that they would have to march along a particular route, with a sufficient number of wardens at a particular time. The police would go to great lengths to ensure that those marching in the rally would be safe and would be able to go about their business uninterrupted.

And if there were a group of individuals opposed to the BERSIH rally, and wished to march in protest, then the police would direct them to march along a different route.

Our government however opposes it and says that the need to preserve public order is more a priority than allowing Malaysians to express themselves on the subject. With impunity PERKASA puts a spin on the matter and asserts that its supporters are happy with the way things are and will endeavour to thwart the BERSIH rally with a counter-rally.

The police are weighing in as well, giving notice of preemptive arrests in the face of no permit having been issued for the proposed rally. The posturing makes it clear that no permit would be issued in any event.

In conducting themselves as they do, the government and the police have sent a strong signal to Malaysians that they do not consider the right to express themselves on the subject as being of any importance. In doing so, they have effectively told Malaysians who support the cause that their dignity is of no relevance. That they should just stomach the system as it is.

Is there really any cause for wonder at the fact that Malaysians increasingly seem more inclined to take to the streets?

(An edited version of this article appears in my 'Rule of Law' column in The Edge this week)

MIS

Spoils Of War

2010-09-29T10:24:00.006+08:00

(This article first appeared in The Edge in the week of 28th August this year It was my first piece for a column called 'Rule of Law')

Spoils Of War

It feels sometimes that the way things are going political forces are going to rip this country apart. Intent on their respective agendas, for better of for worse, the Barisan Nasional and the Pakatan Rakyat appear to be caught up in a “no quarter” given, fight to the death that is focused more on their survival than it is on our well being. Resources, such as they are, are being deployed more to one end than they are to the more well deserving other.

Sadly, in the Malaysia of now politics is no longer the handmaiden of democracy; it defines it. The campaign being waged around us is about the continued political subjugation of this nation. It is about control. We are not witnesses to a gladiatorial contest for sport; we are the spoils of war.

Though it is a given that in even the more mature democracies the line between government and politics is not always as broad as the ideal requires, that line nonetheless exists if only for the existence of an effective system of checks and balances centered on the separation of powers between the Executive, Legislature and the Judiciary.

The line between government and politics in Malaysia is so blurred that some might describe it as no longer being visible to the naked eye. If there were any doubts about that, it would have been put to rest by any of a number of recent events. The campaign speeches made by the Honourable Prime Minister for the recent parliamentary by-elections in Hulu Selangor and Sibu, the intensified and highly selective policing of free speech, and the resurgence of intolerance against legitimate dissent are instances of what it is that fuels the belief that the Barisan Nasional views itself as the government and vice versa. To criticise one is to condemn the other.

It is crucial for all stakeholders to recognize this as much as it is not in the interests of this nation for this state of affairs to continue. It is equally imperative that we appreciate the reasons for it and commit to addressing matters as they need to be.

We suffer the consequence of several inter-locking processes that were given life during the administration of a Prime Minister who tended to view the ends as justifying the means. I would like focus on one.

Frustrated that an interfering judiciary was impeding his vision, the Mahathir administration moved a constitutional amendment that subjugated the Judiciary to Parliament and showed the Justices that he could remove them if he saw fit. His perception of the role of the Judiciary called more for compliance rather than effectiveness. This was essential to his need for Executive control over the nation.

Perhaps recognizing that it would be impolitic to suspend the Constitution, the Mahathir administration moved amendments to key legislation that would allow for greater central control over matters of free speech and government accountability. These vested subjective discretion over matters exclusively in the Government to the extent that even the courts were precluded from questioning decisions. This allowed for a suppression of civil society and opposition efforts, and in many ways hamstrung the democratic process. This state of affairs in turn allowed the Barisan Nasional to dominate Parliament, the other bastion of check and balance. A docile Judiciary washed its hands of the mounting dilemmas by citing their lack of power. Suggestions that the constitutional and legislative amendments that neutered the Judiciary were unconstitutional were dismissed.

This need for control and the willingness to do what it took ultimately led to the decline of governance in this country. As admitted by Abdullah Badawi during his term the Judiciary was in serious need of reform.

It still is notwithstanding the efforts by our current Chief Justice to increase efficiency within the courts. That is but one heavily nuanced dimension of the issue; the public perception that the Judiciary is not competent and lacking in integrity needs to be directly addressed. Perceptions of bias or extraneous influence cannot simply be brushed aside if the Judiciary is to function as such. Public confidence is as essential to the functioning of this institution as its infrastructure; laws would have no meaning if people reject the validity of the decisions of the courts. And the truth of the matter is that they have been for some time now.

It should not matter that this may be a situation that lends itself to the advantage of the Barisan Nasional. The fact remains that a fundamental feature of our system of governance is skewed. Questions of integrity and competence on the part of the Judiciary go far beyond matters of political significance. They pertain as much to matters of finance and commerce as they do to personal matters and for doing so touch the lives of all Malaysians. Consider the number of Malaysians who suffered by reason of the decision of the Federal Court in Adorna Properties or any number of self-evidently unjust and erroneous decisions of the courts, in some cases the apex court itself.

It is not enough to say “the courts have decided” in the face of decisions that are obviously unsustainable. For us to progress, the standard and quality of justice must be high as it is consistent. This is a feature of the Singaporean judiciary that has reaped much benefit for that nation. In as much as some might say that decisions of those courts involving the Government tend to go one way than the other, their commercial decisions speak for themselves. It is no coincidence that the Privy Council not too long ago adopted the reasoning of a Singapore High Court judge in rejecting a precedent that had held sway for more than a century; it was a matter of planning. From the outset Lee Kuan Yew recognized the importance of a strong legal tradition.

The question therefore is where does that leave us in Malaysia.

MIS

WARNING

2009-12-04T12:26:00.003+08:00

It has come to my attention that someone has been misrepresenting himself to be me in connection with the solicitation of funds. He e-mails in my name and purports to be writing as a lawyer with my name and practicing at a firm with the name “Malik Imtiaz Sarwar”. The address specified is not the address of my law firm.

I have taken steps to address this and police reports will be lodged shortly.

Should anyone receive any e-mails or telephone calls soliciting funds in the name of my firm or in my name, do not entertain any such requests. I would be grateful for any information pertaining to the same. Information concerning this can be directed to helenyong@malikimtiaz.com.my.

My thanks to those of you who took the trouble to alert me to the matter.

Malik Imtiaz Sarwar

Teoh Beng Hock: Perspectives On Inquests

2009-08-29T10:35:00.003+08:00

I apologise for the protracted silence. Commitments these past few months have left me no time to write meaningfully. For those who had written messages of concern and encouragement, thank you for having taken the time to do so.

As has been made obvious by the tremendous publicity the inquest into the death of Teoh Beng has received, I represent the Selangor State Government in the proceedings. Gobind Singh represents Teoh’s family.

There are a few aspects that I think need to be put into perspective. I will not delve into the merits of the inquest as the matter is still under consideration. There are however certain objective areas that need some clarification.

First and foremost, it must be understood that the inquest is directed towards establishing a cause of death. The cause of death is more broadly categorized into suicide, accident (misadventure) or homicide (murder or culpable homicide). There are of course other verdicts that could be reached. These include a conclusion that further investigation is required or an open verdict. An open verdict is a finding that although there are suspicious circumstances surrounding the death in question, there is insufficient evidence to determine much more than that. Coroners lean to an open verdict where there is no proof of intent to commit suicide (suicide cannot be presumed).

The aim of the inquest is to determine the truth. In inquests, this is more usually a process of deductive reasoning and elimination of possibilities. As such, the evidence must be considered from that perspective. For example, if accidental death could be eliminated then suicide or homicide are the available options. If suicide could be eliminated, then homicide would be the only option (or an open verdict if the evidence did not allow for that finding).

The outcome of this inquest would obviously have political repercussions considering the way in which politics overlaps governance and the perception that the MACC is responsive to the government. Considering the possible outcomes of the inquest, it stands to reason that looking at the inquest as a political matter, death by suicide or accident or an open verdict (in that order of priority) would suit the MACC and, indirectly, the Government, the best. This is however not intended to suggest that neither institution is concerned with the truth; perceptions and perception management are crucial to building and maintaining public confidence.

The second area that needs clarification is the role that the forensic pathologist will play in the event someone is charged with homicide. The two pathologists that gave evidence in the inquest jointly signed the post-mortem report. In the event criminal proceedings are instituted, the post-mortem report becomes a crucial part of the prosecution case. The credibility of the pathologists, or at least one of them, is therefore equally crucial. A good defence counsel would be able to exploit the evidence of the pathologists at the inquest, as prior statements on oath, to his client’s advantage. As such, care has to be taken in the way findings are questioned.

MIS

The Texture Of Justice

2009-05-12T12:39:00.002+08:00

It was to be expected. As news of the decision of the High Court in the matter of Nizar v Zambry filtered out, many were quick to give thanks and express encouragement for what they perceived as a courageous judgment. Some even expressed the hope that the judiciary was recovering its independence. The judgment did, after all, run counter to the entrenched positions of the Prime Minister, who was the Perak UMNO liaison chief at the time power was seized in the state, the Barisan Nasional leadership and the Federal Government they have constituted, and His Royal Highness the Sultan of Perak.

As has been the case when other seemingly “courageous” or “independent” judgments were handed down by the courts had led to such expressions of encouragement, there were those who made the point that the judiciary was praised only when it gave decisions against UMNO or the Barisan, and the governments they constitute. They ask why it is the courts are “kangaroo courts” when they decide in favour of the Barisan but not when they hand down judgments against it. In so asking, they suggest that criticism against the Judiciary and the Federal Government in this regard is unfair and self-serving as the judicial process is capable of producing judgments that run either way. To them, the good must be taken with the bad.

This line of argument deserves further consideration. In order to more fully address it, context must be appreciated and in this, there are two aspects that must be emphasized.

Firstly, our public and private lives are normalized by rules of conduct put in place by law created for that purpose. Legislature’s aim in this regard is to facilitate a harmonious society. The laws of contract, for example, codify principles that we innately understand: there must be no misrepresentation in the formation of a contract, contracts must be honoured and so on. Similarly, criminal laws entrench the principle that each of us should be allowed to live our lives ‘freely’ without interference from others. These and other laws assist in regulating that principle through, amongst other things, the protection of fundamental liberties, physical integrity, security of possessions, and ultimately the integrity of the system by which we live.

Laws have no impact unless they are enforced. It is at this juncture that the objective theory of Legislature transforms into the practical reality of action and takes the more subjective human dimension. The decision of any enforcer of the law, be it an agency or an individual, will ultimately be shaped by the reason of one or several individuals. For instance, whether the MACC chooses to take action against Khir Toyo is a matter that is determined by the top man at the MACC.

It is a given that human error will occur. It is for this reason that the courts are vested with the power to scrutinize Executive action. They stand between the citizen and arbitrary or capricious Executive action. In matters of private law, such as in the area of contract law or commercial law, judges takes on the role of ensuring normative standards are applied equally across the board in the absence of regulators.

Seen in this way, the courts, and the judges who run them, represent the ideal. Their conduct must be beyond reproach. This leads me into my second point.

It is indisputable that the Judiciary was attacked in 1988 and its independence severely undermined through a constitutional amendment that yoked it to Parliament. A questionable system of appointments and promotions that was made the subject of a damning Royal Commission of Enquiry report has further damaged the institution, as have numerous controversies and scandals, some of which have involved highly questionable decisions that have favoured the interests of the Barisan directly or indirectly.

The public viewpoint as to the state of the Judiciary cannot be dismissed for being uninformed or lacking in sophistication. In cases involving more current dimensions of our lives, a skewed decision of the courts often proclaims itself as such; it offends our moral sense. A person gets cheated and goes to court but the court decides in favour of the cheater, twisting the law to arrive at that outcome. A mother gets unjustly deprived of the custody of her children. The starkness of the wrongdoing on the part of the court is basis enough for serious concern about whether the courts are going to do the right thing or not, or whether it is even capable of doing so.

These concerns are fuelled by a failure on the part of the Federal Government to implement recommended reform measures. It appears that a lack of political will and a desire for continued Executive control over the Judiciary stands in the way. The much trumpeted Judicial Appointments Commission has not diluted in any meaningful manner the control of the Prime Minister over appointments.

The state of play is such that the average Malaysian has come to expect that cases of public interest involving the Barisan or the governments that it forms will be decided in its favour. This is the default position, a perception that the Barisan has fostered by its inaction or seeming unwillingness to act meaningfully in the face of consistent complaints about the state of the judiciary over the last two decades or so. This impression has also been nurtured by the way in which the Barisan has allowed constitutional bodies and federal agencies to conduct themselves in an apparently partisan manner, a point brought home in the course of the Perak affair.

For all of this can Malaysians be blamed when they still take cases to court despite their criticism? No, for they have no choice and they have to hope beyond hope. There have been judges, though far and few between, who have displayed the moral courage so crucial to a just decision in hard cases. They however are the exception to the rule and their principled stand cannot be translated into the standard of the entire judiciary. I appreciate that this may seem harsh for there may be other judges who do not lend themselves to any perversion of the law. Their silence or inaction will however be regrettably construed against them by Malaysians who have grown weary and are no longer tolerant of morally ambiguous positioning on the part of our institutions. For them, justice is neither a game nor a gamble.

Can Malaysians be faulted for celebrating a decision that they never thought possible in their wildest dreams, or for associating such decisions with an independent judge? I think not. It is an indisputable truth that decisions in politically sensitive cases, erroneous or otherwise, rarely favour the other side where the Barisan is involved. Their rejoicing does not make the reality any different, a point sadly underscored by quiet speculation on the part of some that the decision of the High Court yesterday may have been orchestrated as part of a political strategy.

I will concede that certain quarters have tended to ridicule judgments of the courts solely for these judgments having ruled one way rather than the other. For them, the expected outcome defines everything. If it is not disappointing then it is presumed that the process of the law was not compromised. However, if the outcome is disappointing then it is a given that the process was subverted. This cannot be the right way to look at things as, whatever the case, the process of the law is crucial.

As for the decision itself, I will refrain from too much analysis as the Barisan has appealed the matter. I will however say that given the choices the judge had, that is to decide whether a vote of confidence was essential or whether extraneous circumstances pointing to a lack of confidence were sufficient for His Highness to appoint a new Prime Minister, the judge made the more prudent and practical decision all things considered.

The state constitution does not vest His Highness the Sultan with the power to dismiss a Menteri Besar and His Highness was only required to form a view as to whether the incumbent Menteri Besar had lost the confidence of the majority. The conclusion of the judge that a vote of confidence is required is one that allows for the kind of certainty that Tun Mahathir advocates and which, given the lessons learnt over the last three months, reduces the risk of destabilizing the state. It also guards against the institution of the Sultanate being dragged into a political fracas, a situation exemplified by the appalling events in the State Assembly last Thursday.

(Malaysian Insider, 12th May 2009)

MIS

Malay Mail

2009-05-08T00:20:00.002+08:00

I ended my association with the Malay Mail yesterday. Disquiet will no longer feature as a column.

MIS

Ipoh, 7th May 2009

2009-05-07T23:35:00.004+08:00

"...No, no, we are not satisfied, and we will not be satisfied until justice rolls down like waters and righteousness like a mighty stream.

I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow cells. Some of you have come from areas where your quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive.

Go back to Mississippi, go back to Alabama, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed. Let us not wallow in the valley of despair.

I say to you today, my friends, that in spite of the difficulties and frustrations of the moment, I still have a dream..."

Martin Luther King

The image of the Speaker, Y B Sivakumar, being forcibly removed from the chamber of the Assembly has seared itself into the Malaysian consciousness. That force had to be resorted to it is indication enough that the Barisan Nasional did not have a political or legal solution to the difficulty it found itself in.

I wonder whether anyone is actually celebrating.

MIS

(My column for the Malaysian Insider runs on Monday. It will deal with Perak)

The Index On Censorship Award

2009-04-24T17:37:00.005+08:00

A big thank you for the very kind and generous congratulatory messages over the past few days.

The Index on Censorship started out as a magazine in 1972. Founded by a group of journalists, writers and artists, the aim of the publication was to provide a platform for views in defence of the freedom of expression. Over the years, it has featured the writings of an impressive list of distinguished writers and thinkers that include Aleksandr Solzhenitsyn, Milan Kundera, Vaclav Havel, Nadine Gordimer, Noam Chomsky and Umberto Eco (Wikipedia)

Since then it has evolved. As Index says of itself, “Index on Censorship is Britain’s leading organisation promoting freedom of expression. Our award-winning magazine and website provide a window for original, challenging and intelligent writing on these vital issues around the world. Our international projects in media, arts and education put our philosophy into action.”

The Index on Censorship launched the Freedom of Expression Awards in 2000 to recognize free expression activity around the world and to honour those who have made outstanding contributions to the promotion of free expression. Since 2000, the awards have grown and are now awarded in five categories: New Media (supported by The Economist). Law and Campaigning (supported by Bindmans), Journalism (supported by The Guardian), the Index Film Award and the T R Fyvel Book Award.

The first Bindmans Law and Campaigning Award was initiated in 2007. The award is given to lawyers or campaigners “who have fought repression, or have struggled to change political climates and perceptions. Special attention is given to people using or establishing legal precedents to fight injustice.”

The first recipient of the award was Siphiwe Hlophe, a Swazi activist who co-founded Swazis For Positive Living (Swapol) in 2001 when she was abandoned by her husband and lost an agricultural economics scholarship when she tested positive for HIV. Swapol campaigns against gender discrimination related to HIV/Aids as well as provides assistance to persons living with HIV/Aids

In 2008 it was awarded to U Gambira (pseudonym), the leader of the All-Burma Monks Alliance, which organized and spearheaded the nationwide protests in 2007. He was detained in November 2007 and is still under detention.

I only came to know that I had been nominated and had been shortlisted when an associate alerted me. In the same way, I came to know who it was that had nominated me much later: Peter Noorlander, legal director of the Media Legal Defence Initiative, an organisation that works globally to help journalists and small media outlets defend their rights. He was formerly of Article 19, a human rights organization that works around the world to protect and promote the right to free expression. I have had the privilege of collaborating with Peter.

The shortlist for the 2009 Award had three other nominees, all very distinguished in their own right: Gamal Eid (Egypt), Harrison Nkomo (Zimbabwe) and Harry Roque (Phillipines).

The recipient of the award was to be announced at an Awards Dinner held in London on the 21st of April. I could not attend the dinner as I was scheduled for hearings in court through the week. Peter Noorlander was kind enough to represent me and to e-mail me as soon as it was announced (“You won”).

This is how Index describes my selection:

“Malik Imtiaz Sarwar is a leading human rights lawyer and activist and the current president of the National Human Rights Society (HAKAM). Imtiaz has been a central figure in fighting lawsuits brought against journalists and bloggers, and was the lead counsel for Raja Petra Kamaruddin, popular blogger and editor of Malaysia Today, whose release he secured last year. In August 2006, a poster declaring him to be a traitor to Islam and calling for his death was circulated in Malaysia. He has proposed setting up an inter-faith council, and spoken in a series of public forums on the need for religious freedom.”

As far as I know the selection was based entirely on an independent assessment of my efforts. I was not contacted by anyone from Index or associated with the awards nor was I requested to submit any materials to the selection panel. It appears however that the panel of judges was acquainted with my body of work.

In conjunction with the event, I was asked to contribute a comment for the Guardian. This was the piece entitled “The Truth About Malaysia” that has been reproduced on various Malaysian soc-pol sites.

As I said in an interview with Deborah Chong of the Malaysian Insider, I am happy to have been nominated and given the award. It presented an opportunity to bring to light the Malaysian situation, one that sadly in the view of dispassionate and objective third parties fits into the parameters of the award.

But then, that should really not come as a surprise, all things considered.

The cause is however one that is worth all the pain and suffering it might entail, a sentiment that I had the opportunity of expressing in the acceptance speech (that Peter was kind enough to read out for me) in this way:

“Being a public interest advocate is at times one of the loneliest things that one can do. Standing up against systemic repression and populist sentiment is not the most popular thing one can do. And yet, it must be done. In the short period that Malaysians stopped doing so, we lost the Rule of Law. The consequences of this failure is the legacy that younger Malaysians have inherited.

The award tonight is a reminder that no matter the specific nature of our respective struggles, the underlying causes are universal. The truths that define us in Malaysia are the same as those that define our friends in Egypt, Zimbabwe, the Phillipines or any other place. We each want to believe that each of our futures is limited only by our ability to dream.”

We must all keep on reaching for the stars. Our futures are written in them.

MIS

Translating Policy Into Practice

2009-04-24T15:37:00.003+08:00

Translating Policy Into Practice

The media reports that the cabinet has decided that children of marriages where one spouse subsequently embraces Islam would remain in the faith that the parents had agreed on at the time of marriage. The cabinet has also appeared to decide that the civil courts are to dissolve such marriages.

These decisions are welcome ones. They indicate willingness on the part of the administration to deal with issues that have for some time now been studiously avoided, a state of affairs that had prompted the establishment of the coalition of NGOs calling itself “Article 11” and its “Equal Protection For All” campaign in 2006.

The decisions also indicate the policy position of the current administration, one that on its face appears to adhere to the constitutional guarantees of equality and the right of parents to choose the religion of their children. The Constitution guarantees the right of a parent to decide the religious instruction of a minor child. The Constitution provides that words in the singular are to be understood to include the plural, parent being “parents”. By virtue of this and the guarantee against discrimination on grounds of gender, it is clear that the intention was to vest guardianship rights in both parents. This is reinforced by federal law.

I am however uncertain as to how this policy position is to translate into practice as the cabinet has little or no direct power in this regard. Religion is a matter for the state and not the federal government; each state has exclusive authority over the administration of Islam within the boundaries of that state. This would include matters of conversion of children and the jurisdiction of the syariah courts, both of which are matters in respect of which the state legislative assembly has the competence to enact laws on.

Though the constitution itself lends support to the policy position of the cabinet, and as such could be invoked to reign in those state agencies involved in these matters, the question of whether there has been a transgressing of limits is one for the courts. The courts have however in recent years handed down decision after decision that have undermined the constitutional framework and entrenched as principle the very matters that the cabinet now wishes to address.

In 2004, the High Court in Shamala Sathiyaseelan ruled that the converting husband had a right to convert the children into Islam without the consent of the wife. The court also ruled that it had no jurisdiction to entertain the wife’s application to challenge the legitimacy of the conversion. Accepting that the wife was without recourse for not being able to move the syariah court as a non-muslim, the court counseled her to seek the assistance of the Majlis Agama. This is a scenario that the majority decision of the Federal Court in Lina Joy reinforced in 2007

In the same vein, a majority bench of the Federal Court in Subashini Rajasingam concluded in 2008 that either parent could convert a child of the marriage into Islam. It ignored the non-discrimination guarantee as well as the interpretation provision for words in the singular and focused on the word “parent”, interpreting it to mean “parent” in the singular. The majority also decided that the muslim party was free to commence proceedings in the syariah court even though the non-muslim party was entitled to seek dissolution and maintenance and custody orders in the High Court.

These decisions and others like them stand in the way of the cabinet implementing its policy position. It is ironic that the decisions noted above were largely the result of ill conceived and shortsighted positions taken by the Attorney General’s Chambers on these matters, positions that sought to denude the High Court of jurisdiction to allow for the preservation of an unjust status quo.

To move forward, the cabinet must therefore take the bull by the horns.

I assume that the cabinet made its decisions based on advice from the Attorney General. It is therefore imperative that the Attorney General articulates his revised position on these issues in the courts as soon as possible. The Shamala case comes before the Court of Appeal on Monday and he should apply to intervene to make the necessary points. Being matters of great constitutional significance that are clearly in the public interest, they warrant his involvement.

(Malay Mail; 24th April 2009)

MIS

Adapting To The Times

2009-04-17T12:31:00.003+08:00

Adapting To The Times

Proponents of the Internal Security Act justify their viewpoint by reference to the need for law to enable the authorities to deal with threats to national security. In principle, there is nothing objectionable with that position. As I explain below, the Federal Constitution allows for the enacting of laws to that end.

The shape these laws take, however, depends on the nature of the threat that is sort to be addressed and the measures needed for that purpose. These features inform any discussion concerning the relevance, if at all, of laws that allow for detention without trial under our constitutional framework.

There is no general power in Parliament to validly enact laws that contravene the fundamental liberties guaranteed under the Constitution. That is why the Criminal Procedure Code has crystallized in the form it has, obliging the police to produce an arrested person before a magistrate within twenty-four hours of arrest. If the police want to keep that person in custody without charging him or her for a further period of time to allow for further investigation, they have to convince a magistrate of the need for this extension.

Where the offence being investigated is punishable by death or with imprisonment of more than fourteen years, the magistrate can order a further detention of up to seven days with it being open to the police to seek a further seven days thereafter. Where the offence is punishable with imprisonment of less than fourteen years, the maximum period of further detention is seven days, in stages of four and three days respectively.

The rationale is that the individual being investigated should be charged as soon as possible or be let go, the thinking being that if after that many days as is permitted the police have got no basis to charge, then continued detention is not justifiable. The individual can be rearrested subsequently if more evidence surfaces and then charged, but unless and until that occurs, he is entitled to liberty. If charged, the accused then has the benefit of all the safeguards of the criminal justice system the most important of which is a trial.

That is what the guarantee against the denial of life and liberty “save in accordance with law” means.

There is however a constitutionally entrenched exception to this general rule. Parliament can enact laws that circumvent the guarantees of liberty and associated guarantees to deal with the threat of action by a substantial body of persons that aims to destabilize the nation or undermine democracy.

The ISA was enacted using this exceptional power. The “substantial body of persons” concerned was the communist insurgent army whose actions had led to concerns about the security of the nation and its way of life. That is what made its enacting valid; it was a necessary means to disenfranchising the insurgents and preventing them from regrouping. The criminal justice system might have impeded efforts to deal with the insurgents effectively.

We tend to overlook the obvious truth that solutions must be crafted to suit the problems they are intended to solve. The ISA was designed to a particular end. It was never intended to define the upper limits of executive action where national security was concerned. It was never meant to be the yardstick.

There is no difficulty with invoking the criminal justice system to deal with individuals who are not affiliated to a larger body of persons, be they terrorists or the organizers of demonstrations or socio-political bloggers, no matter how convenient preventive detention may be.

This is not a matter of preference; it is the law.

If a crime has been committed, let the accused be tried. If no crime has been committed, then there is no basis for circumventing constitutional freedoms unless the nation itself is threatened.

For those who fear the uncertain, an anti-terror legislation will allow us to deal with actual national security concerns effectively. This law could be of a hybrid nature, applying general principles of criminal law for those acts of terrorism that do not fall within the constitutional exception but at the same time allowing for exceptional steps to be taken where the terrorism concerned does. The aim of these exceptional steps should be to deal with a clear and present danger and not to substitute criminal due process with executive whimsy. Detention periods should as such be of very limited duration, if a crime has been committed there should be a trial, and be made subject to strict judicial scrutiny. This would encourage less sloppy policing and lead to greater security.

Do we really need the ISA? With the range of more effective options available to us in this day and age, I do not think so.

(Malay Mail; 17th April 2007)

MIS

Into The Depths

2009-04-14T10:13:00.005+08:00

Moments in history leave their imprints on destiny. Actions translate into consequences.

I have often wondered what it is that was running through the minds of those who triggered Operasi Lalang on that fateful 27th of October 1987. They were about to trigger a chain of events that would put this nation on a collision course with its very foundations. They were about to cast the perspectives and attitudes of a generation of Malaysians who would in turn shape those of another.

Racialism, fear and loathing, supremacist beliefs; a belief in the right of might.

On October 27th, 1987, 106 persons were detained. They were mainly politicians and political activists. Their absence left a gash in our democracy through which ideals and principles were sucked out into nothingness.

In the General Election of 1986, the Opposition held 28 seats. Of these, the DAP held twenty-four seats. PAS held one.

Five DAP Members of Parliament, amongst them the then Leader of the Opposition, Mr Lim Kit Siang, the then Deputy Chairman of the party, Mr Karpal Singh, Mr Lim Guan Eng and the indomitable V David. Four DAP assemblymen were also detained and a host of civil society activists.

The opposition was emasculated.

On 28th October 1987, Lee Lam Thye attempted to move an urgent motion to debate the detentions. The speaker rejected his request, basing his decision on the Prime Minister having given notice that he was presenting a statement on the subject. This excerpt from the Hansard report of the proceedings of that day captures the essence of the Prime Ministe’s address.

Tuan Yang di-Pertua, kita semua masih ingat peristiwa 13 Mei, 1969. Tentulah tidak ada di antara kita yang suka mencetuskan rusuhan berdarah seperti itu sekali lagi. Oleh itu, sikap tidak bertanggungjawab dan kegiatan menjolok isu-isu yang sensitif sepatutnya tidak berlaku.

Walau bagaimanapun, pihak Polis yang sepanjang masa memerhati dan meneliti perkembangan politik dan lain-lain gerak-geri rakyat, mendapati bahawa ada pihak-pihak tertentu yang tidak menghargai sikap Kerajaan. Mereka sebaliknya menggunakan peluang daripada pendirian Kerajaan ini untuk memperalatkan isu-isu sensitif untuk kepentingan mereka dan dalang-dalang mereka. Mereka tidak mempedulikan kesan buruk akibat daripada sikap tidak bertanggung- jawab ini.

Tuan Yang di-Pertua, pihak Polis mendapati bahawa beberapa tokoh pemimpin parti Pembangkang dan kumpulan-kumpulan yang sebulu dengan mereka telah dengan sengaja membesar-besarkan isu yang ada kaitan dengan kaum. Pihak DAP khususnya, terlalu memainkan isu-isu perkauman Cina dan lndia secara terbuka. Mereka memberi gambaran hahawa Kerajaan menindas kaum-kaum ini. Mereka mengadakan rapat-rapat umum, mesyuarat awam, rally, demonstrasi dan lain-lain kegiatan untuk membakar hati orang-orang Cina dan lndia terhadap Kerajaan dan terhadap orang-orang Melayu.

Tuan Yang di-Pertua. pihak Polis mendapati bahawa pemimpin-pemimpin parti DAP amat gemar menggunakan isu-isu yang berbau pcrkauman untuk mendapat sokongan bagi parti mereka. Mereka bukan sahaja herlagak sebagai juara kaum Cina dan India, tetapi juga sengaja mencabar parti-parti kaum Cina dan lndia dalam Kerajaan kerana kononnya tidak memperjuangkan kepentingan kaum-kaum mereka. Dengan ini maka parti kaum Cina dan lndia dalam Kerajaan pun melenting dan cuba pula untuk melebihi parti DAP dalam ketebalan perkauman mereka.

Usaha menjadi jaguh ini meningkat apabila DAP dapat mengalahkan beberapa calon dari parti Cina dalam Barisan Nasional dalam Pilihanraya 1986. DAP sengaja mengejek parti Cina dalam Barisan Nasional sebagai "running dogs" parti UMNO. Dengan ini maka semakin bertambahlah usaha parti Cina dan India dalam Barisan Nasional untuk membuktikan bahawa mereka juga kuat dari segi perkauman bahkan lebih kuat lagi daripada DAP dan pemimpin-pemimpinnya. Berbagai isu dijadikan asas ujian tentang siapa lebih kuat perkaumannya. Beberapa daripada isu-isu ini amat sensitif termasuk soal tarian singa, soal koperasi, soal papan tanda dan iklan, soal bahasa Cina, soal Bukit Cina, soal pakaian, soal ikrar murid di sekolah, soal matapelajaran elektif di Universiti Malaya, KBSR, soal pribumi Bumiputera dan akhir- ahkir ini soal guru sekolah Cina. Satu perbuatan yang amat bahaya ialah penggunaan kuil untuk mesyuarat perkauman.

Dalam usaha-usaha yang dibuat sewaktu membincangkan isu-isu ini, banyak kata-kata kesat yang boleh ditakrif sebagai hasutan; disuarakan dengan lantang. Reaksi daripada orang Melayu juga meningkat kerana sebab-sebab yang tersebut sehingga ke peringkat yang melampaui batas. Semua ini dilaporkan oleh akhbar- akhbar dan majalah-majalah dan media massa ini juga semakin berani…

The Prime Minister’s address received approval from all the Barisan Nasional Members of Parliament present. Not one of those MP’s expressed concern.

The stage having been set for greater executive control, and taking advantage of a weakened opposition and a media lock down, laws were enacted to stifle expression. Amongst them was the constitutional amendment to Article 121(1) of the Federal Constitution that suborned the Judiciary to Parliament, the jurisdiction of the former being a matter that from that point on became a matter of federal law. On the heels of that amendment, came the amendments to the ISA that precluded judicial review. The Printing Presses and Publications Act was amended to vest a subjective discretion in the Minister to suspend or shut down publications. The Police Act was amended to enhance the power of the police to regulate public assemblies.

The Judiciary was assaulted, a new brand of justice given life to. Democracy was taken hostage.

All of this while the leadership of the Opposition was in Kemunting for conduct that was said to be wholly destabilizing of the nation. None of those detained were ever charged for any crime. Some of them are still in Parliament or serving the nation in other capacities.

The message that the Mahathir Administration sent in 1987 has been the single biggest obstacle to developing a sustainable and inclusive foundation for this nation. We still suffer its familiar strains. We still struggle against fear.

Intimidation can never be a tool for nation building; it carries the imprimatur of autocracies. Unity can never be decreed, it is a heartfelt condition.

Malaysia can only be one when this government recognizes that the chain of consequences that emanated from that day in October, 1987 have us all in a stranglehold; its weight threatens to pull us down into the depths of oblivion.

MIS

Finishing Point

2009-04-11T09:22:00.002+08:00

Finishing Point

The Internal Security Act has no place in the modern society that Malaysia is. It was designed for a very different time and purpose. As Tun Abdul Razak emphasized in Parliament in 1960 when questioned by a very concerned Opposition as to the purpose of the then pending bill, it was intended only to address the threat to democracy that the Communist insurgency was.

As Malaysians learnt the hard way, it was used for more than that. It became the weapon of choice of politicians who were not averse to prioritizing their personal interests over those of the nation.

The populist gesture of releasing detainees by newly minted Prime Ministers underscores this point. Prime Ministers not having the prerogatives of Kings, there is no basis for benevolent munificence on their part. They are, like the rest of us, expected to act according to the law. The release of detainees is as such intended to reflect a departure from the policy positions of the previous administration and in this, the ISA invoked as a symbol of wrong to showcase a willingness to embrace what is right. The gesture as such proves the injustice that the ISA is.

In fairness, the gesture this time has come with a twist, the promise of a review. Though it is not clear what this means or even that it will occur, the Prime Minister must be given the benefit of the doubt. His concession has vindicated the movement against the continued existence and use of the statute. It also presents a useful opportunity to consider what it is that must be done and why it should be.

There have been numerous objective and careful studies conducted on the ISA by various interested parties. All of these have pointed to a need to review the law, some even going so far as to suggest a repeal of the statute. The essential point made is that the ISA is not consistent with guarantees of civil liberties under Malaysian and international law. The Government has consistently disregarded these suggestions and in justifying itself has pointed to the courts having validated the ISA and actions taken under it, and the need for anti-terror legislation.

Judicial decisions of the apex court have however been formulaic and shaped by an uninspiring view of liberty, more so since 1989 when judicial review was precluded by way of an amendment to the ISA. The quality of some of these decisions is also suspect, the conclusions drawn questionable.

For a successful review, a new approach must as such be adopted. This must be grounded on an acceptance of the immutable truth that our civil liberties are guaranteed in the widest sense and that government must be in accordance wit the Rule of Law.

The power to enact laws that impinge on these liberties can only be used sparingly and in a very narrow compass. Actions taken under these laws must be subjected to strict judicial scrutiny. Terrorism can be dealt with effectively without undue compromise of freedoms; societies across the world are doing just that using appropriately crafted anti-terror laws.

There is no point to a review if the Government wishes to preserve an unfettered power to detain at will. This must be the starting point of any discussion on the subject. If accepted, it will also be the finishing point: the ISA must be repealed.

(Malay Mail; 10th April 2009)

MIS

(Disquiet in the Malay Mail is now published on Fridays)

The Cost Of Politics

2009-03-31T09:11:00.007+08:00

(This was published by The Malaysian Insider as as "They play, we pay")

The Cost Of Politics

The UMNO Assembly has come and gone and, as has been the case for at least the last three assemblies, in its wake many of us have been left uneasy and in a state of disquiet. Seeing the inner workings of the Leviathan’s mind is never an easy thing, even at the best of times. And these really are the worst of times.

Power-lust has put a debilitating strain on our national institutions; they are in the mind of the public nothing more than lifeless marionettes in a caricature of democracy. The accumulation of money and influence has for some time now been the greater social good in the minds of many of those who claim the right to lead us. Governance has been wholly enslaved to the perverse politics required to feed this monstrous craving.

One does not have to go to great lengths anymore to demonstrate these conclusions. After this last assembly, it is a matter of public record. Reading the speeches made, I was struck by how for many of those who attended the assembly there is no other way other than the UMNO way that they are familiar with: exclusive privilege through patronage.

While it could be said that these are matters concerning the internal workings of UMNO and as such really none of my business, this cannot be the case when UMNO stakes a claim on the premiership of this nation as it does. The Federal Constitution does not provide that the President of UMNO must be the Prime Minister. That is however the understanding within the Barisan whose component parties are compelled to leave the choice of that individual to UMNO’s admittedly skewed method of electing its President.

This state of affairs is made more complex by the expectation on the part of UMNO that it is entitled to govern this nation, a viewpoint it gives life to through its control over the wider system of governance. The experience of the rakyat with matters of state has been a disappointing one and the general belief is that all constitutional bodies and agencies of the state will act to further the interests of UMNO and, where interests overlap, the Barisan.

Seen in this light, the internal workings of UMNO are a matter of national concern; the national interest underscoring the appointment of a Prime Minister is ultimately left vulnerable to those who are able to successfully wield influence at the UMNO Assembly.

As I have written elsewhere, this is not the scheme envisaged by the founders of the Federal Constitution, which instead puts in place an appointment process grounded on His Majesty the Yang di-Pertuan Agong’s judgment as to who it is that commands the confidence of the majority of members of the Dewan Rakyat.

For many in UMNO and the Barisan however, political convention must trump constitutionalism. Both the party and the coalition have made this clear in the way in which concerns over the appropriateness of Datuk Seri Najib Razak as Prime Minister are being avoided.

This cannot be right, the unease that the failure to take appropriate steps to clear the air has given rise to is no small matter. It pertains directly to public confidence in the due administration of this nation. If the positions were reversed, the same rationale would apply: Datuk Seri Anwar Ibrahim would not be an appropriate candidate until the accusation of sodomy by Saiful Bukhari was dealt with.

Public confidence is crucial to our survival. We are a nation in crisis facing external challenges of great magnitude. Part of the reason for this is the sustained maladministration that we have had to endure over a prolonged period of time. Put bluntly, the nation is not firing on all pistons and we are not nearly as prepared or resourced to deal with what we will have to be when the full significance of world events hits us.

The choice of Prime Minister at this point is a crucial one. In addition to addressing Malaysia’s response to the global economic crisis and its impact on the rakyat, the next administration must address two objectives that are vital to our continued survival. The first of these is the serious deficiencies in our current process of general and state elections. These go deeper than the issue of perceived Election Commission and Police bias to the more fundamental question of whether democratic purpose is being achieved through a first-past-the-post system and the “weighted” delineation of constituencies. Electoral ethics must also be made a priority with scrutiny of the continued value of racial ideologies that serve no purpose than to divide us. True democratic process is the only way in which this nation can ensure that it remains competitive.

Secondly, the foundations of governance must be shored up. The doctrine of separation of powers must be re-entrenched to ensure the due application of checks and balances. For this, reforms must be carried out at more than a superficial level. For this to occur, constitutionalism must be breathed into the organs and agencies of state once more. The Judiciary must be liberated from any and all political influence and be made as capable as it once was, with public confidence in the institution. The legislatures of the nation must be allowed to return to previous glory when debates were permitted without fear or favour and the legislative chamber served a purpose higher than rubber-stamping the dictates of majoritarianism.

Above all, the Executive must be made accountable once again.

This is what we need if we do not want to see this nation failing. Momentum however threatens to propel us forward in that direction. The brakes need to be applied and our direction changed, impelled forward by the will of the rakyat with the Federal Constitution serving as our roadmap.

The question we must confront is who it is that will be able to lead us in doing that.

If I wonder whether Datuk Seri Najib considers himself capable of doing this, it is because he has said precious little to suggest that he has considered the precarious situation we are in. I am also wary of the political forces that paved his way to the top that will impede him much in the same way as they did the out-going Prime Minister. There is also the matter of public sentiment concerning various matters that he either has been, or is seen to have been, involved in.

Ironically, the one person in UMNO who holds to a need for serious reform at all levels, Tengku Razaleigh, received only one nomination and could not contest the presidency. This was an error on the part of UMNO in my view.

My fear is that the nation will have to pay the price.

Malik Imtiaz Sarwar is the current President of the National Human Rights Society (HAKAM) and a lawyer. He has been at the forefront of efforts aimed at promoting constitutionalism and the Rule of Law. His blog ‘Disquiet’, and weekly column of the same name with the Malay Mail, are widely read

(Malaysian Insider 31st March 2009)

MIS

The Price Of Nation Building

2009-03-18T07:29:00.004+08:00

The Price Of Nation Building

I was criticized recently for being biased in my view of the political landscape. The basis of this criticism was a perceived unwillingness on my part to be as critical of the opposition as I was of the government. As this was not the first time, and as I had read similar observations made of other commentators whom I view as being fairly objective, I spent some time reflecting on what it is I had written in the past and why. I also gave some thought to why it is I write.

I am not a member of a political party. I cannot even honestly say that I am a supporter of any particular party. It is true that I have in the past acted as a lawyer for some of the Pakatan Rakyat parties and for opposition members, my role in that regard was limited to that of an advocate. That I have not acted for the Barisan Nasional parties is easily explained by my not having ever been retained to do so.

As a general rule, I write when I have something to say about a particular issue of significance. My training and exposure affords me a perspective that may be of assistance to those seeking to form a view. A weekly column in the Malay Mail and a monthly column for the Malaysian Insider has made this process more regimented, providing the need for a much welcomed discipline on my part. Writing is a skill that requires practice, much like any other.

In writing, my desire to espouse a viewpoint is self-limited by a narrower interest in policy and frameworks, in particular legal and constitutional. I am concerned not so much with what people say or do but with the permissible limits of their doing so.

This has quite naturally focused my attention on matters of governance, primarily at the Federal level. Though I have written at times about matters within a particular state, my relatively infrequent commentary has been largely confined to matters of constitutionality. Notable instances have been comments on the so-called Trengganu crisis last year and more recently, the Perak affair.

Concerned as I am with matters of governance, it is not surprising that I have tended to scrutinize Executive action and its impact. In the nature of things, consideration of Executive action has in turn necessitated a deliberation of the politics underlying Executive action.

An aim to ensure comprehensive analysis has required examination of the agencies through which Executive dictate has been, or has been perceived to be, effected. This has unavoidably led to commentary on the police force and other federal agencies as well as the Judiciary and other constitutional bodies.

I will concede that much of this commentary has not been complimentary. This has however not been because I am anti-government. I do not condemn merely for the fact of what I condemn having been precipitated by the government. I condemn because what it is that I condemn is, in my view, wrong in principle and its long-term implications of grave concern. Being critical does not necessarily arise from the animosity that being anti-anything requires.

Take, for instance, the tabling of the motion to suspend the Member of Parliament for Puchong, Gobind Singh. The decision to allow for debate on the motion on an urgent basis was a matter within the discretion of the Speaker. It could be said that it was also within the discretion of the Speaker’s to not allow Gobind Singh to address the House despite the motion being aimed at him and carrying with it punitive consequences was also within his discretion. Having said that, it is my view that this decision of the Speaker was and is highly questionable for having manifestly denied Gobind Singh of his right to be heard in his own defence.

My criticism in this regard is not intended to reflect my being anti-Barisan or anti-government. It is instead borne out of a commitment to the fundamental principles upon which democracy was established in this country. I would hold the same view if the motion was against a Barisan Member of Parliament and he or she was denied an opportunity to be heard. The Rule of Law is not a matter of expediency.

Where I have asserted that the Executive has occasioned abuses of power, and no such assertions have been made against the opposition, at the Federal level the opposition has no such power to abuse. At the state level, in my view, no such abuse has been demonstrated. That is understandable; the Pakatan Rakyat state governments have no influence over federal agencies or constitutional bodies.

If the Pakatan were ever to form Federal Government, it would be the subject of scrutiny in very much the same way as the Barisan is at the moment. Civil society has promised that it will have higher expectations of the Pakatan. It has already set the tone with its scrutiny of the Pakatan state governments.

And where I have expressed a preference for the Pakatan, then it is only because I think that it is not as entrenched in its politics as the Barisan is and, unlike its counterpart, is still capable of distinguishing its own political needs from those of the nation as a whole. Though it is not without its own faults, it espouses ideals that the Barisan seems to have abandoned some time ago. To the great majority of this country, a strong and accountable system of democracy is more than just a matter of political convenience.

It is far too convenient to dismiss criticism for it being anti-government without regard to what it is that is being said. No government is infallible, least of all one that has virtually untrammeled powers. Confronting the painful realities is the only way in which we can progress, it is the price of nation building.

(Malay Mail; 17th March 2009)

MIS

Chilling Out With Karpal Singh

2009-03-18T07:19:00.004+08:00

Distilling it to its essence, Karpal Singh is being prosecuted for stating a legal opinion and for indicating an intention to seek remedy from a court for his clients.

I was in court yesterday and had the benefit of hearing the charge read out to him. The charge of sedition is in respect of certain statements made during a press conference on 12th February 2009, held just after the Perak controversy erupted. These statements included the following excerpts reproduced by Malaysiakini:

"The allegedly seditious statement read out this morning was from a partial transcript of a press conference held at the law firm, during which Karpal had said Sultan Azlan Shah could be taken to court in his official capacity for authorising the removal of Pakatan Rakyat Perak Menteri Besar Mohd Nizar Jamaluddin.

Based on the underlined parts of the transcript, Karpal is alleged to have said: ‘With that ruling of the federal court which has stood the test of time for 32 years, beyond a pale of a doubt, the Sultan of Perak has contravened Article 16(6) of the constitution of the state of Perak.

‘In my view, until such time the assembly has invoked the provision of Article 33(1), both Mohd Osman Jailu and Jamaludin Mohd Radzi remained PKR assemblymen, together with Jelapang assemblywoman Hee Yit Foong remaining with the DAP until her resignation letter was subjected to determination by the assembly pursuant to Article 33(1), thereby causing the Pakatan Rakyat to have 31 members in the assembly of 60 members.

‘It cannot therefore be said that the Sultan of Perak acted intra vires (when) in fact (he) acted ultra vires Article 16(6) when he determined that Menteri Besar (Mohd) Nizar Jamaludin had ceased to command the confidence of the majority of the members of the legislative assembly and was therefore required to tender resignation of the executive council over which he presided including his own resignation.

‘Clearly the Sultan of Perak cannot invoke his powers under Article 16(1) which states [His Royal Highness shall appoint an Executive Council] to appoint a Barisan Nasional executive council with a new menteri besar and a new government. The government of Menteri Besar Nizar Jamaludin still had constitutional supremacy and legitimacy. The actions of the Sultan of Perak are clearly premature.’

These statements give a sense of the nature of what Karpal said and of what the senior lawyer was trying to communicate. It would not be unreasonable to say that the nature of his observations was similar to that of the numerous opinions on the issue that were published at the time.

It is true that Karpal did go on to speak about the remedies that Nizar could see and explained that these could and would be procured by way of an action againt His Highness, Sultan Azlan Shah. Karpal however explained why this was so and pointed to precedent in the course of his explaining his position.

Looking at this in the objective and unemotional way that one assumes the authorities did, it seems that the State will no longer tolerate any expression of opinion concerning the Rulers, and presumably the other matters with which the offence of sedition is concerned. In this regard, section 3(1) of the Sedition Act defines a “seditious tendency” as a tendency:

(a) to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government;

(b) to excite the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure in the territory of the Ruler or governed by the Government, the alteration, otherwise than by lawful means, of any matter as by law established;

(c) to bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any State;

(d) to raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any State or amongst the inhabitants of Malaysia or of any State;

(e) to promote feelings of ill-will and hostility between different races or classes of the population of Malaysia; or

(f) to question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution or Article 152, 153 or 181 of the Federal Constitution.

The impact of the decision to prosecute is yet to be fully understood, in part because the charge did not explain the seditious tendency that is the foundation of the charge. It does however appear that the prosecution case is founded on the statements having excited disaffection against His Highness, the Sultan or having questioned a matter of prerogative. Much has been said about the decision of the Sultan having been made pursuant to prerogative discretion.

How this will be reconciled with the proviso in section 3(2) is however not clear. This proviso reads as follows:

(2) Notwithstanding anything in subsection (1) an act, speech, words, publication or other things shall not be deemed to be seditious by reason only that it has a tendency -

(a) to show that any Ruler has been misled or mistaken in any of his measures;

(b) to point out errors or defects in any Government or constitution as by law established (except in respect of any matter, right, status, position, privilege, sovereignty or prerogative referred to in subsection (1)(f) otherwise than in relation to the implementation of any provision relating thereto) or in legislation or in the administration of justice with a view to the remedying of the errors or defects;

(c) except in respect of any matter, right, status, position, privilege, sovereignty or prerogative referred to in subsection (1)(f) -

(i) to persuade the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure by lawful means the alteration of any matter in the territory of such Government as by law established; or

(ii) to point out, with a view to their removal, any matters producing or having a tendency to produce feelings of illwill and enmity between different races or classes of the population of the Federation,

if the act, speech, words, publication or other thing has not otherwise in fact a seditious tendency.

I recognize that the State has a duty to ensure the freedom to express is not abused. The right of the State to intervene is however limited to where intervention, and this must be by way of federal law, is necessary in the interests of democracy. Where this is the case, the extent of the intervention must be proportional to the threat that is sought to be dealt with. What this means is that the State cannot erect a complete barrier to expression, a state of affairs that the legislature recognized in enacting the proviso in section 3(2). Expression on sensitive issues is essential in certain circumstances.

The prosecution does not appear to have an easy case on its hands. It must show that Karpal's statements did disclose a seditious tendency and, if so, did not fall within the ambit of the proviso. From comments made by Karpal that have been carried by the media, it appears that he is not too worried in view of the way the sections are to be understood and applied. Seen from this perspective, it may be premature to say that the freedom of expression has been curtailed; a court is yet to make a decision on the subject.

Having said that, the decision to prosecute Karpal will undoubtedly have a chilling effect on free speech. Many will think that if Karpal could be prosecuted for stating a legal opinion, then it is possible that others may be charged for less. Against a backdrop of other individuals being charged for comments left on internet site, this would not be an unreasonable conclusion.

MIS

Debating The Motion To Suspend Gobind

2009-03-15T09:27:00.002+08:00

The tabling of the motion to suspend Gobind Singh from Parliament for a year by Datuk Seri Nazri Aziz is intriguing.

The motion reads as follows (taken from YB Lim Kit Siang’s blog):

ATURAN URUSAN MESYUARAT DAN USUL-USUL

Menteri di Jabatan Perdana Menteri akan mencadangkan:

BAHAWA pada 12 Mac 2009, Yang Berhormat Tuan Gobind Singh Deo, Ahli Parlimen kawasan Puchong semasa perbahasan peringkat Jawatankuasa Rang Undang-undang Perbekalan Tambahan (2009) 2009 telah mengeluarkan kenyataan-kenyataan yang mendakwa YAB. Timbalan Perdana Menteri, Ahli Parlimen Kawasan Pekan terlibat dalam kes pembunuhan.

BAHAWA Yang Berhormat Ahli Parlimen Kawasan Puchong juga telah mengeluarkan kenyataan-kenyataan yang menghina Timbalan Yang di-Pertua Dewan Rakyat setelah diperintah keluar Dewan.

DAN BAHAWA kenyataan-kenyataan yang dibuat oleh Yang Berhormat Ahli Parlimen Kawasan Puchong adalah merupakan satu dakwaan yang sangat serius dan menyalahi hak dan keistimewaan sebagai Ahli Parlimen serta merupakan satu penghinaan kepada Dewan ini.

MAKA INILAH DIPERSETUJUI BAHAWA Yang Berhormat Ahli Parlimen Kawasan Puchong hendaklah digantung tugas dari jawatannya sebagai Ahli Parlimen selama dua belas (12) bulan dari tarikh keputusan usul ini diluluskan. Dalam masa penggantungan ini Yang Berhormat Ahli Parlimen Kawasan Puchong tidak akan dibayar kesemua bayaran elaun dan kemudahan sebagai seorang Ahli Parlimen.

It appears that the motion is grounded on Gobind having abused parliamentary process and privilege in accusing the Deputy Prime Minister of being involved in the murder of Altantuya Shaaribuu.

Leaving aside the questions of whether the matter ought more properly be taken up before the Committee of Privileges and whether the suspension of the Puchong MP for a day on 12th March brought the matter to a close, it is significant that a debate of the motion must necessarily involve discussion of whether Gobind Singh had conducted himself inappropriately.

This would necessarily involve a consideration of whether the making of the accusation was warranted which in turn would involve a consideration of the very matters that the Deputy Speaker had directed Gobind Singh not to speak about on the basis that the matters were “sub-judice”.

If the sub-judice ruling holds, then the motion cannot be debated.

The motion is of punitive nature, it aims at suspending Gobind Singh without allowances and privileges. The MP must therefore be given every opportunity to state his position squarely. Additionally, all other MPs must be given an opportunity to debate the motion fully in order that the issue is fully ventilated. As such, the Speaker cannot limit the scope of debate by ruling that reference to the Altantuya case and its investigation is not permitted. This would be akin to the MP being asked to step into a boxing ring with his hands tied behind him.

If the Speaker allows full ventilation of the issue, it would not only be inconsistent with the ruling of the Deputy Speaker on 12th March and other prior rulings that have impeded the raising of the Altantuya matter in Parliament, it would also permit the Altantuya matter to be raised in Parliament.

I am not certain who stands to lose more if the motion is permitted to be debated.

MIS

Of War And Politics

2009-03-10T09:07:00.006+08:00

Of War And Politics

Shortly after the Perak affair commenced, I was at an open house function and met a man of influence. In the course of our conversation, he informed me that he had graduated from the Royal Military College. Not surprisingly, the situation in Perak came up. We spoke about the disappearance, and subsequent reappearance, of the three controversial former opposition members and the move to take over the state government by the Barisan Nasional and the Sultan’s refusal to dissolve the Legislative Assembly and soon found ourselves pondering the ethical dimension of what had transpired. At one point, perhaps because of his background, he said. “Politics is like war, all’s fair. We must expect it to get bloody.”

I understood what he meant.

It could be said that political campaigns have to be strategized like military campaigns. There has to be an objective, thought must be given to the resources available for deployment and tactics planned with a view to achieving that objective using those resources. In this, one can expect bloodshed as such is the nature of war. Losses are anticipated, even acceptable, as a factor that informs the overall strategy.

The analogy is however only apt at a superficial level. When causes and methods are considered more closely, it is obvious that they are vastly different.

Wars must only be waged for lawful cause and in a lawful manner. The United Nations Charter limits such cause to self-defence though there is an argument to be made that customary international law has expanded the scope of justifiable conflict to include humanitarian intervention such as was seen in the Balkan conflict. Further, the Geneva Conventions and other treaties put in place the rules by which wars are to be fought by reference to what is permissible and what is not. Such wars are that are fought for legitimate cause in a permissible manner are just wars, and for that are events of honour. Those who fight them are honourable.

Politics is however by its nature far from honourable. In this we must understand that a distinction has to be drawn between a cause for which politics is enlisted and politics itself for there may be noble causes in whose aid politics is enlisted.

Political campaigns are not aimed at self-defence, their twin objectives being self-promotion and the disabling of a political opponent with a view to furthering self-interest. This opponent is not necessarily someone from another organization, as political causes involve fighting friends as much as it does enemies. Loyalty and honour have very little to do with anything; they could in some situations even be obstacles to the political process. This has been more so in recent times; those politicians who have stuck to principle and been content to let action speak louder than words have suffered politically for the fact.

Where political hegemony is involved, the difference is even starker. This allows for control of the “system” and the hijacking of governance. In having such control, political objectives do not have to be achieved for lawful purpose or in a lawful manner and the ends will always justify the means.

For all of this and more, politics is not like war. To draw the comparison is to do an injustice to, even insult, those brave men and women in the Malaysian armed forces. They are patriots who, unseen, keep this nation and our way of life safe.

In contrast, save for small minority, our politicians worship at the altar of personal ambition and routinely sacrifice principle for gain. Were it otherwise and politicians understood that being elected to office was a way in which they could truly serve this nation things would be very different. For a start, the Internal Security Act and a host of anti-democratic laws would no longer be on the books, institutions that we have every right to expect to act without fear or favour would be left alone to act as they should, and we would be hopeful for our interests being looked after as they should.

Democracy was never meant to be a ladder for ambitious politicians. Its elections were aimed at ensuring that the rakyat were able to vote to office capable representatives who understood them best and who would do what was necessary to protect their interests and those of the nation. These elected representatives were intended to be the voices of reason that would help shape this nation and point it in the right direction for its journey into our collective future.

Encouraged by a lack of accountability, in the hands of our politicians democracy has become a spectator sport, a winner-take-all gladiatorial blood-fest in which the rules themselves have become weapons in the hands of oppressors who prey on the weak and vulnerable.

In the political feeding frenzy that has taken centre stage, it is the person on the street who suffers the most. Though we tend to blame this on the politicians, we overlook that politicians have been able to get away with what they do for one reason: at some point we stopped caring that our politics lacked ethical foundation. We were satisfied as long as we had opportunity to enlist politics for our individual benefit. Those who did not were dismissed in our minds as acceptable collateral damage.

In doing so, we became a part of the problem.

Politics like war? It would be more in our interests if that were so as limits would be respected and actions circumscribed by honour. However, until we take ourselves out of the equation and look to the nation’s interests, that will never be the case.

(Malay Mail; 10th March 2009)

MIS

Assault On Legislature, Constitution Dead

2009-03-08T11:27:00.004+08:00

Discussing the Perak situation with specificity is, by this stage, a difficult thing to do. So much has happened so quickly. Nuanced actions and counter-actions, some of it in uncertain legal terrain, and relatively scarce details have made it precarious to consider certain key events – the legal action against the Speaker and its incidents, for instance – with the depth that only certainty would allow for.

Having said that, whatever the specifics may be and whoever may be right as to the validity or legality of certain aspects of the unfolding saga, when considered from a broader perspective and with reference to the fundamentals of democracy, I do not think that the situation in Perak is very complicated at all. As Tengku Razaleigh recently observed, a chain-reaction of illegality has left Perak possibly without a legitimate government and the Constitution a dead piece of paper.

I was too young to fully appreciate the terrible impact on democracy that the events of 1987 and 1988 had. Understanding came later, as I learnt to see what needed to be seen: the supremacy of the Constitution, the separation of powers and the check and balance it is aimed at, the independence of the judiciary and, correspondingly, the legislature. But even as my awareness of what had happened and how it had happened increased, I rather naively found myself thinking that it was unlikely that we would ever see anything of the likes again. Those events had simply been too heinous and the injuries inflicted on this nation too serious to ignore, even by those who had been responsible and those who would possibly follow in their footsteps.

Or so I thought.

The savagery of what has happened in Perak and the utter disregard of consequence on the part of those orchestrating the campaign go far to show how foolish I was to have believed that all of us, without exception, recognize that some costs are too great and for that, even blind ambition has its limits. It is clear now that this is not necessarily the case; for some, even the nation itself is expendable.

In saying savagery, I recognize that there has been neither bloodshed nor preventive detentions, though it is still too early to say for sure that things will stay that way. The incitement carries on, and mobs are being driven to frenzy to the throb of the war drums. Amidst the calls for blood, bullets have been sent, a disabled parliamentarian assaulted and some of his colleagues battered. The police have apparently too much on their hands to move with the speed that they are capable of and, as such, as things stand serve no useful role as the deterrent that the situation sorely requires.

Violence has however been done; to the Federal and State constitutions, to the Rule of Law and to all that these fundamentals represent. War has been waged on democracy itself.

I can think of no other way to characterize events.

As thing stands, the Speaker is still the Speaker. He has been at all times vested with the full powers of his office and the discretion to exercise those powers. He may have committed mistakes in arriving at certain decisions, but those are matters for the Legislative Assembly itself or, where legal limits have been transgressed, for the courts whose powers in this regard are limited by reason of the separation of powers. Until corrected, the Speaker’s decisions stand, be they the acceptance of the resignation of the three members who crossed the floor, the issuing of the show cause notices to the alleged usurpers of power and the effecting of their suspension, or the calling of the emergency sessions of the Assembly.

And yet under the hand of the Executive, in a manner reminiscent of the locking up of the Supreme Court in 1988 the Legislative Assembly itself was put out of bounds to members of the Assembly, This was done at the instigation of the State Secretary, an officer of the executive and as such its representative, with the assistance of a police force duty bound to protect the system of governance and associated freedoms put in place by the constitutions of this nation.

In doing so, the Executive laid siege on the Legislature. The sight of the Federal Reserve Unit barring the way into the Legislative Assembly, fangs bared and water cannon poised, was as close a physical depiction of democracy being taken hostage as we will ever see. The underlying intention of the exercise brings this further into relief. It was apparent that the Assembly had to be prevented from meeting for as long as it took for the lawyers to do what they could in court. Injunctions against the Speaker had been applied for. Once these were granted, the process that the Speaker had started would be brought to a halt.

The fact that the injunctions had been applied for shows clearly how far democracy was subverted. The making of the applications underscores awareness on the part of those orchestrating the campaign that self-help was not permissible. The validity of the Speaker’s actions had to be tested before a court of law. If they were not needed, the injunctions would not have been sought.

Despite this appreciation of the obvious, the might of the state was brought to bear. A federal agency was brought in and tasked to do what it was not mandated by law to do: keep the Assembly at bay to protect the interest of a coalition of political parties.

There is no law that allows police officers to deny members of a legislative chamber access to that chamber for the business of Legislature. It is not for any police officer to unilaterally determine that the business being conducted is not within the ambit of the legislature, no matter who might say it is. What the police force did was not justified in law. No crime had been committed. Though the gathering masses was reason enough for a police presence, breaches of the peace did not occur nor were orders to disperse issued, unsurprising given that the focal point was the denial of access to the Legislative Assembly.

It is glaringly obvious that confronted with a scenario that left it vulnerable to a tactical maneuvering of legislative procedure, and an inability to resolve the imbroglio to advantage, the Barisan Nasional at the state and federal level collectively took the law into its own hands. The plan to capture Perak had run into a brick wall and rather than go around it, they decided to blow it up and everything else with it.

The situation is comparable to a hypothetical scenario in which Pakatan Rakyat Members of Parliament barricaded Parliament House to deny Barisan Nasional Members and the Speaker access so as to prevent them from legitimately making a law that they would otherwise have. The only difference is if that had occurred, the Barisan Nasional would have denounced the exercise as an attempted coup d’etat and punished those involved to the full extent of the law at its disposal.

It does not make any difference that that the Barisan Nasional forms the Federal government of the day and is in a position to direct the police force; like all other institutions, these institutions are bound to act constitutionally and in accordance with the law. Malaysia is still a democracy predicated on constitutional supremacy. The expectation that all affairs will be conducted to the exclusive convenience and the advantage of the Barisan Nasional and its leaders is more suited to a dictatorship in which the Rule of Law means nothing.

Through the last week Malaysians have borne witness to a shameless display of belligerence and arrogance. We have heard a senior minister describe the emergency session, held by necessity under that now immortalized rain-tree, as “uncivilized”. Another senior minister described the Speaker as a ‘boy’. Though in line with the other ridiculous observations of ambitious UMNO leaders that Malaysians have had to endure since the beginning of the Perak affair, they do little to mask the obvious; that the Barisan Nasional appears to see no limits to what it is permitted to do to achieve its objectives.

And if it could do this in one state, what is to stop it from acting in the same way in other states or at the federal level. Judging by the way in which it has responded to criticism over its actions these past few weeks, it would seem nothing much. It is manifest that the Barisan Nasional considers itself a law unto itself.

That is the painful truth that lies at the heart of Tengku Razaleigh’s declaration that the Constitution is dead.

(Malaysian Insider; 6th March 2009)

MIS

Precedential Transitions

2009-03-03T08:05:00.004+08:00

Precedential Transitions

The Prime Minister has declared that the anticipated power transition to Datuk Seri Najib Razak will occur as planned. The media has reported this and other news items pertaining to the subject as a transition of Prime Ministers. If this is in fact what the Prime Minister has proclaimed, and it is not apparent whether the Prime Minister had limited his remarks to the transition of the UMNO presidency, then it calls for a re-examination of the way in which governments are formed under the Federal Constitution.

For practical purposes it can be said that Parliament is dissolved when a general election is called. The government of the day, formed by the majority of the member of the Dewan Rakyat, comes to an end when this occurs, at least in theory. A caretaker government is charged with the responsibility of governing the nation in the short period before a new government is formed. This occurs when the Yang di-Pertuan Agong appoints a member of parliament to be the Prime Minister. The person His Majesty appoints is the person who in His judgment is the person commanding the confidence of the majority of the members of parliament. The appointment is a matter left entirely to the discretion of His Majesty with one condition: the appointee must be the person commanding the confidence of the majority of the members.

In the usual course, this is a matter of numbers. That person who can say that he or she commands the confidence of the majority should become the Prime Minister. This is straightforward where every member exercises his or her own judgment in coming to a choice and expresses that choice independently.

The situation is less clear where the right to choose is ceded over to a political party, or more specifically the leadership of that party or the coalition to which it exists. It may be that the party’s choice of candidate is not the choice of some or members or even a majority of them. The question then arises whether the choice of the leadership can be taken as the choice of the members of parliament from the party or coalition.

A purist perspective would lend against such a conclusion. The choice of the individual member of parliament of whom it is that he or she has confidence in is enshrined under the Constitution. A more practical approach would inevitably favour the conclusion that the party’s choice would prevail. This could however be made the basis of a plea to His Majesty. Though we have yet to see this happen on the Federal stage, we saw such a scenario unfold in Trengganu last year. There the Regent took the position that the party’s choice, predicated as it was on the majority of assemblypersons being made up of members of the party, was not decisive in view of personal preference favouring another candidate. This incident could be viewed as having some persuasive force.

The situation is not radically different where a Prime Minister resigns. As the Constitution does not cater to such a situation specifically, it stands to reason that reference must be made to the same provisions concerning the appointment of a Prime Minister.

These provisions provide for the resignation of a Prime Minister where upon his request for the dissolution of Parliament, His Majesty declines to do so. In that case, the Prime Minister must tender the resignation of the Cabinet (of which he is a member). I would think that though the Constitution is silent, the Prime Minister is permitted to resign, even where a no-confidence scenario is not in existence. To do so, he would however have to tender the resignation of his cabinet.

The more interesting aspect of this situation centres on what it is His Majesty can or should do. Save for the no-confidence scenario, the power to dissolve Parliament is one to be exercised on advice. It could be argued that without such advice, His Majesty cannot dissolve Parliament and as such is left with only the option of appointing a new Prime Minister who in turn will form his cabinet.

However, if one were to take the events of Perak as definitive, in particular the discretion of the Sultan to determine whether confidence exists, it may be open to His Majesty to take the position that by the incumbent Prime Minister resigning for reasons that have nothing to do with his incapacity, it could be said that he no longer commands the confidence of the majority. That being the case, His Majesty has the option of dissolving Parliament.

I do not think that is the correct way of looking at things. However, after Perak, it is difficult to say what is right anymore.

Leaving aside the conundrum outlined above, there remains the final dimension of this discussion: the absolute discretion of His Majesty to appoint as Prime Minister the person whom in His judgment commands the confidence of the majority. This need not necessarily be the person who replaces the Prime Minister as the President of UMNO.

That this has occurred all this while need not make it a necessity. A convention within the Barisan Nasional and the coalition’s dictates cannot bind His Majesty especially where there is reason to ask whether the proposed candidate does in fact command the requisite confidence. Imagine if personal preferences were marshaled in a way that lent to a different outcome in His Majesty’s mind. If that were to occur, there would be little room left for UMNO to maneuver, especially after the way it has carried on about the inviolability of the royal discretion. Precedent has a nasty way of biting back.

(Malay Mail; 3rd March 2009)

MIS

Serving Justice, Straight Up

2009-02-24T07:20:00.004+08:00

Serving justice, straight up

It took me a while to understand that in as much as contract, commercial, criminal, constitutional or any other field of law was important, the existence of a functioning system by which the law was applied and enforced was far more crucial. For without such a system, it would not matter at all that there were laws.

When I first graduated from law school, I believed that all things said and done we had such a system. I am almost certain now that we do not.

We have courts, some of them in very opulent buildings that are akin to palaces. We have judges at all levels, be it at the subordinate courts or into the dizzying heights of the judicial hierarchy. There is in place an Attorney General’s Chambers from which spring a number of federal counsel and deputy public prosecutors who represent the State in its legal endeavours. They are complemented by a host of lawyers who, together with their counterparts from the civil service, apply laws that have been duly enacted by legislative chambers and Parliament respectively.

Impressive, one could say. I however reserve my judgment. Just like cameras, there are “point and shoot” lawyers and judges, and there are the far more sophisticated and capable ones. Both serve their purpose but one category serves it far better, something to think about considering the legal system is one whose standard cannot be compromised for any reason at all. Lives, in the widest sense, are at stake. They are being put at risk by the kind of individuals being allowed into the system.

All this however does not directly answer the question of whether the system is one that is functioning effectively. In this, it must be understood that the ultimate arbiter of whether a legal system is effective is the public that the system is intended to serve. The level of public confidence in the system is the only yardstick by which this effectiveness can be measured.

The stark reality is that the average Malaysian entertains grave doubts about the integrity or competence or both of those who make up the system (and in this, I tar lawyers with the same brush). From a public confidence standpoint, it could be said that the system is not functioning.

We cannot blame them for so doubting. Controversy upon controversy, many of which were unnecessary and avoidable, have impacted. Suspicions have been given foundation by the findings and recommendations of a Royal Commission of Enquiry that lambasted the system and urged urgent corrective measures. One cannot fault the average Malaysian for thinking justice is no longer the sacrosanct quality that it is meant to be, having instead transformed into something pliable that can be moulded to convenience.

This has had ramifications it seems. Malaysians have no alternative but to take their cases to the courts, it is the only way in which they can have their legal disputes resolved. Faced with a system that they have come to perceive as lopsided and pliable, it appears that they have attempted to improve, or at the very least even out, their odds where they have been able to do so. If the system were seen and understood to be unyielding, this would not be occurring.

It is perception that fuels belief that the system is hardly working as it should. As a lawyer, this saddens me, not because I think it is an unfair assessment but because I can see why it is they might believe this to be the case. Over the last twenty years the Judiciary has taken a beating, inside and out. It seems like every Chief Justice since Tun Dzaiddin started his term with laudable declarations concerning the need for reform only to subsequently find that the problem areas were so entrenched that resolving them was neither easy nor possible in their limited terms of tenure. Promises unfulfilled have deepened distrust.

It is high time that those who manage the institutions in ours system of justice wake up to the hard truth that mere rhetoric and superficial changes will not serve any purpose in attempts to rebuild confidence. Efforts must be real and driven by a desire to deliver to Malaysians objective justice at its keenest. It is not enough to say that there are those in the system who do just that. Though that may be the case, there are seemingly those who do not. It must be understood why this is the case and what can be done. The situation is desperate and calls for extreme measures.

Crucially, the system must be seen to be delivering justice. It is a cardinal rule of justice that not only must it be done, it must be seen to be done. The appearance of impartiality is paramount in building public confidence in the system. In this, standards must be seen to be applied uniformly, without exception. Explanations as to why they are not, do not go very far in explaining away the fact that they are not.

Perception is key. Without the public having confidence in the system, justice will never be served.

(Malay Mail; 24th February 2009)

MIS

The Cost Of Winning

2009-02-10T08:07:00.006+08:00

The Cost Of Winning

One cannot be faulted for thinking that those who claim the right to lead us understand that the system of constitutional democracy put in place by the Federal and State Constitutions circumscribes the authority and power of the Yang diPertuan Agong and their majesties the Malay Rulers.

They surely appreciate that this is particulars so in matters of governance where even if a royal discretion or prerogative is involved, such as is invoked where a Mentri Besar is appointed, such discretion is guided by constitutional prerequisites and that the process of checks and balances must necessarily inform the exercise of such discretion.

An aspect of this process is the taking of legal challenge against the Ruler concerned. The constitutional crisis’ in East Malaysia in 1966 and 1994 saw challenges against the Governors of Sarawak and Sabah respectively, for instance. The constitutional framework makes no distinction between a Sultan or Raja and a Governor where the exercise of such discretions is concerned. Both categories of personages are understood in law to be exercising constitutionally delineated discretion. Such exercises of power are open to being scrutinized by the courts of this country.

It is for that reason that it is said that the doctrine of separation of powers, so crucial to efficacious functioning of democracy, safeguards citizens from autocratic action on the part of any organ of this country. This is the bedrock that gives foundation to the sacred principle that no person is above the law.

I believe that this notion of guided discretion prompted the Prime Minister to say last March that the appointment of Datuk Ahmad Said as Menteri Besar by the Regent of Trengganu was unconstitutional. It is also a belief that the Regent had overstepped the constitutional limits of His Highness’ discretion that prompted UMNO assemblymen as well as UMNO agencies to protest the appointment and to stand by their preferred candidate, Datuk Seri Idris Jusoh. A similar situation in Perlis led to a well-publicized crisis within UMNO at around the same time.

In these incidents, and others like them, political parties and individuals had for their own reasons voiced their disagreement with the decision of a Ruler in the belief that the Ruler erred in going beyond what was legally permissible. There was no legal prohibition to them doing so, a state of affairs that remains unchanged. Such action cannot be criminalized for being seditious as the voicing of opinions aimed at showing that a Ruler had been mistaken is allowed. All leaders are capable of making mistakes and being able say that they have done so is a necessary part of democratic forms of government.

To say that such action amounts to treason is wholly incredible. Treason requires an intention to wage war, to cause bodily harm or death or to cause the deposing of a Ruler. Saying that the Ruler is wrong may be impolite or offensive but it can by no stretch of the imagination amount to treason, nor has it ever been suggested to amount to such.

Until now it would seem.

Mr Karpal Singh and his Pakatan Rakyat associates are in the line of fire and ironically, UMNO and its agencies have put them there. The charge: that they have committed treason and sedition in having publicly taken the position that the Sultan of Perak erred in having decided to allow the Barisan Nasional to form a government in Perak.

How what it is Mr Karpal and associates have said and done amounts to treason or sedition eludes understanding, just as how it differs in principle from what was done in Trengganu or Perlis last March. In as much some may have disagreed with those who protested the decisions of the Rulers in those States, they were entitled not only to their views but also to express those views. Their right to do so is a cornerstone of a system founded on the Rule of Law, one that Tun Mahathir relied on to strip away royal immunity when he was Prime Minister.

It is possible to infer from the manifest lack of basis for the fiery denunciations that behind them lurk questionable political objectives. The imminent UMNO assembly is more probably than not a factor that has shaped the way in which the recent “win” in Perak has been approached since.

The posturing and rhetoric is further so threatening in nature that it is not unreasonable to infer that a campaign of intimidation is underway. Its objective is self-evidently the communicating of a message to those inclined to challenge the legal validity of the appointment of the new Mentri Besar: that they do so at their own peril. Such conduct could fairly be characterized as being intended to subvert the due process of law. If so, this is a punishable contempt of court.

More worryingly, such conduct incites. Too often, political leaders get so lost in their politics to the extent that they fail to see that their rallying cries potentially have a less desirable kind of influence. In all societies there skulk individuals who take it upon themselves to force through a conclusion that they believe their community requires in supreme acts of deliverance. All they need is to receive the right message. Our leaders warn us about playing with fire yet they forget sometimes that it is they who ignite sentiments with potentially devastating consequences.

The situation in Perak has caused anger and pain. It may be that the only way in which the chapter can be closed is through a decision of the courts. For many, the decision itself may be less important than the process. An airing of grievances, such as a court hearing will allow for, is more often than not essential to the achieving of reconciliation. Resolution of this nature can only be in the interests of the state and its government, whoever forms it.

Though the Barisan Nasional may have won the day in securing the right to govern, it must ask at what cost to itself and, more importantly, to the rakyat. In this case, the winner does not take all.

(Malay Mail; 10th February 2009)

MIS

Perak, A Constitutional Crisis

2009-02-06T08:56:00.006+08:00

Now that the dust is settling, it is becoming clearer what it is that took place in Perak over the last twenty-four hours. My respectful view is that His Highness may have acted erroneously in directing the resignation of the Mentri Besar.

As always, it will be useful to consider the objective facts. They are as follows:

His Highness, the Sultan of Perak, granted audiences and in doing so was made to understand that the majority of the members of the Legislative Assembly no longer support the incumbent Mentri Besar. Of these, three memberships are disputed in view of letters of resignation having been tendered to the Speaker. The Speaker has taken the position that the letters are valid and as such the two members are no longer members. Further, legal proceedings are being contemplated

excluding the three disputed memberships, both the Pakatan Rakyat and the Barisan Nasional each hold influence over twenty-eight members

twenty-eight members have indicated in private to His Highness that they no longer have confidence in the incumbent Mentri Besar. With the three disputed memberships, this number increases to thirty-one

no vote of confidence has been moved at the Assembly

the incumbent Mentri Besar made a request for dissolution of the Assembly. This request was not made on the basis that the majority of members had lost confidence in the Mentri Besar. Rather, it was made on the basis that in the circumstances it might be appropriate for fresh elections to be held in the State

on 5th February 2009 His Highness refused the request and directed the Executive Council to resign. From a statement issued by the palace, this directive was based on His Highness having refused the request for dissolution.

crucially, the directive was made in accordance with Article 16(6) of the Perak Constitution. This article provides that where a request for dissolution is made as a consequence of the Mentri Besar ceasing to command the confidence of the majority of the members of the Assembly and His Highness refuses, the incumbent Mentri Besar must tender the resignation of the Executive Council.

From the above, it is apparent that His Highness considered the situation to be one in which the Mentri Besar had ceased to command the confidence of the majority of the members. In doing so, His Highness accepted the three disputed members as still being members of the Assembly and as such approached the situation on the assumption that the Barisan block outnumbered Pakatan by three instead of one.

It must be borne in mind that:

as noted above Article 16(6) is specifically directed to a no-confidence scenario, that is the incumbent Mentri Besar can seek the dissolution of the Assembly upon his having ceased to command the confidence of the majority

Article 36(2) however provides more generally that His Highness has the power to dissolve the assembly. It is clear that this provision is aimed at allowing His Highness to dissolve the Assembly for other reasons thought to be appropriate

as a matter of law His Highness is empowered to do what is permitted under the Perak Constitution and the Federal Constitution. This is the essence of a constitutional monarchy

the Perak Constitution does not empower His Highness to dismiss the Mentri Besar. The manner in which the Mentri Besar is to be removed from office is as provided for under Article 16(6), through a refusal to dissolve the Assembly at the request of the Mentri Besar when the Mentri Besar has ceased to command the confidence of the majority of the Assembly.

It is apparent that His Highness had moved on the assumption that the request for dissolution was prompted by the Mentri Besar having ceased to command the confidence of the majority. This may have been based on a misapprehension of the situation and the appeal to the Sultan to dissolve the Assembly for reasons other than confidence. If so, then the directive to resign was arguably not tenable.

However, it could be said that all things considered His Highness had come to the conclusion that in any event the Mentri Besar no longer commanded confidence. In this context, the central question is whether His Highness was empowered to conclude that the incumbent Mentri Besar no longer commanded the confidence of the Assembly without there having been a vote of no confidence.

There is precedent. The Federal Court had in 1966 (Stephan Kalong Ningkam) determined that a similar provision of the Sarawak Constitution required there to be a vote of no confidence taken in the Assembly before the Chief Minister was obliged to resign. The decision was based on several key factors that I believe to be relevant to this discussion. These were:

the Sarawak Constitution did not empower the Governor to dismiss a Chief Minister

the phrase “confidence of the majority” was a term of art and could be read as implying the need for a vote of confidence or a vote on a major issue. The Court took into consideration the fact that the Sarawak Council Negri should, in principle, manage its own affairs.

no vote had been taken in the Council Negri and instead the Governor had come to his conclusion based on extraneous matters, particularly confidential letters. The Court observed that members expressing a view outside the Council Negri might very well take a different position in it when under the scrutiny of the public. This was of particular significance as out of the forty-two members of the Council Negri only twenty-one had indicated their not supporting the incumbent Chief Minister.

It could therefore be credibly argued that the Perak Constitution requires the tabling of a vote of confidence in the circumstances. The factors considered by the Federal Court have great significance to the scenario at hand, one as ambiguous as that which the Federal Court was faced with in 1966.

Much will now depend on what the incumbent Mentri Besar does. In Stephan Kalong Ningkam, the Chief Minister concerned took it to court and won. The Federal Court declared the Governor as having acted unconstitutionally and the dismissal of the Chief Minister invalid. Mohamad Nizar could attempt the same course.

It would be regrettable if the situation were forced to escalate to that level. Litigation of that nature, any nature for that matter, will be disruptive at all levels. With the Barisan Nasional moving in already though, it seems that there is little choice in the matter. Walking away is simply not an option that the constitution and the people and democracy will allow for.

In the meanwhile, we will have to buckle in for what has become a full-blown constitutional crisis.

(Malaysian Insider; 6th February 2009)

MIS

Making Sense Of The Perak Controversy

2009-02-04T07:42:00.003+08:00

Before embarking on an analysis of the state of play in Perak, it would be of value to consider the objective facts:

two assemblymen signed undated resignation letters as a condition to their being nominated by their political party for a state election. For this, the party also gave them full support, financial and otherwise. They won their respective seats;

the undated resignation letters were submitted to the Speaker of the Legislative Assembly. The Perak Constitution allows members of the Assembly the option of resigning their membership “by writing under his hand addressed to the Speaker”;

the party opted to submit the resignations of the two assemblymen. It is not apparent what prompted this;

the Speaker has accepted the resignations and communicated the fact of the resignations to the Election Commission. The Speaker has taken the position and ruled for the purposes of the Assembly that the resignations have taken effect and by-elections be held. He will treat the assemblymen as no longer being members of the Assembly for the purposes of proceedings in the Assembly;

the two assemblymen dispute the validity of the resignation. They do not contend that the resignations letters were not under their hand. They contend that the resignations were procured through duress; and

the Election Commission has decided that the resignations are doubtful and as such not true resignations.

From the above, it could be said that the following questions arose when the controversy first erupted:

the legal value or validity of the resignations. There is no authoritative decision of the courts on this point. A 1982 decision of the then Federal Court (Datuk Ong Kee Hui) observed that such resignations could be viewed as being contrary to public policy in view of elections at both the State and Federal level being of individuals as opposed to political parties. A question of honoring the wishes of the electorate, that is the electing of the individual as opposed to the party, arises. The Federal Court did not decide on the point as the Member of Parliament concerned did not seek to invalidate the resignation nor had the Speaker been joined as a party. The point is as such open to argument; and

whether the resignation letters were procured under duress,

However, these questions have been overtaken by events, in particular the decision of the Speaker to accept the resignations and give effect to them. The Speaker may be wrong but until he is shown to be wrong through valid process – either in the Assembly (to the extent that such process is available) or through the courts – the Speakers decision must stand.

In this regard, the Election Commission is charged with the conduct of elections. It could be argued that in order to do so, the Election Commission must have the power to determine whether an Election is needed in the first place. Where State and Federal Elections are concerned, this is established by the dissolution of the Assemblies and Parliament respectively. However, where casual vacancies (through death, resignations or disqualifications) arise, the situation is more nuanced.

The Perak Constitution (Article 36(5)) provides that a casual vacancy shall be filled within sixty days from the date on which it is established by the Election Commission that there is a vacancy. Vacancies caused by death and disqualifications are easily established. Where the latter is concerned, the matter is decided by the Assembly itself, which in law is taken to have final say (save where there is a matter of legal interpretation).

In the ordinary course resignations are similarly uncomplicated; the Speaker receives the letter of resignation and communicates the fact to the Election Commission which establishes the vacancy based on the Speaker’s declaration. From this, it is apparent that the vacancy is established by reference to the position taken by the Speaker. This is consistent with the basic principle of parliamentary democracy that it is the Speaker that regulates the assembly.

The question that arises is therefore whether this process is derailed by a dispute as to the validity of the resignation. In my view, it should not be, and the Election Commission must act accordingly. I say this for two main reasons. First, the scheme explained above.

Secondly, it is not for the Election Commission to embark on a fact-finding or adjudicative process as, amongst other things, it does not have the power to do so. In denying the position the Speaker has taken, the Election Commission is in effect asserting that that the Speaker is wrong. The Election Commission cannot do so. If there is a question as to the correctness of the Speaker’s position, then it must be challenged through proper channels.

Seen from this perspective, this unprecedented and very curious action of the Election Commission regrettably raises questions as to its motives. It must be taken to appreciate the precarious position it has left Perak in, one which looked upon objectively appears to have been made more accommodating to the machinations of the Barisan Nasional. I note that by-elections would be inconvenient for UMNO which is scheduled to have its assembly in March. It is as such open to question as to whether the Election Commission has conducted itself in the independent manner the Federal Constitution requires of it.

Where this leaves the Perak Government is an open question. It could seek a ruling of the Court as to the correctness of the decision made by the Election Commission and an order to compel the latter to conduct the by-election. This would be a time-consuming affair and occasion a delay that can only work against the interests of the State. The razor thin margin is undermining of stability and it is more probable than not the attention of those who make up the State government would be focused more on preserving their government than the affairs of the State.

The Election Commission’s stance and the underlying events would afford sufficient cause for the Menteri Besar to request that His Highness the Sultan dissolve the assembly and call for fresh elections. All things considered, this may be the best way to protect the interests of Perak. In these difficult times, governments should be focused on what needs to be done rather than politics.

(Malaysian Insider; 4th February 2009)

MIS

Fruit Of The Poisonous Tree

2009-02-04T07:38:00.002+08:00

Fruit of the poisonous tree

In much of the commentary thus far on the sudden death of Kugan Ananthan while in police custody, the focus has been on the need for greater control and supervision of the police to ensure the accountability and transparency so crucial to the curbing of abuses of power. I too have written elsewhere that the Government’s refusal to establish the proposed Independent Police Complaints and Misconduct Commission (IPCMC) is impeding its ability to deal with the attitudes and practices that have resulted in a discomforting prevalence of sudden deaths in custody.

That this is an important aspect of any meaningful and coherent effort to curb abuses of power by the police cannot be emphasised enough. The issue is really a systemic one; it is the system that is failing Malaysians and allowing for the kind of horrific events that we have been made to bear witness to far too often this last decade.

Having said that, other more immediate solutions or deterrents are no less important. A transparent investigation into the death and due prosecution of all those involved to the fullest extent of the law would serve the interest of Kugan’s family and the wider public by ensuring that justice is not only done but is also seen to be done. This would go far in helping staunch the hemorrhage of public confidence in the institution. Immediate disciplinary action would reinforce the gains.

In the same vein, there is much value in seeking to understand what it is that drives those abuses that lead to injuries or even deaths in custody.

It is readily apparent that there is no legal basis for the use of force by police officers during interrogation. If a police officer uses force he is in fact assaulting and battering an individual. In doing so, he is committing a range of crimes as well as acting wrongfully in a way that would justify a claim for damages. The question of necessary and proportional force does not arise in this sort of situation unlike in situations where police officers are confronted with the risk of injury to themselves unless appropriate defensive action is taken such as may be necessary during efforts to quell riots for instance.

Notwithstanding the foregoing being a cardinal principle of policing beatings happen; sometimes to within an inch of the suspect’s life, sometimes at the cost of that life. The question is, sadism aside, why would the police officers concerned expose themselves to potential prosecutions and damages claims.

A belief in their immunity goes some way to explaining the mindset. If police officers get away with such conduct over a period of time without reproach or reprisal, they will over time form the view that their behaviour is not only acceptable it is expected. This does not however explain what it is that prompts such conduct in the first place.

I believe the answer lies in the desire of the police officer to secure a conviction. We cannot discount the fact that in constantly being confronted by criminal acts and their consequences and having to deal with a justice system that may seem to more concerned with rules and procedures rather than justice, the police officer will over time develop a single-minded approach to getting his man. He does not care about how he gets the evidence as much as he does about getting the evidence and the conviction it will lead to. In the mind of the police officer, in doing so he is putting away a bad person, making the world a safer place for it and paving the way for promotion.

While noble in intention the approach leaves much to be desired, particularly when the end result is a custodial death. The fault may however lie in part on a system of evidence that defines itself by relevancy. All evidence is admissible to trial as long as it is relevant. As long as it is not a confession that is in issue (the law requires that to be voluntary) it does not matter that the evidence was the by-product of brutalizing that may in itself be the subject of criminal prosecution.

A solution may as such lie in a rethinking of those principles pertaining to the admissibility of evidence. The exclusionary rule implemented in the courts of the United States is a model worth considering. That rule renders evidence inadmissible if the means by which it was obtained is illegal, such evidence being the “fruit of the poisonous tree”. It goes a long way to remove the incentive to commit the kind of conduct under discussion.

Though in many ways, the refashioning of admissibility principles is really a matter for Parliament, the Malaysian courts have a limited discretion that can be wielded in such a way so as to compel respect for those constitutional guarantees that such conduct violates. This most recent tragedy is reason enough for the courts to start considering the possibilities.

(Malay Mail; 3rd February 2009)

MIS

Is The Die Cast?

2009-02-02T19:43:00.003+08:00

Though it is not yet possible to conclude what it is that occurred during the last hours of the life of Kugan Ananthan, those few facts with which the public has been acquainted with strongly suggest some measure of culpability on the part of those police offers involved in his interrogation. It is a fact that Kugan died in police custody during an interrogation in which he had been severely beaten. It is also a fact that the Public Prosecutor has classified the death as having been caused by murder for the purposes of investigations and the police officers concerned suspended.

It must however be emphasized that until and unless the police officers concerned are convicted, they are innocent of any crime. Their guilt should not be prejudged. We should also not rush to any conclusions on the racial dimensions of the incident as there is insufficient material available on which we can form any conclusion.

Having said that, questions must be asked. There is an urgent need for Malaysians to understand what it is that occurred and why it happened. We must also be made to understand why it is the police force responded as it did when news of the death surfaced. Questionable reactions on the part of the ranking police officer in charge have regrettably resulted in an uneasy belief that the truth is somehow being avoided.

The context of this latest tragedy cannot be overlooked. The prevalence of sudden deaths in police custody have been a source of concern for some time now. They were one of the main focus areas of the Dzaiddin Commission established in 2003 to look into the operation and management of the Royal Malaysia Police.

It is not insignificant that the Commission found there to have been a worrying level of abuses of power on the part of police officers coupled with a lack of due regard to the civil liberties in the discharge of their duties. It is equally compelling that the Commission implicitly concluded that the self-regulating the current Police Force Commission in effect allows for had allowed this very worrying state of affairs to have come into existence when it strongly recommended the urgent establishment of an Independent Police Complaints and Misconduct Commission (IPCMC).

The stark reality is that sudden deaths such as Kugan’s are unnecessary and could in all probability be avoided if there are sufficient controls in place. The prevalence of abuses of power regrettably points to safeguards being inadequate despite the obvious need for them. It could as such be said that Kugan died at the hands of a system that, through studied indifference, has nurtured an environment in which police officers seemingly feel justified in taking the law into their own hands.

The consistent refusal on the part of the Government to establish the IPCMC despite the obvious need for the external, and life saving, control it would allow for is mystifying. As has been stressed for many years, the number of deaths associated with the police force is uncommonly high. Allowing this state of affairs to perpetuate is only going to foster the impression that extra-judicial killings of the kind more commonly associated with banana republics is a defining feature of this nation. Public confidence will not be shored by yet another high profile case in which police officers are accused of murder.

It is sad to note that the Government’s reluctance seems to be prompted more by a desire to appease the police force rather than a rejection of the merits of the IPCMC recommendation. This appears to be motivated by a need on the part of the Barisan Nasional, and in particular UMNO, to enlist the police force to further its political causes, a process which suits the convenience of the police force as long as it serves its interests. This quid pro quo is to an extent reflected in the Government’s willingness to implement measures recommended by the Dzaiddin Commission, including legislative amendments aimed at protecting due process rights of arrested persons, that have not put it on a collision course with those who control the police force.

In this, it is impossible to ignore the fact that the only real opposition to the IPCMC has come from the police force itself. That this opposition is manifestly self-serving, and such of little credibility, is demonstrated by the conclusions of the Dzaiddin Commission that abuses of power were systemic and took place under a shroud of pervasive corruption that engendered a lack of transparency and accountability. It is for primarily this reason that the IPCMC was recommended.

This is not to say that the Government or the police force condones extra-judicial killing or torture. I do not believe that either institution does. The high incidence of such deaths however gives rise to the question of whether such deaths are perceived as sometimes being necessary incidents of the kind of tough policing efforts that the country is said to require.

Viewed from the perspective defined above, the issue at the heart of the Kugan tragedy is really one of control and regulation. There is absolutely no justification for the abuse or killings of any person by the police. If there are those who think that such conduct is justifiable, then they must be shown otherwise and terminated from service.

That the Government and the police forces itself are respectively incapable of curbing abuses of power, and the incidents of such abuses including sudden deaths in custody, is now beyond doubt. It if were so this latest controversy would not have erupted and we would have seen more decisive action taken over the past five years. External control is as such clearly essential to efforts aimed at reforming the police force. The Government is however opposed to external control for reasons that appear to be primarily shaped by its political perspective, It would not be unreasonable to conclude to that end that the Government views itself as not being in any position to reign in the police.

If so, as shocking as it may be, it would seem that the die is cast and until a new Government is formed Malaysians should accept sudden deaths and other forms of abuses as a part of the Malaysian way of life.

I may have overstated the concern. There is after all one question that remains to be answered by the Government, the one that everything really boils down to all things said and done: Has the Government accepted the risk of such abuses reoccurring as the necessary consequence of a political balance it wishes to maintain? The only way it can show that it has not is to establish the IPCMC; it has every justification to do so now.

(Malaysian Insider; 2nd Feb 2009)

MIS

Free RPK: The Appeal

2009-01-28T18:35:00.004+08:00

As you are aware, the Home Minister appealed the decision of Justice Syed Helmy. The appeal is scheduled for hearing at the Federal Court in Putrajaya on 11th February 2008, 9.00 am. We had asked for a panel of five or seven judges (as opposed to the usual three) in view of the legal significance of the issues involved. Our request was refused and the appeal will presumably be determined by a panel made up of three judges.

It is the Home Minister's appeal and as such, the Government will have to convince the court that the High Court erred in law or fact. Counsel for Raja Petra will have the task of defending the correctness of the decision.

MIS

A New Beginning

2009-01-20T06:19:00.003+08:00

A New Beginning

Political analysis is useful for providing the insights that flow from the more rounded appreciation of context such analysis allows for. Without context the significance of specific action will elude us. For instance, a statement by a politician could mean one thing in isolation but mean something completely different when considered against a backdrop of political intrigue. Anwar Ibrahim saying that he has six defectors from the Barisan Nasional is in itself suggestive of nothing more than an erosion of political support for the BN. However, when viewed against all else that Anwar Ibrahim has been involved in these past six months, the statement potentially takes on added resonance.

Post March-8th, there has been a sharp increase of political analysis on the Malaysian socio-political scene. The alternative media and blogs provide a veritable feast of information on a daily basis on a diverse range of subjects in the field. This has been a good thing for in setting out context, Malaysians have been more able to appreciate the many other ways of looking at things. They have also been able to see that free expression is something that does not harm our society as much as it does the politicians who hide their deficiencies behind such fears. Freer access to a range of diverse opinion has allowed for a maturing of the viewpoint of the Malaysian on the street.

There is however a downside, the root of which lies in the self-perception of the analyst that he and what he says is important. In their enthusiasm, analysts sometimes tend to forget that their analysis is not so much about their being able to do so but rather the truth of a given matter.

In an interview in 1993, the late Edward Said reflected that his meditations on politics and life had “always been a matter of exploration, of self-criticism and constant change in trying to surprise myself as well as my readers.” His reflection was prompted by a sense that public intellectuals tended to allow themselves to become “prisoners of their own language” and to be more concerned with “producing more work in fidelity to what they’d done before” at the expense of a truer perspective.

A noteworthy observation, it cautions against the very thing that seems to have occurred as the state of play between the BN and the Pakatan Rakyat intensifies. Analysis in these heightened times could be likened in many ways to commentary on a football league cup with many commentators having picked their side. Governance is however not about picking a side and sadly, more has been obscured than revealed by the parade of viewpoints and assessments.

In the run-up to the Kuala Trengganu by-election and its aftermath, we have been told what it all means for the BN, Abdullah Badawi, Najib Razak, the Pakatan Rakyat and Anwar Ibrahim. There are permutations upon permutations. We are asked to consider whether there was vote rigging, whether it is Abdullah Badawi that the people rejected or Najib or even the BN, whether it was the Chinese vote that swung the result or whether, as the MCA claims, the Chinese remained loyal to the MCA. We are told so many things in one form or the other, that in the end we are told very little.

For all this, nothing has been made clear and the question uppermost in mind is whether it really matters at all anymore who does what and how.

Whatever the spin or counter-spin, it is glaringly apparent that things are not as they should be in this country. Just as it is obvious that things should have been far better and could have been. It would not be incorrect to say that there are Malaysians who feel that they have come to be held hostage by an administration that is more concerned with protecting its own interests than those of the nation.

The state of flux points to many Malaysians having woken up to the fact. They want change in the most fundamental of ways: independence from a mindset that has left them colonized by an elite for its own benefit.

They are not fastidious as to who it is that becomes the Prime Minister of this country or who it is that forms the government. All they want is a government made up of men and women who believe in the ideals that the founders of this nation thought were a solid basis for a glorious future for all Malaysians. They want those men and women to believe in these ideals enough to get on with what needs to be done as a government of the people, by the people, and for the people. They want the respect that each and every one of them is entitled to as a citizen.

In one of the several speeches that President Barack Obama gave on his historic journey into Washington for his inauguration, he said: “What is required is a new declaration of independence, not just in our nation, but in our own lives.”

It is the same for us. We are in search of a new Malaysia. To find it, we must embrace the possibilities. To do that, our minds and hearts need to be liberated.

It is time for a new beginning.

(Malay Mail; 20th January 2009)

MIS

Do Unto Others

2009-01-13T14:18:00.005+08:00

Do Unto Others

Imagine a rocket being fired into our territory by persons or organizations in a neighbouring country. There is damage to property and a few people are killed. It would be inconceivable for our government not to take a position and to demand that the government of that neighbouring country take immediate steps to ensure that the event does not reoccur.

Let us say that the event does reoccur, more than once, with more damage and more deaths. The government of the neigbouring country fails to act in a way that the situation requires. More damage is sustained; more Malaysians are put at risk.

At some point, the Malaysian government would have to take steps to secure its population, especially if there is no possibility of a diplomatic resolution of the matter or if such an option were to take too long. Defensive measures may require an offensive strategy to neutralize the site or sites from which rockets are being fired or the persons or organizations involved.

If that were to happen, I think many of us would have no difficulty in accepting the strategy as a necessary measure. Our sovereignty and the lives of Malaysians are not dispensable.

Would it make a difference to us if the Malaysian government had acted in a way that compelled the firing of rockets, for instance by occupying the territory, indirectly if not directly, of those who launch the rockets and acting oppressively? From the former’s point of view, a liberation war is being waged. From the viewpoint of the latter, a crime of aggression is being committed against Malaysia. I am sure some of us would support the offensive while others might have reservations considering the oppression of the people of that territory. All of us would however have great difficulty with the risk to life and limb posed to Malaysians by the continuing attacks.

The situation is a multi-faceted one and not easily resolved.

I would think that there are many who feel that Israel had to act decisively. Leave aside the historical antecedents, Israeli sovereignty and lives are at stake. Options are arguably limited, a state of affairs compounded by the fact that the Palestinian government, to an extent that renders cooperation between the two governments on this issue impossible, condones the rocket attacks.

That is why, and I think rightly so, the debate has settled on the question of whether Israel is playing by the rules. In this there are several issues. First, whether there was sufficient basis for Israel to launch the offensive considering the stranglehold it has over the Gaza strip, and the grave prejudice this has caused to the Palestinians. Secondly, if there was basis, whether the extent and intensity of Israel’s response is proportional and as such justifiable.

The first issue is a heavily nuanced and emotional one. It has been made more so by developments in international law since 9/11. The “preemptive strike” doctrine that underlay the attacks on Afghanistan and, arguably, Iraq has left its mark in the way the international community views a nation’s right to self-defence. The continuing defiance of the UN Security Council’s call for a ceasefire reveals an appreciation on the part of Israel as to the state of flux that international law on the issue currently is in.

The second issue is less ambiguous. It is evident that Israel has exceeded legal and moral limits in the way it has waged its so-called defensive war. As the Special Rapporteur for Human Rights in the Occupied Territories has noted, the contraventions of international humanitarian law and the laws of war include the collective punishment of the 1.5 million people living in the Gaza Strip for the actions of a few militants, the targeting of civilians and the disproportionate military response. It is apparent that war crimes are being committed and, arguably, crimes against humanity.

Though it is clear that the aggression must stop, the way forward is unclear in part for the way in which the matter must be playing out politically within Israel and the Palestine State. In the hypothetical posed above, I am not certain that Malaysians would directly reject extreme and disproportionate measures being taken if these actions were obscured by domestic politics. Consider the way in which a vast number of Americans supported the war on Iraq despite its manifestly precarious foundation. Consider the way in which we unthinkingly support many of our government’s policies and decision despite their obvious consequences.

The efforts by the government to highlight the injustice being perpetrated against the Palestinians are commendable. It seems that the only way the issue is going to be resolved is through concerted action at and through the UN and our efforts may play some part in setting the stage for this to occur.

We must however be cautious in the way we take positions. Stripping the conflict down to its essence, it is a struggle between the colonized and those who colonized them. Our support for the aggrieved should be driven by a desire for justice and not by emotions that leave us blind to the realities.

If it is in fact a desire for justice that drives the Malaysian government in this matter, then I think it is an appropriate time for it to show its commitment to principle through ratification of the statute of the International Criminal Court and the principal international human rights treaties that Malaysia has not as yet. There are also other nations, such as Somalia, that are desperate for effective international measures and for which efforts on the part of the Malaysian government could go a long way. This nation must stand up and be counted.

And to do that effectively it should start where it matters most: at home.

(Malay Mail; 13th January 2009)

MIS

(This article has been edited since its publication in the Malay Mail)

How To Change The World

2009-01-06T11:06:00.003+08:00

How To Change The World

I had heard of Haris Ibrahim even before I met him. Some acquaintances had told me of a lawyer who was seemingly singlehandedly taking on the world in his defence of principle. At the time he was involved in the case of the Besut Four, four individuals who had been convicted by a syariah court and sentenced to three years jail even though they had renounced Islam. His was the titanic struggle that pointing to an unpopular and inconvenient truth always is.

Reading of the case in the newspapers, it had struck me how frustrating it must have been for Haris to have to contend with a system that seemed more concerned with finding excuses than solutions. I wondered what it was that made him do what he did.

I came to see the sense of his choices when I met him for the first time at a Bar Council human rights training session a short while later. I saw a man who embraced the world and whose heart had enough space in it for everyone.

Over the years, we have collaborated on various initiatives, driven by a common belief in Malaysia’s need for an open and inclusive society in which all its children, irrespective of race, religion or culture, can have the freedom to pursue their dreams. It is this common belief that saw us developing a proposal for a commission that would be empowered to enquire into matters of religious harmony. It led us to engaging in a public awareness campaign aimed at creating awareness about worrying constitutional trends. It also prompted us to team up in a number cases that we believed had great bearing on the way things would be and which have ultimately left their marks on this nation.

Haris has become one of the most important civil society voices of this era. His highly influential blog, The People’s Parliament, and the range of civil society initiatives he gave life to over the last two years are breathtaking for their depth of reflection and breadth of reach. He was a prime mover of The Peoples’ Declaration, the Barisan Raykat and a host of other initiatives all of which were aimed at making the rest of us see that we had the power to effect change in our hands.

Before we began to believe in ourselves, Haris already did. March 8th proved his faith not to be misplaced. As much as this was about the soundness of his vision of what could be, it was equally about the correctness of his method. I have had the privilege of seeing some of his ideas come to life and I can say with conviction that nothing happened overnight. They developed one step at a time, from conceptualizing to planning to implementation, everything had its time and place.

The lesson I took from this is that to change the world, you must want it to and then take it one small step at a time.

Any effort aimed at improving our community, no matter how small, is a worthwhile one. Change is the by-product of an accumulation of worthwhile endeavours that may have as individual efforts escaped notice. We might think that one person’s choice not to engage in corrupt practices anymore would not bring endemic corruption to an end. If however there were sufficient numbers of such individuals, a tipping point could be reached and we might see a day when those who bribe stood out as the exception rather than the norm.

Understanding that our every action has a consequence is therefore the key that unlocks the door to change. Revolutions always start small. Consider the signals we send to people around us - family, friends or colleagues - and how those signals will be received. If you are a father and you bribe a police officer in front of your child, what you are in effect saying is that corruption is acceptable no matter how you might try to justify your behaviour. In the same way, if you are racist then those who you influence, even indirectly, will be influenced. It is the less obvious dimensions of what we do on a daily basis that trap us into vicious cycles of destructive conduct.

The change we effected last year was only skin deep. For us to transform ourselves we must confront the question of whether we really want change. We cannot run away from the fact that though the politicians are to blame for a good number of things, the ills that ravage our society stem from a value system that we have allowed to warp over time for our own convenience.

The question for us is what we propose to do about it.

(Malay Mail; 6th January 2009)

MIS

The Freedom To Be

2009-01-05T11:56:00.006+08:00

(I start a monthly column with The Malaysian Insider today. My column will appear on the first monday of each month. This is the first (I have made some minor changes since submitting it))

The Freedom To Be

In his seminal work, “Islam And The Secular State: Negotiating The Future Of Shari’a” (Harvard; 2008), the noted scholar Abdullahi Ahmed An-Naim observes that it is not possible for people of any society to keep their religious belief, commitments and concerns out of their political decisions and choices. He notes that the categories of understanding that people employ in their everyday life cannot neatly be parsed into the non-religious and the religious, an approach which has led to tensions and a spiral of mutual violence and destruction.

An-Naim as such propounds that it is both practical and healthy to recognise the role of religion and then regulate it as a source of guidance for political decision. This must however take place in the context of a secular state. An-Naim defines this as a state in which institutional separation between Islam and the state is maintained and the influence of religion in the public domain is open to negotiation, such negotiation being contingent upon the free exercise of the human agency of all citizens, Muslims and non-Muslims alike. Religion needs secularism, he argues, to mediate between different communities (religious and non-religious) as well as securing the legal and political space for religions to develop as they should. In this context, he observes that the safeguards of secularism, constitutionalism, human rights and citizenship are vital to set limits on the power of the majority and impede oppression.

The points An-Naim makes are of great relevance to us.

It is beyond question that Islam is closely linked to politics in this country with Malay-centric political parties PAS and UMNO making use of the religion for political advantage to their respective ends. For PAS, this has been portrayed as an advancing of its own ideological positions, centered on Islam as they are. UMNO on the other hand invokes Islam in aid of its Ketuanan Melayu ideology. In this, Islam has become political currency and a strategic weapon in the campaign against each other to the detriment of other political and civil society actors who have in any event been largely silenced by the stranglehold maintained by PAS and UMNO on Islam and Malay rights. The spectre of race riots and heavy-handed policing of anti-expression laws have stifled necessary and practical discussion of the very serious issues that arise and which affect all Malaysians.

The upshot is that both parties have ultimately positioned Malaysia as an Islamic state in one form or the other. UMNO continues to push boundaries on the application of Islamic law in an effort to showcase its Islamist credentials. Less circumspect and notwithstanding its membership of the Pakatan Rakyat, PAS insists in the face of constitutional limitations that the syariah must be the supreme law of the land, characterizing its demands for the same as being nothing more than allowing Muslims to fulfill their religious obligations. This has unfortunately given rise to tensions in various quarters.

The controversy over the implementation of hudud laws illustrates the foregoing. Under the Constitution as it is currently framed, it would not be possible for hudud and qisas law to be implemented at either the State or the Federal level. As it stands, the Constitution divides legislative power between the State Legislative Assemblies and Parliament. The power to enact criminal law is vested in Parliament with the State Legislative Assembly having only the limited power to enact offences against the precepts of Islam where such offences do not concern any of the matters within Parliament’s power to enact criminal law. These offences are only as against Muslims. Furthermore, the syariah court is limited to imposing a maximum sentence of three year jail or a fine of RM5,000 or six strokes of the whip or any combination thereof. It is obvious therefore that the State has no power to make hudud and qisas laws, which amongst others are punishable by amputation and stoning. This was the basis of Zaid Ibrahim’s legal challenge against Kelantan and Trengganu in 2003.

The constitutional scheme is not beyond PAS’ comprehension judging by its shift in rhetoric. The suggestion that hudud and qisas would now be introduced if the Pakatan Rakyat forms the Federal Government strongly suggests that PAS appreciates that criminal law is a matter for Parliament. It would nonetheless be impossible for PAS to replace the current criminal law system with a syariah based system without a constitutional amendment and an overhauling of the entire system of justice. The constitution as it stands allows for the enacting of criminal law that does not fall within the ambit of offences against the precepts of Islam or, put another way, neutral or secular criminal law. This is consistent with the guarantees of religious equality and harmony as well as individual autonomy under the Constitution that impede the imposition of religious based law on person of other or no faiths.

That PAS continues with its posturing nonetheless reflects the continued political value of the religious card, as does UMNO’s failure to reject the possibilities outright. In doing so, both have adopted a majoritarianism that in projecting Malaysia as a hybrid-Islamic state oppresses both Muslim and non-Muslim alike.

For non-Muslims, the public space for expression and discussion has been limited through discriminatory policies that are justified by reference to their aim of protecting Islam. The recent directive to cease publication of the Herald in the Malay language illustrates this as do a range of other policies or directives. The question must be asked whether Islam or even the Malays are in need of protection and, if so, from what. Islam is already protected under the Constitution and the legal framework, and ample provision has been made for Muslims to practice their faith.

For Muslims, the freedom and diversity provided for by the syariah have been obscured in the shadow of the monolithic Islam that authorities have been permitted to erect. Through laws and fatwas and denunciations, it has become such that only one type of Islam may be permitted, that type which the State defines and applies. This does not concern only the so-called deviationist types of Islam, the Ahmadiyah movement in Selangor being the latest target for a display of religious zeal on the part of the state; it equally pertains to the freedom to be a thinking and conscious Muslim. The banning of books and the recent yoga controversy epitomizes the status the Islamic administration has in this country and the detrimental impact this has had on the life of a Muslim. As An-Naim candidly observes, “As a Muslim. I need a secular state in order to live in accordance with the Shari’a out of my own genuine conviction and free choice, personally and in community with other Muslims, which is the only valid and legitimate way of being a Muslim.”

These trends are worrying, more so for their exploiting a tremendously weakened system that does not safeguard society as it is intended to. We must find the space that will allow each of us to be who we are in the way An-Naim suggests.

To do that, I believe that we do not have to look any further than the Constitution. The key elements of An-Naim’s model are provided for in this manner: it limits the administration of Islam to matters of personal law and in doing so mandates the neutrality of the public law system. It nonetheless allows for Islam to be developed fully through a separate system of personal law administration. The Constitution also guarantees the freedom of expression and association that allows entities such as PAS and ABIM to exert influence to the extent that they can, their views being counterbalanced by different views. These and other guarantees guarantee the free exercise of human agency.

If this system were permitted to achieve equilibrium as it once did, it would be possible to see a flourishing of Islam and the development of a truly just, compassionate and fair society for all. That is something one does not need the label of an Islamic state to attain.

MIS

A Nation In Progress

2008-12-30T16:03:00.003+08:00

A Nation In Progress

The year draws to an end.

A kaleidoscope, 2008 defies description. In the swirl of colours and sounds, chords were struck and themes developed. I imagine an orchestra tuning up, falling silent and then suddenly and majestically playing a symphony of divine beauty.

Each of us an instrument, our voices lent themselves this year to the harmonies that described and cumulatively defined us as a society and a nation. In the silence behind each echo, we felt whom it is that we could be if we wanted to: one nation, one people.

2008 was the year that transformed us. We found our voices.

We may have voted for one candidate or the other, or even for one party in preference to another. We may have regretted our choices or felt vindicated in the time since or even suffered bitter disappointment for expectations not having been fulfilled. Whatever the case, this year we reclaimed democracy and the right to choose.

It does not matter that since March this year we have seen more political bickering than we would have liked to on either side of the divide, and within the ranks on either side. Any vision that emerges from a true democracy is necessarily the product of the synthesis of varied perspectives and opinions. There never is just one side to things and the heated exchanges about key aspects of our lives is something that we should welcome rather than fear. It is only the truths that flow from this crucible that are sufficiently strong to forge the foundations of a lasting civilisation.

Equally, it does not matter that the governments of the federation or the states made decisions that we would have preferred them not to. It does not matter that this politician or that one acted in a manner that we would have preferred him or her not to have. The reality is that for the first time in a very long time we have had these governments and those who form them behave with some regard to what it is we want; such is the power of the ballot box.

Enhanced opposition presence in parliament, the establishment of Pakatan Rakyat governments in five states and a courageous civil society have also allowed us to see all concerned as they really are, warts and all. We have come face to face with the fact that politicians are not very pretty to look at just as they have had to confront the fact that their fates do really lie in our hands.

And as each of us has come to feel more involved, our sense of belonging has heightened and with it our feeling of ownership. It is your Malaysia as much as it is my Malaysia and together, it is our Malaysia. With that awareness has come the understanding that each of us is responsible for what it is that we become. This has been accompanied by a nascent evolution of attitudes and orientation.

This is the breadth and depth of what it is we achieved this year. It has not been about reformasi but rather, transformasi.

The process is however just beginning and we must continue to be vigilant. As we offer thanks for what is that was bestowed upon us this year, let us not forget that there are those who do not want change. Race politics, with its attendant religious elements, and corruption also continue to threaten us. The latter has gravely undermined us through its insidious colonizing of the wider system and the political process. Its mark is evident in every aspect of our public system, so much so that we are now held to ransom by it.

As for race politics, despite it being self-evidently divisive it sadly continues to play out in the continued politicization of race and religion at great cost. Its destructive quality is seen most clearly in the distorting of legitimate efforts to find more effective methods of affirmative action as attempts to undermine the special status of the Malays under the Constitution.

As we move forward, we must commit to taking it upon ourselves to ridding ourselves of these difficulties. It is not sufficient for us to pay lip service to ideals; we must focus and act decisively. We must develop a more rounded understanding of the sensitivities and fears involved as it only through this that we will be able to develop the necessary language to build bridges with.

The light of the new year illuminates the recently cleared footpath that may ultimately lead us to where it is we should be getting. Though the way is treacherous, our belief that we can be all that we want to be will guide us if we let it.

I believe we want it to.

(Malay Mail; 30th December 2008)

MIS

Happy New Year to all.

On Gaza

2008-12-30T15:55:00.003+08:00

Like many others, I am outraged at the acts of aggression being committed by Israel in the name of national security. Nothing justifies violence of the nature we are reading about, the killing of innocent non-combatants cannot be justified as collateral damage.

I am not in any position to write on Gaza in a way that would do justice to the very nuanced subject. Emotions do not always guide us in the right direction. I have however been following John Hilley's commentary on the subject. Perhaps you would like to as well (start here and go to related posts).

MIS

Through The Looking Glass

2008-12-23T11:08:00.005+08:00

Through The Looking Glass

Living in Malaysia, one gets used to the farcical and ludicrous. Daily encounters in the media with those who claim to lead us have made many of us resign ourselves to the fact that life here in Bolehland (to borrow the delightful moniker from Martin Jalleh) is very much an acid-trip down a rabbit hole. So much so that one cannot help but wonder whether Lewis Carroll would have been bestowed a title had he wandered onto our shores; “Tan Sri” perhaps, considering how keenly he was able to visualize the Malaysia that would be.

This year, the award for most so would have to go to the Royal Malaysian Police. It outgunned all other candidates with its “Save The Children” themed efforts this past month. That and the “we detained her under the ISA to protect her” gambit in September, formulated with some assistance from the Home Minister, sealed it for me.

One has to acknowledge the sheer gumption of those who made the decisions to go with those justifications despite the obvious disparagement they would result in. Or could it be that we have misunderstood what was really a display of compassion, laughter being the best medicine for the many aches and pains we suffer from. Whatever the case, hats off to the men in blue for having out-farced all others, not an easy task looking at the range of candidates in this year of “Zero Opposition”.

Lest it be said that I am being cruel and cynical, allow me to say that I am not. I am in truth at a total loss as to how to comprehend why the force continues to position itself in the way it does when there is no need to. How the scenarios that have presented themselves this year - from journalistic expression to candle-light vigils of solidarity to road-shows aimed at promoting a fair, just and compassionate society, to name a few – could be perceived as being threatening of public order is mystifying.

I wrote an open letter in this column some time ago. In it I expressed the view that the force is not intended to police thought, the point being made in light of the way public assemblies were being regulated. It seemed to me then that senior police officers were taking the view that assemblies were not threats to public order if they were supportive of governmental positions. They however were seemingly such if they expressed viewpoints that could be perceived as being critical of the government.

Events since the letter was published, in particular the posturing over the blatant intimidation of those involved in the commendable JERIT campaign for transformation, have gone far to convince me that my surmise was in fact true. There is no other way to explain the inconsistency on the part of the force.

Which brings me to my point; the force needs to remind itself that we are allowed to think in Malaysia. The Constitution guarantees this, just as it allows us to express our thoughts and does not in any way limit us to saying things that are supportive of the government of the day. In fact, Malaysians can say what they want; if they however breach a law in saying what they do, they can be punished. That is why there is no law that prohibits speech; those laws only criminalize certain types of statements. There is as such clearly no basis for preempting expression.

This however begs the question of why the force is taking it upon itself to police thought in the way it does. Allowing access only to viewpoints that are supportive of leadership, and the half-truths this allows for, is propaganda. Is the system so far gone that the force has become a moving part in the propaganda machine of the State?

I would like to think not. The Royal Malaysian Police plays an invaluable role in the protection and promotion of democracy, in part through the fair and impartial enforcing of public order and security where this is necessary. For it to be able to fulfill its role, public confidence in the institution is essential. Sadly, justifications like those that we have been offered for unjustifiable and repressive action does not assist in this cause.

The truth is that police officers have more important things to concern themselves with than advancing petty political interests. Their jobs are difficult as it is and chasing activists, whether on bicycles or not, seems to be an unnecessary diversion of resources that are already stretched as taut as a drum skin.

Public assemblies really need little or no regulation. Malaysians have shown themselves to be capable of gathering and expressing their views peacefully and without rioting. The ceramah-ceramah that took place in the run up to March 8th and the various peaceful assemblies that have taken place since then, whether supportive of the government or pro-transformation, prove this.

And if the concern is not so much about those participating in the assemblies but rather instigators or agitators that might turn a situation ugly, then the force should be looking out for those disrupters of democracy rather than clamping down on democracy itself.

That is after all how it is supposed to be on this side of the looking glass.

(Malay Mail; 23rd December 2008)

MIS

The Gridlock

2008-12-16T14:30:00.003+08:00

The Gridlock

Last Thursday evening, there was a horrendous gridlock in the city. The public holiday in Selangor and the rain had resulted in the usual mass of snarling and resentful drivers. There were no police officers to be seen in the Jalan Raja Chulan area and drivers were taking full advantage of this. They beat lights, cut lanes and forced their way forward to gain that extra inch that would take them closer to some perceived nirvana at the expense of the marginally smoother traffic an uncluttered yellow-boxed area of road would allow for.

Stuck in the mess, on the way to an appointment in the city, I had ample time to observe what was going on and to wonder why it is that those of who were on the road were seemingly incapable of spontaneously organizing ourselves in a way that would allow us to steer our way through the morass, albeit slowly. Wedged at a junction, it struck me that all it would have taken was for drivers on either side of the road to allow two cars to pass through either way at a time. But then it was not to be as someone had attempted to make a u-turn where traffic had made it impossible to do so, and stuck mid-maneuver he had now blocked the passageway.

We inched forward that evening, literally, and I ultimately left my car to walk to my destination. As I did, I noticed cars jumping lanes and rushing headlong on the wrong-side of the road. At one stage, I heard a collision and soon came across angry men shouting at each other. Confronted by a lorry being driven on the correct side of the road, one of these jumpers had tried to cut in and collided with a car. The man whose car he had run into was screaming at him for not having waited in line. Remorseless, the jumper was screaming right back, accusing the other of not having had the consideration to allow him in when confronted by the lorry. All round, drivers were blaring their horns.

Walking on, I mused over why it was that those who jumped lane had done so. It was something I, and it would seem quite a few others judging by the number of drivers who had remained in their lane, would not have done. Speaking for myself, it was not that I feared being caught breaking road-traffic regulations, there were no policemen present after all, but rather that I respected the order that the law, its purpose and inherent respect for others represented. Judging by the events that were occurring before my eyes, there was clearly a very practical dimension to the regulation against driving on the wrong side of the road. Why then did the jumpers feel differently?

On-foot and free amidst the chaos, I suddenly had an insight: there are a great many of us who have lost respect for order simply because we think that there is always a way to get around the consequences of our actions. There are many in the situation of the jumpers who will attempt to bribe a policeman when caught, encouraged by the perception that the policeman concerned will in all probability receive a reasonable bribe of a relatively small amount. Armed with this awareness, the way is open for almost anything and everything.

This is not just about traffic offences; the scenario plays itself out in other situations as well. Corruption is so endemic that it has for all purposes and intents become a way of life, skewing our value systems as it has done so. Considering all that happens around us on a day-to-day basis, I shudder to think what it is that our core values as a society are.

We are also not impervious to the examples set out by those who profess to lead us and it would be self-deluding to think otherwise. When they conduct themselves in a manner that suggests that they are above the law, be it through intimidation or abuses of power, then the average Malaysian will follow suit. For if the system can be made to support that kind of conduct on the part of the former then there is no reason why it should not be the same for the latter.

The harsh reality is that as a consequence our moral compasses no longer point true.

The gridlock in the city last Thursday evening could be, for all purposes and intents, a metaphor for the state of Malaysia. We no longer run in sequence, we see no value in doing so. We instead run our own courses in any way we think best for our own personal interests without any regard to wider Malaysia. Insular, self-interested action has become the order of the day with devastating consequences.

For those who would believe that in taking advantage of the situation,they are doing no more than adapting, the implications of their actions should be kept in mind. These will have deeply entrenched consequences, as we are already seeing. We are a nation that is slowly and surely descending into the lawlessness that contempt for the law entails.

The future that portends is not just about traffic jams and road rage.

(Malay Mail; 16th December 2008)

MIS

Defining Ideals: The JAC Bill

2008-12-14T12:12:00.002+08:00

The tabling of the Judicial Appointments Commission Bill 2008 in Parliament is a momentous event for what it implies.

For far too long, civil society’s concerns about the state of the Judiciary had gone unaddressed by the Government. It seemed that that the acknowledgments this would require, and their implications, were too problematic for the Barisan Nasional to generate the political will this would require.

Consequently, rather than deal with the situation Malaysians were emphatically told instead that all was fine. In this, warnings from various quarters and mounting indications that the institution was in a tailspin went unheeded. The nature and extent of injury this has caused to the institution and our system of law is something that we may never fully recover from without radical steps.

The value of the Bill is chiefly in what it allows Malaysians to do: to move forward and to start looking at solutions.

Though the rhetoric from the Government since March 8th has been welcome, there had been neither tangible acknowledgment of the need for reform nor any concrete indications that steps were going to be taken. The tabling of the Bill has however changed that and we are now on far firmer ground to do what needs to be done. In the same vein, it is also noteworthy that in promoting the establishment of an appointments commission, the Government has also conceded that the way in which judges had been appointed in the past had compromised the independence of the Judiciary.

The utility of the Bill must however be measured against its declared objectives. That the genesis of the Bill lies in the unfortunate events underlying the Lingam Video Enquiry cannot be ignored. These centered largely on the perceived absolute discretion of the Prime Minister to unilaterally determine the appointment and promotion of judges. I say perceived because there had been a time when the constitutional provision concerned had been understood to mean that the Prime Minister would defer to the choices of the leaders of the Judiciary whose advice would have been shaped through consultation with the leaders of the Bar. In this way, care had been taken to ensure that one person did not shape the Judiciary, even if that person was the Prime Minister. As the evidence that came to light during the Lingam Video Enquiry however showed, this had become the case over time.

In this context, for the proposed law to be effective it must substantially minimize, if not wholly extinguish, the risk of this reoccurring. In doing so, one would reasonably expect the Prime Minister’s role to be circumscribed in such a way so as to impede autocratic decision making on his part.

Regrettably, the Bill does not achieve this and instead goes a long way to preserve the absolute discretion of the Prime Minister. It does this in several ways. Firstly, it is not clearly stated that the Prime Minister can only recommend for appointment those persons whose names have been put forward by the proposed JAC. This suggests that the Prime Minister is not bound to do so and can make his own recommendations.

Secondly, the composition of the proposed JAC is worrying for not only involving the leaders of the Judiciary who, as experience has shown us, are not entirely immune from being beholden to their appointing authority, but also a Federal Court justice who might suffer from the same sense of obligation as his or her peers. Four other individuals who are appointed and can be removed at the sole discretion of the Prime Minister complete the JAC. It is evident that this scheme will not inspire much confidence, given our history.

There are other aspects that are equally indicative of a concentration of power in the Prime Minister over the make-up and functions of the proposed JAC. This is worrying for they collectively undermine the stated aim of the exercise for promoting rather than minimizing the role of the Prime Minister. The scheme of the Bill is not easily reconciled with the independence that the proposed JAC would require in order to function effectively.

There are some laudable aspects of the Bill. These include the creation of a duty on the Prime Minister to promote and protect the independence of the Judiciary as well as the characterization of potential conflicts of interests on the part of members of the proposed JAC. These are however of no real value if the core of the Bill is not crystallized correctly.

As other more notable personalities have expressed, all indications point to a need for more comprehensive study and extensive debate. In attempting to give meaning to the independence of the Judiciary, a cornerstone of our system, we are defining an ideal. This is a process that allows for no compromises.

(This comment was written for The Malaysian Insider where it was published under the caption "In current form, JAC falls short of inspiring confidence")

MIS

Shaping Policy

2008-12-11T12:41:00.004+08:00

I have said elsewhere that decisions of the Federal Court do not only determine the issues in the particular case the court decides on. Being the apex court and empowered to only hear appeals that involve questions of novelty or public importance, decisions of the court in many ways define the policy of the law. These decisions set precedents and are binding on all other courts.

In an ideal context – in which decisions are made impartially, correctly and with regard to all relevant considerations – this is a good thing. Decisions of the apex court would guide the administration of the law so as to ensure uniformity of decision making by the High Court and the Court of Appeal. This would allow for certainty in the law, a vital feature of a functioning system of law.

It follows then that in less than ideal situations, where decisions are made incorrectly or by reference to considerations that are not relevant to the issues being adjudicated, decisions of the apex court become problematic for setting bad precedents. As a lawyer, I have seen how judges struggle with getting around these bad decisions in attempting to do justice.

These less than ideal decisions are particularly problematic where they involve matters of governance, either at the level of government or lower down the chain of administration. Decisions of the apex court here would not only define the policy of the law, they would also shape administrative policy. In most cases involving the government or other administrative bodies, it is more usual that these entities would have been sued for alleged wrongdoing. By upholding or dismissing claims, the apex court would be setting down parameters and sending signals, one way or the other, to these entities.

Put another way, bad or shortsighted decision-making could, and most probably would, result in bad administrative policy.

It is my respectful view that the decision of the Federal Court in the Highland Towers case (MPAJ v Steven Phoa [2006]) is a problematic decision for having immunized the State Government and local authorities from liability. It must be recalled that in its said decision, the Federal Court found that the MPAJ was not liable for its negligent acts or omissions for being protected under the Street, Drainage and Building Act (s.95(2)). In so concluding, the Federal Court had effectively told the MPAJ, and other administrative bodies protected under that provision or provisions similar to it, that they could act with impunity. One can only imagine how this has shaped attitudes of local councils throughout the nation.

There are two ways that the decision could be considered. The first is supportive of the decision for the court having applied the law as written. After all, the section does provide “…shall not be subject to any action, claim, liability or demand whatsoever…” and courts cannot rewrite the law.

The second is not supportive. Though the Court is obliged to apply the law, it is nonetheless obliged to apply it purposively with due regard to the intention of legislature. It cannot have been the intention of legislature to immunize all actions or inactions. The provision was obviously aimed at protecting the parties identified for acting (or not acting) within the scope of what could be reasonably expected of such parties, seen in the phrase “..in accordance with the Act..”. There are situations, such as where the parties have acted in bad faith or in a manner not countenanced by the law, that legislature could not reasonably have intended to give immunity for.

I favour the second view not because my sense of social justice is appeased by it but because that view is more consistent with the guarantee of access to justice and equality before the law under the Constitution. These are features of the core of the Rule of Law; no person is above the law. This approach is also consistent with jurisprudence across the common law world on the subject. Significantly, the Court of Appeal in the Highland Towers case took the view that the MPAJ was not immunized from liability.

There are very real and practical implications of the decision of the Federal Court. Consider its impact on the state of affairs in Bukit Antarabanga. Going by the said decision, individuals who have lost everything have no recourse even if it could be shown that the local council acted with complete disregard to their interests. That cannot be right.

The decision in Highland Towers appeared to have triggered the start of a trend of protectionist decision making on the part of the court. In October this year, the apex court held in Government of Malaysia & 3 Others v Lay Kee Tee & 183 Others that such provisions rendered parties concerned immune from suit as a consequence of which such claims could be struck out without going to trial. The claimants there were denied their day in court unlike the claimants in Highland Towers.

The court in Lay Kee Tee raised another barrier to claims against governments by laying down a pre-condition to actions against governments (State or Federal) as follows: if one wants to sue the government for wrongs done by an agent of the government, then one must not only identify the agent, one must also make the agent a party (or defendant) to the action failing which the claim is struck off without going to trial. The court came to this conclusion through an interpretation of the relevant legislative provisions (Government Proceedings Act) that runs counter to established practice through the years both in the country and elsewhere in the common law world.

One sues the government for what is called vicarious liability. The Government not being a person, it cannot act other than through its agents. In law, where an agent is negligent, his principal is vicariously liable. There has never been any need to sue the agent in order to make the principal liable. One had merely to establish the wrongdoing of the agent to make the Government liable.

All that changed with the decision in Lay Kee Tee, which drastically altered the ground rules. Consider a situation like that in a pending action against the police and the government for inaction on the part of the police during the Kampung Medan riots. The claimant there claims that police officers stood by while he was being attacked. He now has to identify the police officers he says did not take steps and make them parties. How he does that is anyone’s guess especially since the police force is not about the volunteer the identities of those involved (this is fair considering that the burden of proof is on the claimant). Suing the government has always been difficult; it has become virtually impossible.

These decisions and others that have been too accommodating of unfettered discretion on the part of the authorities are worrying as they signal an unduly narrow view of fundamental liberties. They also indicate a misapprehension on the part of the Judiciary as to its role. The institution is not intended to blindly apply the law; it must infuse the law with those elements that mark this nation as a democracy founded on the Rule of Law.

Citizens must be allowed to seek redress for wrongs done to them by the State or its agencies; their right to do so cannot be rendered illusory. As emphasized above, this is not just a matter of one person’s wrongs being addressed and compensation. The decisions handed down have shaped policy and attitudes, and will continued to do so. If public officers are allowed to feel that they are beyond the reach of the law as they have been, they will act as they please and not necessarily in the way they are expected.

The Federal Court must appreciate more fully that its decisions are not handed down in vacuum. They shape society, sometimes drastically.

MIS

Forcing Accountability

2008-12-10T09:44:00.003+08:00

The reoccurrence of landslides in Ulu Klang, Ampang, capped by the tragedy of Bukit Antarabangsa, is a compelling reason for the reintroduction of local government elections.

Amidst all the finger-pointing, justifying and spin-doctoring, one thing remains clear: that something is very wrong with the way the overseeing of hillside developments in that area, perhaps even other areas, is being managed. If it were otherwise, we would have not been seeing the scenarios we have since 1993 when Block 1, Highland Towers toppled.

Let me expand on why I have assigned blame in the way I have. Let us assume for a moment that the landslides are exclusively caused by soil-conditions, as some might have us believe. If that is the case then one must assume that the area is unsafe for occupation. That begs the question of why is it that housing estates were permitted to be developed in the area and people allowed to take up occupation there.

If, on the other hand, it is not just about soil-conditions but about the way in which housing estates are to be developed, then that points to a human factor and raises the question in turn of what is it that was done wrongly. Was it the case that policies were inadequate to address the situation or that translation of those policies into action was lacking? Or was it that poor judgment calls were made or even insufficient consideration given to compelling factors?

One would have thought that the enquiry conducted after the Highland Towers incident would have shed sufficient light on the matter to put things into focus and the numerous landslides since help keep them in focus. Apparently not, judging by claims of some residents of Bukit Antarabangsa that their complaints had gone unheeded, echoing assertions made by those who had suffered before.

The situation is made more complex by ambiguity. It cannot be said that all that needs to be know is known, except perhaps by a small group of persons who may not feel the need to make the full and frank disclosure required for a firmer understanding of what happened and what needs to be done. This is not surprising as it mirrors the way in which much of the public system is administered.

Put another way, there is shocking lack of transparency and accountability in the public system. a state of affairs possibly encouraged by recent short-sighted decisions of the Federal Court virtually immunizing governments and local councils from liability. This opaqueness not only keeps us blind to what needs to be seen, perhaps those who chose to live in Bukit Antarabangsa would not have done so if they had been adequately warned of the risks, but also what we need to do.

Which takes me to my point. Accountability and transparency needs to be forced on the system and a surefire method of doing this is by making administrators accountable through elections.
If the Pakatan Rakyat needs a reason to crank up its efforts to deliver on the election promise it made to reintroduce local council elections, here it is.

MIS

Respecting Change

2008-12-09T17:59:00.006+08:00

Respecting Change

A friend of mine told me recently that he was considering home-schooling his two sons. A battle with the private international school where his sons are enrolled and fruitless encounters with Ministry officials who were either incapable of seeing his point of view or could not empathise nor appreciate his lack of options had brought him to that point. It could be that to many a civil servant, private schooling is an elitist luxury that one purchases at the expense of its ills and pains. If so, this overlooks the reality that for many in this country private schooling is not about snob appeal but rather a necessity in an increasingly competitive world.

Many a parent is caught in a conflict between wanting to avail themselves of public services, be they education, medical or otherwise, on the one hand, and doing the right thing for those they love on the other. They, like many others here in Malaysia, have been forced into these positions of conflict by a public system that has been increasingly undermined by political and vested interests despite the obvious consequences.

It is evident that for a nation to progress sustainably into the future, the pillars of the nation must be protected and continuously strengthened. Of these, much has been said of the Judiciary and the Legislature. We should however not underrate the significance of the civil service. It is crucial for being the engine that impels the nation in the direction it should. Civil servants serving in a diverse range of capacities from teachers, administrators, lawyers, doctors, engineers, surveyors, geologists and so on provide invaluable input and service. They reach far into this nation’s heart, its people, and provide the nurturing and guidance that keeps it safe and beating.

Civil servants oversee every aspect of the system from schools to hospitals to hill developments. It is therefore crucial that those who take on the responsibility of administration be suitably qualified for their jobs. This is both a matter of competence and integrity. There is no excuse for not having the best possible persons for such positions, be they teachers or director generals of Ministries.

Even a cursory glance at modern Malaysia would show that this is sadly not the case. If it were otherwise, we would not be stuck in the rut that we are. The nation lacks sparkle, energy and drive. Hamster like, we run on the spot in our wheels of misfortune as the system, such as it is, wears itself down at the expense of the future we could have. Can we really say that we have the best people for the job in the various ministries, departments and agencies that we rely on to make sure this country runs at the optimum level in all respects? I think not.

It seems that the only employer that does not complain about poor levels of competence, at least publicly, is the government. This is understandable. The civil service has always been potentially useful as an employment bank, a direct means of furthering agendas, for control and, for all these reasons, winning votes. Somewhere along the way, that potential was harnessed, and welfare and privilege elements exploited to justify abuse.

The notion that employment in the civil service is an aspect of welfare or privilege is self-serving and dangerous. The civil service is so inextricably linked with our future, giving meaning to the adage “we reap what we sow”. This is not just about the alarming number of unemployable local graduates and school leavers, as worrying as that is, it is also about bad decision making with sometimes catastrophic results, tangible and intangible, and other equally significant aspects.

Things are definitely not as they should be in this nation. We are slipping far behind as we drown in a dizzying cocktail of lackadaisical attitudes, a total lack of imagination, mind-numbing incompetence and corruption. Mediocrity has become our standard. And though we rush to justify and distract from failings, be it for having allowed our tertiary institutions to slip into the “not worth bothering” section of the rankings or the increase in corruption, this is not addressing the problems.

Change became a catchword this year with even UMNO elites claiming it for their banner. If we are sincere about transforming Malaysia, the alarming state of the civil service must be addressed.

For this, ground-rules must be set and respected. Politicians must learn to respect the intent underlying civil service regulations that restrict political involvement: civil servants must be left alone to do what needs to be done. They do not serve political parties; they serve the government of the day. Additionally, key sectors of the civil service must be made impermeable to appointments based on race quotas and be defined only by appointments based on of high levels of competence and integrity.

Above all, politicians must learn to respect the civil service for the fundamental role it plays in nation building. Change is in its hands.

(Malay Mail; 9th December 2008)

MIS

What Is The Pakatan Doing?

2008-12-02T09:38:00.003+08:00

(Update, 6:48 pm: Anwar Ibrahim has apparently denied that an offer was made to Arif Shah. See here)

I am travelling today for a symposium overseas and had much to do and deal with before I left. Time constraints prevented me from writing an opinion piece for Disquiet in print. My apologies.

If I had had the time, I would have written on what I think and how I feel about the Pakatan Rakyat, more particularly PKR, offering a Deputy Chief Minister’s position to Datuk Arif Shah Omar Shah (if reports are true).

I do not think this is the kind of example that the Pakatan wants to set and I am wondering how it is that those who lead the coalition could have even thought of making such an offer (if true). There has already been intense debate about whether cross-overs should be accepted as a point of principle, with the DAP having been very clear about its disagreement. Accepting a cross-over and offering him a plum position in the administration is something that far more extreme.

There are several ways this can be looked at. What does Arif Shah offer that so many of those who have struggled for so long in the pursuit of change-for-the-better cannot? His UMNO credentials? His network of UMNO supporters? The insult his defection would amount to?

Even if the defection of UMNO were to be the result of his defection, and I do not necessarily think that would be the case, is that worth the message it sends out about the Pakatan: that the Pakatan is a coalition that is prepared to pay whatever it takes to get where it wants to. Because if a deal has in fact been struck with Arif Shah, that is what the Pakatan is doing.

And it would seem that that is what the Pakatan has become.

What happened to the adherence to principle that underlay the Pakatan’s election campaign? Has the value of principle lessened since? Have we forgotten the kind of campaign that Arif Shah was associated with in Permatang Pauh, the obscenities, the racial slurs and incitement, the entire circus? Are we overlooking the fact that Arif Shah wants to leave UMNO for the way his has been treated (according to media reports) rather than for his rejection of UMNO’s ideology?

And above all, has Anwar Ibrahim forgotten what it is that motivated the rakyat on March 8th? It was not blind ambition, it was the pursuit of a better Malaysia.

How Arif Shah becoming a Deputy Chief Minister of Penang takes us closer to that objective is something beyond my comprehension. Even if it leads to the taking of Federal Government, I am certain that must have something to do with the offer, I question whether a Federal Government achieved on the back of personal interests is a government I want.

MIS

Striking A Pose

2008-11-25T08:14:00.007+08:00

Striking A Pose (Of Crime And Punishment)

THE recent ruling by the National Fatwa Council on yoga has resulted in a range of responses, from dismay to unqualified and devoted acceptance. I must admit to bewilderment in part because of all the pressing issues that confront Muslims in this country, many of which directly pertain to matters of social justice, yoga was one of the least expected amongst those that demanded urgency. It would have been useful for the Council to have directed its mind and resources to matters of faith that complement efforts aimed at the nurturing of an inclusive, just and compassionate society.

That being said, a ruling has been made. I say ruling because until and unless the ruling is endorsed by the fatwa committees of the various states and the Federal Territories and then gazetted (published in the official government journal), the ruling is not a fatwa.

The administration of Islam is a matter that falls within the exclusive purview of the state under the Federal Constitution and, as such, where fatwas are concerned within the sole domain of the state fatwa committee. In this context the National Fatwa Council allows for policy consultation at a federal level to facilitate a more unified vision of the practice of Islam, each state being legally entitled to pursue its own vision.

Within the state, it is for the Majlis Agama to take steps to gazette a ruling of the state fatwa committee. The resultant fatwa is prescribed by the respective state law as being binding on all Muslims as a dictate of Islam. They are duty bound to abide by and uphold the fatwa unless permitted by Islamic law to depart from it in matters of personal observance, belief or opinion. The burden of establishing that an exemption is permissible is however on the individual as state Islamic criminal law provides that acting contrary to fatwa is a criminal offence.

It is significant that despite a fatwa being for all purposes and intents a ‘law’ the breach of which is punishable, there is no need for rulings to be referred to the State Legislative Assembly before they are gazetted and become binding as fatwa. Seen in this light, it could be said that the Majlis Agama and the fatwa committee are therefore legislating.

The pressing question arises as to how this can be sanctioned in view of our Constitution having put in place a system of law-making centred on legislatures constituted by duly elected representatives. The making of binding fatwa in the manner provided for is a glaring anomaly from the dictates of the democratic processes enshrined in the Federal Constitution.

It is this very concern that drove a team of us to taking up two challenges in the Federal Court involving persons allegedly having been involved in deviationist Islam not too long ago. Amongst other things, our clients had been charged with acting contrary to fatwa; charges that for the reasons explained above took us to heart of law making.

In its decision earlier this year, the Federal Court disagreed with us and upheld the validity of the fatwa making process. With respect, in so concluding, the Federal Court in effect allowed for a subverting of Parliament, and the accountability the institution is intended to promote, in this extremely crucial aspect of the constitutional framework by giving licence to the religious bureaucracy to autonomously fashion a parallel system of law outside the established legislative structure and the supervision it envisages. I clarify here that I do not intend to cast aspersions on the qualifications, character or aims of the members of the respective majlis-majlis and fatwa committees. The implications of the decision of the Federal Court are however not easily reconciled with the very purpose of legislative power being constitutionally entrenched in the legislature, and the value of this entrenching to wider society.

The rakyat elected representatives to the legislature to ensure that our respective views were presented and taken into consideration as well as to allow us to have oversight over the processes that ultimately shape our lives. Our representatives should be making law as well as overseeing its making.

Legislature cannot be permitted to delegate its essential legislative function in any field, even to a well-intentioned specialist committee. This is not just about Islam; it is equally about all the other fields that specialist committees might be created for in the same way.

The limited numbers of a committee cannot compare to the full weight of the august houses of Parliament. That some of those in parliament may be of questionable competence, some might say sanity, is of no relevance as it is the underlying principle that is in issue. Allowing for a divesting of legislative power and control is most certainly a state of affairs that will wholly undermine democracy and true nation building.

Consider it from a different perspective. Would a State Legislative Assembly have enacted the offence of practicing yoga? I have my doubts, not least for the heated debates that the tabling of a bill to create the offence would have resulted in. If this were the case, then how is it that the system allows for the criminalising of yoga by the ruling of a committee and the mere gazetting of that ruling?

On the other hand, if a state fatwa committee were to produce an expert opinion that was then made the basis of a bill tabled in legislature, would it not be conceivable that with logic and reason, the bill would be carried? More work might have to be done, as explanations would have to be made that much clearer and factual basis of concerns set out coherently. However, considering that laws are being made, these are necessary prerequisites in any event for such grave efforts.

In the meanwhile I wait with bated breath for the next fatwa. Who knows, it may be about corruption.

(Malay Mail; 25th November 2008)

MIS

Subsequent to this article being submitted for publication yesterday, the Perak State Religious Department has acknowledged that it is necessary for His Highness the Sultan of Perak and the state Fatwa Committee to consider the matter before the policy can be implemented in the state of Perak. The Sultan of Selangor has also indicated reservations (see here). The gazetting of a fatwa requires the assent of the Sultan.

Policing The Constitution

2008-11-18T10:42:00.003+08:00

Policing The Constitution

(An Open Letter To The Inspector General of Police)

Dear IGP,

Let me firstly acknowledge that yours is not an easy responsibility to bear. The task of policing is certainly a difficult one. It calls for the fine balancing of the many different interests and expectations that will allow for security without undue compromise of the freedoms that mark this nation as a democracy. Far too often, the choices that have to be made are those that will be remembered more for their being unpopular than their having been effective.

As a lawyer, it strikes me that there is a way to make navigating these difficult waters easier, if only slightly. The power to police stems as it does from law enacted for that purpose. The Police Act and the Criminal Procedure Code are not only the maps by which you chart your course, they are also the justification you offer for actions that might be viewed as unfair. After all, the Royal Malaysian Police does not legislate; it merely enforces the will of the legislature as codified into the statute books.

This approach could also extend to areas where the law vests police officers with a discretion the exercise of which is a matter than can only be determined by reference to the particular circumstances of a given situation. Though in these cases the particular legal provision in issue may be silent as to how it is a police officer is to act, it should not be overlooked that the Constitution is the supreme law of the land. In enumerating the fundamental liberties of citizens, it has provided the context and limits of enforcement. Seen in this light, it become evident that the primary role of the police force is to ensure that the constitutional framework is maintained as it was at all times intended to be: one that guarantees the freedom for Malaysians to aspire to be all that they are without fear of reprisal.

It is from this perspective that I question the wisdom of your policy on the matter of public assemblies.

I acknowledge that the legislature has by virtue of the Police Act imposed the requirement of permits for gatherings in public places on pain of sanction. I note however that the police force has taken it upon itself to exclude certain types of gatherings from the requirements of the Police Act. This seizing of discretion, for it could be said that the statute allows for no such discretion, is understandable for were it to be otherwise we would see many a family arrested for picnicking in public parks. By any definition they would constitute the assembly of three or more persons in a public place the Police Act targets.

This however makes the point that it is not necessarily the case that all gatherings in public places without permits are unlawful assemblies; it is only those that the police force deems such that are. Experience shows that this has however been markedly selective.

Compare, for instance, the experience of protestors outside the Bar Council and UITM students demonstrating against the admission of non-Malays this August with the treatment of participants in the anti-ISA vigil held earlier this month. While the third event had dispersed, spontaneous peaceful gatherings of small groups of citizens were acted against with force and culminated in numerous arrests. Though the earlier two events were by any comparison that much more aggressive, no action was taken despite the protest outside the Bar Council having disrupted a closed-door event.

Circumstance suggests that your officers believe there to be basis for their action and for treating events differently from one another. Objective scrutiny point to that basis being an apparently misguided notion as to what it is that constitutes a threat to public order. It appears that the third event, and others like it, was perceived as being disruptive of public order not so much for the event itself but rather the anti-ISA message it sought to convey. It seems that this was considered to be dangerous for its seemingly anti-establishment sentiment, a conclusion reinforced by conditions imposed by the police for a similar event held last Sunday. These included prohibitions on the lighting of candles, the wearing of anti-ISA t-shirts and the making of any statements supportive of the release of detainees.

In contrast, the first two events did not convey any such sentiment.

If this is in fact the case, that policy needs to be reexamined. The approach it entails is grossly unfair. It also exposes the police force to attack and criticism in a manner that is unnecessarily undermining of respect for the institution at a time when more needs to be done to shore up public confidence

It is not for the Royal Malaysian Police to police thought and speech through preemptive enforcement; that is not its fight. Malaysians are guaranteed the freedom of thought in as much as they are guaranteed the right to express themselves, either alone or in peaceable assembly with others. The nature of views expressed is not a matter for the police force to concern itself with; ensuring that Malaysians are free to avail themselves of the guarantees afforded to them under the Constitution to live out democracy as it was intended is.

Malik Imtiaz Sarwar

(Malay Mail; 18th November 2008)

MIS

Keeping The Faith

2008-11-11T16:01:00.003+08:00

Keeping The Faith

Over the weekend, the blogosphere was filled to the brim with posts and comments concerning Justice Syed Ahmad Helmy’s decision to release Raja Petra.

Many expressed surprise at the Judge having had the fortitude to rule as he did, going against the grain not being the easiest of options. Some were unfeelingly dismissive of the decision and its significance to Petra and his family, and to society as a whole. One of the theories advanced was that the decision to release Petra was engineered by Prime Minister Abdullah Badawi as part of a campaign of political maneuvering against Deputy Prime Minister Najib Razak. Others cynically suggested that it was typical of the lawyers involved, myself included, to have made self-servingly positive statements concerning the Judge and the decision as we had won the case.

These comments made me wonder. Have we really been so thoroughly wrung that all hope and optimism have been bled from us? Are we so broken that we are incapable of appreciating the tiny and not so tiny miracles that happen in our lives every day?

Last Friday, as the first sob of joy escaped captivity in a courtroom that had been stilled by uncertainty, as the first tears of redemption rolled down cheeks that had been numbed by countless disappointments, I was reminded again that it is our collective faith in what is right that has consistently forged the way forward. As the cheers erupted from the many Malaysian throats present, and the Judge attempted to restore order, I understood that as our ties together as a community have strengthened so too has that faith. I saw, as Alice Walker pointed out recently to Barack Obama, it is we who we have been waiting for.

It does not matter what those who scoff say, justice was done last Friday.

No matter what we call it or how we dress it up, detention without trial is cruel. Stripped of everything, a human being has only his or her dignity and conscience. It is to these most fundamental of elements that the right to fair trial and the presumption of innocence speak. It is these elements that preventive detention aims to destroy. They are torn apart in the same way that the lives of those detained and their families are.

The due process of law ensures that the number of people who get shut away erroneously is small. A person charged with a crime in this country has at least two tiers of appeal. His conviction would have been scrutinized at least three times by several judges. A person detained without trial is detained with the stroke of a pen wielded by a Minister who is presumed to be objective enough to do what he needs to do in a way that ensures there is no possibility of error.

Where is justice? If the reasoning of the Minister is to be accepted, it does not enter the picture.

The Minister contends that detentions are a matter left by the law entirely to his subjective discretion. This means, he reasons, if he decides that an individual is a threat to national security, a court has no option but to accept this as a truth. This being the case, there is no need for the Minister’s conclusion to be justified. Extrapolating this analysis, the Minister is not required to argue that the justice of the case favours continued detention without trial. Justice is as such not a feature of the analysis and injustice an irrelevant consideration.

The Judge obviously felt otherwise. His observation, made in the course of his reasoning, that the law could not be understood as empowering the Minister to arbitrarily detain individuals for reasons that had nothing to do with the statute such as, for instance, simply having red hair, was illuminating.

Was his reasoning correct? I would like to think so. The Judge merely applied the law as framed by the legislature and in doing so gave expression to the intention of the drafters of the law: limiting preventive detention to the kind of exceptional “terror” situations described. The Federal Court may however take a different view, just as it may of the points of submission we made that the Judge disagreed with. We will get to argue these again if an appeal is lodged.

Was I happy that the Judge decided the way he did? I would have been foolish not to be, not least for Petra being reunited with his family. Do I think positively of this Judge? Most certainly for having shown me that it is not audacious for any of us to hope as we do. Would I have been disappointed if we lost? I would have but far less than if the Judge had not given us the excellent hearing he did. As we left court on the day we presented arguments, all of us understood that we had had the hearing that all of us wanted: a fair one.

And to those who suggest that the Judge was influenced, I say this. You do a disservice to yourself and to this nation. Had you been in court, you would have seen as we did a Judge keeping the faith.

(Malik Imtiaz Sarwar was counsel to Raja Petra Kamarudin. He is the current President of the National Human Rights Society and blogs at www.malikimtiaz.blogspot.com)

MIS

Free RPK: Habeas Granted

2008-11-07T12:09:00.003+08:00

We won.

Decision handed down today by Syed Helmy J. Habeas corpus granted, RPK to be released forthwith. He is to be produced before the Shah Alam High Court by 4 pm today to allow the Court to direct the release.

Credit to the Judge, who was fair and judicious in his approach (he disagreed with our argument that section 8 is unconstitutional), the team of lawyers who put their heart and soul into the hearing and our opponents, Tuan Wahab and Tuan Dusuki, who were professional in their outlook and approach.

MIS

Finding Equilibrium

2008-11-04T10:19:00.002+08:00

Finding Equilibrium

Zaid Ibrahim’s impassioned call for a rejection of race politics last Friday at the LawAsia conference is one that deserves its place in history. His plea for the restoration of democracy and the Rule of Law has reverberated throughout the nation.

This is not surprising. Zaid’s message is rooted in an obviously deep and heartfelt commitment to the nation and the interests of all its citizens. Where the Malays are concerned, he is strident in his rejection of policies that have left the community struggling against a siege mentality that robs it of its ability to meet the challenges of a globalizing world. As he observes, the “Malays are now a clear majority in numbers. The fear of their being out numbered is baseless; they are not under siege. The institutions of government are such that the Malays are effectively represented, and the there is no way the interest of the Malays can be taken away other than through their own weakness and folly.”

Equally forceful in his defence of non-Malay interest, Zaid laments attempts by politicians to do away with a social contract that guarantees “equality and the promise of the Rule of Law” in favour of one that promotes a supremacist ideology that ultimately serves only the interests of an elite. This, he opines, has left the nation deeply divided and cut off from the democracy and Rule of Law so vital for the sustainable and inclusive development that all Malaysians need, irrespective of race and religion.

Put another way, Zaid has given voice to what it is most Malaysians think: that we need to be united to face the future. The founders of this nation understood we could, appreciating that there was no reason for fear and that we had every reason for mutual respect and dignity. Fear mongering has however kept us apart and from seeing the threats that confront us, and what we need to do to counter them.

Zaid’s message is persuasive for its simplicity and self-evident truth. He must be credited for having been able to say what had to be said, as it needed to be said.

If there is any doubt as to the legitimacy of the viewpoint expressed, then we need only consider the reactions from senior UMNO members entrenched in the leadership structure of the party. These reactions not only make it evident that Zaid hit the nail on the head, they also show why it is UMNO and the Barisan Nasional need to seriously reconsider how to make themselves relevant. Two responses are illustrative.

Perlis UMNO liaison chief and former Menteri Besar Datuk Seri Shahidan Kassim had this to say, according to media reports, “Zaid should repent. Otherwise he should get out of the ‘rumpun Melayu’. Paraphrased by BERNAMA, his explanation for this was that “if Zaid continued to question the Malay supremacy concept, then he should no longer be a Malay as a Malay should be defending the Malays and not running them down.”

But, is that not what Zaid was doing? Apparently not, for the New Straits Times reported Home Minister, Datuk Seri Syed Hamid Albar, who is incidentally an UMNO supreme council member, as saying that Zaid was “a traitor to his own race and should apologise for his remarks.”

Both responses are so self-defeating that they boggle the mind. They typify the might is right attitude that Zaid speaks out against. Being senior UMNO members, both individuals must be open to the possibilities. As Zaid put it, if “affirmative action is truly benchmarked on the equitable sharing of wealth that is sustainable, then we must confront the truth and change our political paradigm; 40 years of discrimination and subsidy have not brought us closer.”

Zaid was not alone in expressing concerns about the way things are. At the same conference, His Royal Highness Raja Nazrin Shah, the Raja Muda of Perak, called for a rejection of discriminatory policies. The Raja Muda observed that the “consequence of not empowering citizens or, worse, disempowering them, is to create a deep sense of alienation and hostility. Indeed, it is very often an overwhelming sense of alienation and powerlessness that causes the rash acts of violence that fracture societies. It gives these citizens every reason to seek to divide society in order to redress their dissatisfactions. This is bad and insensitive politics. On another level, we cannot morally turn our backs on the fundamental responsibility of ensuring that all stakeholders in our society, no matter how small or seemingly insignificant, have a place under the sun.”

The ideal could not be better articulated. Malaysians, all of us, want our place in the sun. We do not wish to live in fear, looking over our shoulders all the time. There is more than enough for us all to share in. We have been blessed with a nation so abundant with resources and so rich with potential that generation upon generation will be able to live in peace and prosperity. The only catch, if it can be called that, is that we need to be left alone to find our equilibrium. Only then can we get on with the task of doing it right.

(Malay Mail; 4th November 2008)

MIS

Running Away

2008-10-28T14:29:00.003+08:00

Running Away

A few days ago, I was talking to a friend. A meandering dialogue, it was really an excuse for us to reconnect as friends do. And as these exchanges tend to, we drifted into matters of family. She spoke about her children, her brother, the usual assortment of fears and hopes, funny moments, painful ones. I reciprocated.

At some point I began to talk about my father. And as I progressed into my narrative, she suddenly remarked that it was as if I was describing someone very different from the person I had talked about a year and a half ago. I thought about it and understood that she was right. The person I had just been describing was a warm, humorous and slightly dotty academic who, in the recounting of his madcap adventures across the globe in search of his truths, came across as a less sexy version of Sean Connery in his role as Indiana Jones’ father. The father I had described the year before was a quiet, reserved man so removed from his context and so driven in his academic research that he was virtually impossible to relate to. So much so that I had at times wondered what it was that he was running away from.

It struck me then that my father had not changed. I wondered whether I had been romanticizing my account of my father. Writers tend to exaggeration in the name of art, they call it artistic licence, and I was really a closet writer who had stumbled into the practice of law. But then I reconsidered, if that were the case why had I not done that before and, if the truth were to be told, our relationship had always been disjointed. I saw that there had to be another reason.

The more I thought about it, the more I became convinced that I was the reason. I had changed, it seemed, and in as big a way that allowed black to have somehow become white. How that had happened, what had caused that shift in me, these were things I was less sure of.

Over the next few days, I kept on going back to that insight, twisting and turning it in my mind to look at it from different angles. I gnawed at it like a dog with a bone, trying to extract its essence. Slowly, my ruminations took me through the ebb and flow of the preceding year. Gradually, realization dawned.

At some point, I had accepted him; the good, the bad, everything. More crucially, I had accepted that I was his son and that without him, I would not have journeyed down that road that allowed me to become who I was and who I was becoming. My father may have been running, but I had been on my own long distance run. One that had instead of taking me towards where I wanted to get to had taken me away from it. I had stopped running. There was no reason to any longer; there had never been one.

And I saw then that we had to stop running away from who it is that we are.

For years we have fought off any idea of a real Malaysian identity, one in which we could just simply be Malaysian without having to underscore whether we were Malay, Chinese, Indian, Kadazan, Iban or anything else. We have done this not because we know that we cannot have such an identity but because we have preferred to believe in a fiction that had over the years been constructed on the foundation of pain, anguish and hopelessness that enforced separation from one another has caused us all.

It is in the interests of those who prefer to say that a Malaysian identity, a Bangsa Malaysia, is a myth, or that it can only be built around a national identity that prefers one aspect of our beautifully diverse lives, to perpetuate the reasons that keep us apart. The proof that what it is they say is the myth and that each and every one of us has a role in creating, nurturing and evolving our national identity, lies all around us. We just have to want to see it: the way we eat each other’s food and how that food has in a way become all our food, the way we celebrate each other’s festivals with as much gusto as we would ours as if they were our own, the mixed marriages and the children they have blessed this country with, the common dreams and ambitions, the aspirations of our young, our collective destiny.

What are these if not aspects of who it is we all are?

What makes us uniquely Malaysian is our difference and the way we embrace it as one community, warts and all. If we could begin to see that, then that day when we topple that foundation of illusions, and with it that edifice that has for far too long cast a gloom over us, will dawn.

My father is my father and I am his son. I am a Malaysian and I want to stop running.

(Malay Mail; 28th October 2008)

MIS

Free RPK: The 2nd Habeas Corpus Heard

2008-10-25T07:55:00.004+08:00

I am sorry for not having done this earlier. It has been a busy week.

As you would have already read, the hearing went on as scheduled before Justice Syed Helmy. on 22nd October 2008. The hearing went smoothly, with Justice Syed Helmy giving both sides a fair hearing. I do not think anyone in court, Marina and family included, who could have asked for more. We were given every opportunity to say what we needed to in the way we wanted to.

There were some administrative glitches that could have been exploited for benefit, but counsel for the government very graciously chose not to. With an accommodating Judge, we got over these minor humps very quickly and got straight to what needed to be done: the hearing itself.

Azhar Azizan Harun and I presented the case for RPK. Azhar (a.k.a. Art Harun of Navel Gazing) is an old friend and a well-regarded advocate. Though specializing in commercial and corporate law, he has always maintained an interest in public law. As soon as news got out that RPK had been detained, I got a call from him asking for news of developments. Once he knew that I was involved, he immediately volunteered to “carry bags” (some of you may have noticed the comment on my earlier RPK postings).

Ashok Kandiah and Neoh Hor Kee once again handled the solicitors’ aspect of the brief and, as before, from the time the detention order was issued did all that could humanly be done to get us as quickly and smoothly as possible to that hearing that morning. They, together with Amarjit Singh, J Chandra and Sreekant Pillay, helped put together the case that we presented that morning.

As I had noted in an earlier RPK posting, we were faced with one serious obstacle, judicial attitudes towards a provision in the Internal Security Act. The provision, section 8B, ousts the jurisdiction of the court to scrutinize acts done by the Minister in the exercise of discretion under the ISA except on procedural matters. There were decisions of the courts that suggested that this immunity from review applied to all cases.

If correct, then this meant that the scope of review was so narrow so as to be virtually meaningless. This would, for all purposes and intents, mean that one could not point to bad faith on the part of the Minister (acting outside the scope of his permitted powers) leaving the Minister to detain at whim. In my view this could not be correct, as this would allow for highly undesirable consequences, in particular the misuse of powers with impunity.

On this footing, Azhar and I split the arguments. I was to take the first attack.

The arguments were technical and I will not bog you down with detail. I can summarise my arguments as follows:

For reasons going to constitutional pre-conditions to legislating exceptional laws such as the ISA, and in particulars sections that allow for detention without trial, section 8 is unconstitutional;

Section 8B does not oust the jurisdiction of the court to consider whether the Minister was acting with jurisdiction or where the issuance of the order to detain was a nullity (void in law) for having been done without jurisdiction. As such, the court would have to consider whether the elements making up the state of affairs contemplated by the ISA – threat by a substantial body of persons that actions of the specified kind would be taken – were present at the time the detention order was issued as these were preliminaries to the existence of jurisdiction. Further, if it was contended that the Minister had acted mala fide (in bad faith), then the court was to consider this contention as this was an act not in accordance with the ISA itself (the law does not permit acts of such a nature) and as such not within the ambit of section 8B;

The Minister had acted without jurisdiction, as the preliminaries to the existence of his jurisdiction to detain did not exist. There was no threat by a substantial body of persons and RPK was had not acted nor was he threatening to act in any of the manners specified. The Minister had no jurisdiction. This contention was reinforced by the fact that the Islamic authorities had not seen it fit to charge RPK for insulting Islam. These authorities had exclusive domain over matters of administration of Islam and as such, the Minister could not have acted without fist having obtained authoritative confirmation from these authorities that RPK had insulted Islam;The grounds of his detention were incredible and as the Minister had explained himself through his grounds of detention, which were before the court, the court could not ignore this. Further, the Minister had not established that RPK published the writings on Malaysia Today or that RPK owned Malaysia Today;

The detention infringed RPK’s freedom to profess and practice Islam under Article 11. Though the Constitution permits the enacting of exceptional legislation that contravenes the right to life (Article 5), the right to a fair trial (Article 5), the right to free movement (Article 9) and the right to free expression, assembly and association (Article 10), it does not permit the contravening of the freedom of religion. RPK had stated in his affidavits that e write as a Muslim, guided by the Islamic principle of amar makruf nahi mungkar. As such, his writing was an expression of his faith and conscience;

Azhar then took the factual arguments on bad faith arguing that the Minister had acted for collateral purpose – to silence RPK for being a vocal critic of the Government of the day. He pointed to the pending criminal proceedings for sedition and criminal defamation and RPK' being innocent until proven guilty, and the fact that no action had been taken by RPK that could be said to constitute a threat to national security nor had he threatened to take any such action.

Counsel for the Minister argued, in essence, that the court was not permitted to scrutinize the decision to detain as this was a matter left entirely by law to the Minister, i.e. it was in his subjective discretion. Further, section 8B shielded the Minister from scrutiny, even on bad faith, and the only permissible challenges were those realting to procedure. That being the case, as long as the procedures were complied with and the Minister said that there was basis for the detention in his view, the court had no power to review.

We concluded the arguments on the 22nd itself, thanks to the Judge having cleared his schedule to accommodate us. At the conclusion of arguments, the Judge indicated that he needed to time to go through the comprehensive submissions and the law.

The Judge scheduled his decision for 7th November, the first date he could do so on. The Judge noted that this was a habeas corpus but explained that this was the earliest he could manage. This was fair in view of the seriousness of the arguments and the fact that the court has other matters before it.

MIS

The Ends Of Justice

2008-10-21T14:27:00.004+08:00

The Ends Of Justice

In 2001, ten reformasi activists were detained by the police under the ISA, amongst them Ezam Mohd Noor, Tien Chua, Raja Petra, Abdul Ghani Haroon and N Gobalakrishnan. Habeas corpus applications were filed, challenging their detentions for being groundless and in bad faith as the detainees were in no way threats to national security.

In the order of things, the applications of Ghani Haroon and Gobalakrishnan came up before Justice Hishamuddin Yunus who was then a judge at the Shah Alam High Court. A team of lawyers led by R Sivarasa presented their case and as the issues involved were complex, the Judge reserved his decision to a later date to give himself more time to fully consider the submissions and the law.

It was decided by the team that I would appear before Justice Hishamuddin on the day he was due to deliver his decision. If the decision was favourable, I was to obtain a statement from both Ghani Haroon and Gobalakrishnan as to what had happened during their detention by the police. The detainees had not been permitted to see their lawyers from the time they were detained. Five of the other eight detainees had had their habeas corpus applications disallowed by Justice Augustine Paul, then of the Kuala Lumpur High Court, and his decision was under appeal to the Federal Court. Any information I could get was relevant to whether the police had acted in bad faith and would be of great significance to the appeal.

The team was however concerned that should the court free Ghani Haroon and Gobalakrishnan, they would be rearrested as soon as they stepped out of the courthouse. This was not an unknown occurrence, Karpal Singh having been famously rearrested upon his being granted habeas corpus in 1987.

My brief was as such to come up with a way to keep our two clients within the courtroom and get a statement from them before they were rearrested, if this was to occur. This was not going to be easy and I remember thinking that law school had not prepared me for this. There I had learnt of an ideal world where decisions of courts were respected not just in letter but also in spirit.

The decision was handed down as scheduled late in the morning. Nerves had denied me any sleep the night before and were making me nauseous. Justice Hishamuddin began to read out what we were to soon discover was a comprehensive and admirable treatise on the liberty of the individual and the care with which that right was to be safeguarded against executive arbitrariness. Armed with the Constitution, his hand guided by justice and humanity, the Judge struck down the detentions with all the condemnation that oppressiveness deserved.

I did not know that at the outset of course. As Datuk N H Chan, formerly of the Court of Appeal, muses in his book ‘Judging The Judges’, keeping audiences in suspense was one of the small pleasures of being on the bench. Justice Hishamuddin exploited that privilege and saved his conclusions to the end. There were hints though and as I began to believe that we might just win, a shiver ran down my spine. It, and the immense satisfaction that I felt at seeing the law serve the ends of justice as the judge granted habeas corpus, have stayed with me till this day. That memory, and the undying hope that it gave life to, have taken me back into court time and time again since.

It was a Friday and the Judge directed that our clients be produced in court that afternoon to allow him to direct their release. I was grateful for the extra time this gave me to come up with a firmer plan of action. Though I knew what I was supposed to do, the details were more than slightly hazy.

Thankfully, adrenaline works wonders. As we made our way to the courthouse, it was clear that something was afoot. There was a tremendous police presence in the precinct and in the court complex. Roadblocks had been set up and visitors were being screened. It was apparent that the police expected trouble and it was not difficult to see why. Though by winning supporters would be jubilant, not angry, an outburst could occur if provoked in the way a re-arrest would.

I felt outraged. We had fought hard and fair, and we had won the day. Surely, that could not just be wiped away.

If it was naiveté that fueled my emotion, I was glad. By the time I got to my feet, all nervousness was gone. Luck was also on my side, it would seem. Datuk Hishamuddin had had to walk through the throng of police officers as well. As I pointed their presence to the Judge and expressed my concerns about the possibility of a re-arrest, he turned to counsel for the government and asked whether this was going to happen. Counsel was equivocal and the Judge was not impressed. Turning to me, he said that I could take it that there was going to be a re-arrest and asked what I wanted.

This was the moment of truth. Noting how he had concluded that the detention was unconstitutional and inhumane, I explained how the wives of the detainees had been informed and were on the way from Penang even as I spoke. I urged him to consider how unjust a re-arrest of the detainees would be and reminded him how, as a High Court Judge, he was empowered to give any direction to give effect to my clients’ constitutional rights. I asked that he restrain the police from re-arresting the detainees for a period of twenty-four hours and then I prayed.

Justice Hishamuddin granted the order. Our clients saw their wives and families. They were never re-arrested under the ISA.

(Malik Imtiaz Sarwar is counsel to Raja Petra Kamaruddin whose habeas corpus application is scheduled before the Shah Alam High Court on 22nd October 2008. He is also the President of the National Human Rights Society and blogs at www.malikimtiaz.blogspot.com)

(Malay Mail; 21st October 2008)

MIS

On Unity

2008-10-15T13:13:00.004+08:00

The River

In the valley of Kadisha where the mighty river flows, two little streams met and spoke to one another.

One stream said, "How came you, my friend, and how was your path?"

And the other answered, "My path was most encumbered. The wheel of the mill was broken, and the master farmer who used to conduct me from my channel to his plants, is dead. I struggled down oozing with the filth of those who do naught but sit and bake their laziness in the sun. But how was your path, my brother?"

And the other stream answered and said, "Mine was a different path. I came down the hills among fragrant flowers and shy willows; men and women drank of me with silvery cups, and little children paddled their rosy feet at my edges, and there was laughter all about me, and there were sweet songs. What a pity that your path was not so happy."

At that moment the river spoke with a loud voice and said, "Come in, come in, we are going to the sea. Come in, come in, speak no more. Be with me now. We are going to the sea. Come in, come in, for in me you shall forget your wanderings, sad or gay. Come in, come in. And you and I will forget all our ways when we reach the heart of our mother the sea."

Khalil Gibran, "The Wanderer" (1930)

All The King's Men...

2008-10-14T10:15:00.007+08:00

All The King's Men...

I wonder what it means for the future of this country that Datuk Mukhriz Mahathir, a current UMNO favourite son and most certainly one whom the dizzying heights beckons, has taken the view that matters pertaining to the reform of the Judiciary are not a priority. As was reported in an article in The Sunday Star, the Honourable Member of Parliament for Jerlun questioned the need for judicial reform. He claimed that Malaysia would not crumble without these reforms and, in any event, they did not benefit the Malays or UMNO.

I would have thought that the question of whether the Judiciary and the wider system of justice are in need of reform is moot. Even without the acknowledgment by the Government earlier this year that steps had to be taken to restore confidence in the Judiciary, it is glaringly apparent that all is not as it should be. Standards of judicial competence are worryingly low as is public certainty of the integrity of the judicial process. This latter aspect is no longer a matter of speculation, delusion or political spin; the conclusions and recommendations of the Royal Commission of Enquiry on the VK Lingam video made things explicitly clear: things need to be sorted out.

Matters of judicial competence and integrity impact across the board; they are neither race nor political-party specific. Bad or skewed decisions hurt the wider legal profession and the nation as a whole as much as the litigants involved. One of the biggest difficulties practicing law at the present is the lack of certainty in the law, in part for there being a slew of decisions that have been adjudged without due regard to principle or precedent. In becoming precedents themselves, these decisions have undermined the foundations of not only the legal system but also the system of commerce that it supports. Commerce being wholly dependent on the certainty that only an effectively functioning legal system can provide, the current state of affairs is anathema.

It is for this reason that when entering contracts pertaining to Malaysia, many a commercial party now take pains to stipulate that the law of the contract is not Malaysian law and that dispute resolution is to take place outside the country. That is a cause for great concern, one that we have ignored for far too long to our own detriment. A weak system of justice does no favours for the country in which it exists; it is a sure path to failure for driving investment away, much as we are currently experiencing.

Is this not a matter that affects the Malays and UMNO as much as the rest of us?

This is not just a matter of our all being Malaysians and having a common future. Malays are as much litigants before the courts as any other Malaysian. They are as involved in business and corporate deals as much as the next person is, even more some would say. A cursory perusal of the law journals would show just how far, just as they would the fact that they accuse, or are being accused, of cheating and breaching duties, or murder, rape or theft, just like anyone else. UMNO itself is capable of being dragged into court just like any other society and has in fact been there before.

Surely a stronger, independent and more competent Judiciary would benefit these quarters, as much as they would everyone else? After all, justice is supposed to be blind.

I think Datuk Mukhriz Mahathir has much to offer this nation, in parliament and outside it. His reasoning in this instance is however sorely misconceived. The said article suggests that he has formed the view that the reforms are an expression of anti-Mahathirism, notably that of Datuk Zaid Ibrahim. Though I will not speak for the former Minister in charge of legal affairs, he is more than capable of doing that for himself, I will say that the potential UMNO Youth Chief may have mistakenly confused an articulation of the need for reform with a personal attack on Tun Mahathir.

The call for reform started long before Datuk Zaid Ibrahim made headway in UMNO. It was prompted by the serious consequences of the 1988 attack on the Judiciary and the Rule of Law. Many in one form or the other, including the Judiciary itself and great legal luminaries such as His Royal Highness Sultan Azlan Shah, have taken it up. Their message is clear; something needs to be done.

The Malaysian Judiciary was once respected throughout the Commonwealth, it no longer is. Its foundations have suffered a beating from the shockwaves that emanated from the events of 1988. The testimony at the Lingam Commission hearings showed how much they still reverberate and, for that, how precarious the position of the institution is.

Is it in danger of collapsing, taking the nation along with it? Only time will tell. The question for us all, Datuk Mukhriz included, is whether we want to wait to find out.

(Malay Mail; 14th October 2008)

MIS

On Democracy

2008-10-14T09:53:00.004+08:00

"Ever since ancient Greek times there have been two views as to the way of producing true beliefs, and two corresponding views as to the best form of government. Although these two connected controversies have existed over two thousand years, they are as vigorous in the present day as at any former period. The two ways of producing what are deemed to be true beliefs may be distinguished as the way of authority, and the way of discussion and investigation. Similarly the two forms of government are that of authority and that of discussion followed by a majority decision. Where the way of authority is adopted as the method of producing true beliefs, certain opinions are inculcated as having been proclaimed by the wise and good: those who controvert those opinions are held to be foolish or wicked or both, and are subjected to penalties which have varied in kind and in severity according to the age and the country. Sometime the supporters of orthodoxy rely wholly on tradition, but in most cases there is a sacred book with which it is impious to disagree. In Christian countries men were burnt for questioning the official interpretation of the Bible; in Mohammedan countries it was very rash to thrown doubt on any part of the Koran; in modern Russia, you risk liquidation if you disagree with Marx or Engels as expounded by the Kremlin. In all such cases the government upholds a collection of dogmas, and spreads belief in them, not by argument or appeal to evidence, but by shielding the young from contact with adverse opinions, by censoring literature, and by punishing, usually by death, such heretics as nevertheless have the temerity to proclaim their subversive views. As a rule, under such a system, the government, having the habit of authority, becomes gradually more and more tyrannical until, in the end, it is brought to destruction in a fierce revolution."

Bertrand Russel, 'A Scientist's Plea For Democracy' (1947)

Free RPK: 2nd Habeas (Update)

2008-10-08T09:46:00.004+08:00

The second habeas corpus application is scheduled to be heard at 9.00 am on 22nd October 2008 at the Shah Alam High Court before Justice Syed Ahmad Helmy bin Syed Ahmad.

The Government Man

2008-10-07T17:54:00.006+08:00

The Government Man

Allow me to hypothesize with you this week.

Let us, for arguments sake, say that those detained under the ISA are treated in a manner that leaves much to be desired. Assume that they are subjected to tactics of intimidation and coercion, either through interrogation or carrot-and-stick strategies that leave them mentally traumatized. At the whim of those who are in charge of them, they could be kept in solitary confinement for prolonged periods, denied visitation rights, be given food that could not in any way (and I do not mean any disrespect to the egg or those who eat it) be described as wholesome or nutritious or given amounts so meager that health and strength are affected. As a consequence, those detained are suffering.

Would that be torture? For those of you who say ‘no’, would it instead amount to cruel or inhuman or degrading treatment? For those of you who still say ‘no’, what if I were to add that those detained have not been found guilty of any crime and, in fact, those who have been and are serving prison terms, are treated better? Would it make a difference?

A theorist would have answered that the treatment described would by any standard have amounted to torture or cruel, inhuman and degrading treatment. This would have been reinforced by his (or her) belief that the detention was unlawful for having been occasioned without due process.

I share that view; in the presence of such factors it could be reasonably concluded that detainees are being subjected to some form of cruel, inhuman or degrading treatment, if not outright torture. My view, like that of the theorist, would be supported by a number of international human rights instruments including the Convention Against Torture and the International Covenant on Civil and Political Rights. These instruments and commentary collectively say that subjecting a detainee to intense mental stress, through sleep deprivation or prolonged solitary confinement or food that was inedible or lacking in nutritional value, is arguably torture or cruel, inhuman or degrading treatment.

On the other hand, a Malaysian diplomat or administrator, the hypothetical Government Man, would in all probability answer that there is no question of the treatment being torture or anything else offensive. How could it be, he would ask, when there is no law in this country that says these things amount to torture? After all, he might add with a conspiratorial wink, the Federal Constitution does not say that these things could not be done, just as it does not mention democracy.

Trying to argue the point further, one might point to the fact that Malaysia is a member of the United Nations Human Rights Council. In this capacity, Malaysia sits at the core of the international human rights system. Surely, by virtue of its appointment as such, Malaysia is morally bound to live up to the expectations of the international community?

The government representative might give this some thought, or pretend to, and then, with a sigh of regret, say that Malaysia has not ratified any of the international treaties that proscribe torture or cruel, inhuman or degrading treatment. And, he might laughingly add that if one wanted to consider international expectations, why not take into account the kind of things that the United States has done in Guantanamo Bay and Abu Ghraib?

Saving the best for last, one could then point to the Universal Declaration of Human Rights, which also prohibits this kind of treatment. Malaysia has adopted and re-adopted the UDHR in one form or the other so many times over the years that it must have a bearing.

Shrugging, he would say somewhat condescendingly that the declaration is just that, a declaration. It has no binding effect. For that, one needs to ratify a treaty and, as has been explained, Malaysia has not ratified any such treaty. That the role of the UDHR has evolved over time and that in having become a cornerstone of the human rights system, it has gone far beyond being merely a statement of aspirations would not appear to strike the Government Man as a factor worth troubling over.

Much has been said about Guantanamo Bay and Abu Gharib. Questions have been asked as to how the United States, a party to the CCPR and the Torture Convention, could have allowed for this. Some with influence have argued that the treaties only apply to the “territory” of the States. Such sophistry is a hallmark of the political underpinnings of the human rights system, a tried and tested way for states to avoid playing by the universal rules.

Malaysia is no exception. When inconvenient, it has rejected the United Nations processes, in particular its human rights system. Over the years, we have heard of how we have distinct values of our own because we are Asian or that as a Muslim country, the governing paradigm is the syariah, in response to queries as to why international norms are not being met. These responses have bordered on the ridiculous; these alternative value systems do not lend themselves to cruelty and injustice any more than any other system does.

The refusal by the Government of Malaysia to ratify any of the major human rights treaties, in particular the Torture Convention and the CCPR, cannot be justified. The only inference that can be drawn is that the Government of Malaysia does not want to be constrained by these instruments.

We do not need the Government Man to tell us why.

(Malik Imtiaz Sarwar is counsel to Raja Petra Kamarudin who was detained under the Internal Security Act on 12th September 2008. He is the President of the National Human Rights Society and blogs as ‘Disquiet’ at www.malikimtiaz.blogspot.com)

(Malay Mail; 7th October 2008)

MIS

Diversity

2008-10-07T11:27:00.004+08:00

This is a photograph of the Sultan Ismail Petra Silver Jubilee Mosque in Rantau Panjang, Kelantan. It is still being completed but you can see why it is being referred to as the 'Pagoda Mosque'. Maverick has a blog post on the mosque (I lifted the photo from it). The NST has a story on it too, the mosque seems to have found favour with tourists.

A picture is worth a thousand words, they say. This one says that Islam does not belong to any one community, it has room for all.

My fervent hope is that our acceptance of diversity goes beyond architecture and tourist attractions.

MIS

Let Us Not Forget

2008-09-30T15:29:00.003+08:00

Let Us Not Forget

This Hari Raya, sixty four individuals will be prevented from spending time with families and loved ones the way they rest us of will. What stops them from doing this is not a term of imprisonment, they have not been charged or convicted or any crime, nor incapacity, they are as capable as you and I. Detained under the Internal Security Act in Kemunting, the barrier that lies between them and the rest of us is the judgment of one man, the Home Affairs Minister.

As a young boy, I used to read ‘2000AD’. Through this I came to know of Judge Dredd and how he and his fellow police officers were ‘Judge, Jury and Executioner’. And even though the guns, motorbikes, violence and women in leather were really my focus, an understanding of why the rules had to be suspended in that comic-strip world did filter through. The situation was extreme; these enforcers were the last bastions against a world of total chaos. They were the law because the situation demanded it.

The justifications the Government offers for its continued use of the ISA are strikingly similar. We have been told, in one form or the other, that those detained are threats to national security. We are urged to understand that there are compelling reasons that make it a matter of critical importance that they be detained without trial. Were they left free to work their schemes through to completion, it is said, the nation would be in grave danger.

As much as the current Home Affairs Minister may think he is Judge Dredd (tread with caution, the image of the Minister in leather, zips and boots is not for the faint hearted), he should perhaps appreciate more fully that Malaysia is not facing the kind of apocalyptic prospect that the ISA was designed for. The extreme gravity and urgency warranting summary detentions is conspicuously absent. We are a nation at peace; armed insurrections are a thing of a distant past. We would not be plunged into chaos, democracy destroyed, if we stopped to smell the roses, or try those detained in court for that matter.

Circumstances are such that we are left with little choice but to doubt the legitimacy of detentions under the ISA.

How are we to believe that those detained were in fact the serious threats they were supposed to have been when so many of them had gone on to serve the Government in one way or the other? Dato’ Seri Anwar Ibrahim was detained in 1974 and kept in detention for some twenty months. He went on to serve the nation as Education Minister, Finance Minister and, ultimately Deputy Prime Minister. Datuk Dr Maximus Ongkili, our current Minister of Science, Technology and Innovation was also detained for some two months in 1991. They are just two of numerous instances.

How are we not to doubt the bona fides of detentions when the ISA was amended in 1989 to put the Minister’s decision to detain beyond the reach of the law. How else is one to characterize restricting the scope of review to merely matters of procedure? Scrutinizing detention orders to see whether the Minister dotted his i’s and crossed his t’s while he thumbs his nose at you from behind his legislative barricade is not a process that inspires confidence.

How are we to trust in the sincerity of explanations when though our current Prime Minister declared in 1987 that, “Laws such as the Internal Security Act have no place in modern Malaysia. It is a draconian and barbaric law.” he did an about face in 2003, saying instead, "We have never misused the Internal Security Act. All those detained under the Internal Security Act are proven threats to society”. The irreconcilable positions reveal just how far politics rules the day. That a significant number of those detained through the years have stood in the way of the Government’s political interests only goes to reinforce this impression.

Sadly though, what I have said here is not novel. Many before me have expressed the same sentiment, their pleas having fallen on ears deafened by other priorities it would seem. This has been aided in part by the way in which the issue has consistently been permitted to slip back to the periphery after the initial flurry of excitement and expressions of disbelief that mark the then most recent round of detentions. The issue lies there, in its dark corner, forgotten like those who have been detained; out of sight, out mind.

In allowing for this we have given comfort to the Government, indicating to it that as much as we may have disagreed, it is not a matter of great importance to us. We are as much to blame as those who put the detainees away.

Eid is a time for reflection and introspection; it is a time for resolve. This year as we celebrate and give thanks, perhaps we could pause to remind ourselves how fortunate we are for not having been forgotten, for being able to reach out to touch those who matter to us. Perhaps we could take a moment to see that we are really all that those who slowly fade away under the ISA have.

Let us remember them and the injustice that they have been made to suffer, let us not let others forget.

Eid Mubarak.

(Malik Imtiaz Sarwar is counsel to Raja Petra Kamarudin who was detained under the ISA on 12.09.2008. He is also the President of the National Human Rights Society and blogs as ‘Disquiet’ at www.malikimtiaz.blogspot.com)

(Malay Mail; 30th September 2008)

MIS

Free RPK: 2nd Habeas

2008-09-30T10:43:00.003+08:00

The application for habeas corpus directed at the Minister of Home Affairs was filed this morning. This challenges the validity of the order issued by the Minister on the evening of 22nd September 2008. As indicated earlier, the scope of review has been limited by the ISA which, by way of a provision which lawyers refer to as an 'ouster clause', excludes the jurisdiction of the court to scrutinize the order except on matters of procedure. The team however feels that we nonetheless have a strong case to argue.

No date has been fixed for the hearing as yet. We expect to know only after Hari Raya.

The first habeas corpus application is still pending. The judge has to make a decision whether to strike it out for being academic. As we see it, it is not as the detention order issued by the Minister was based on the recommendations of the police. The order issued by the Minister flowing from the earlier detention by the police, we take the view that the validity of the earlier detention is of relevance to the question of whether RPK is currently being legitimately detained. This is to be argued further on 28th October 2008.

MIS

How To Be Happy

2008-09-25T11:04:00.005+08:00

How to be happy

The idea of enacting a law that deals specifically with race relations in this country is a good one. It is evident that politics, tunnel vision and a lack of imagination have resulted in our society being a great deal more fractured than it should have been, all things considered.

Who would have thought in 1957 that fifty plus years down the line, there would still be a demand for supremacist rhetoric and the fruits of discrimination. But here we are; confused and frustrated, trapped in a labyrinth of our own making. So much so that we have lost sight of plain and obvious truths that could lead us into an age of miracles if rediscovered.

A long while ago, I was rummaging amongst a friend’s book collection and came across a little book by the current Dalai Lama entitled, I think, “How To Be Happy”. Wanting to be happy, I turned to the first line on the first page. If I remember correctly, it said something to this effect: in order to be happy, one had to be happy.

You can imagine how I was somewhat put out by this. If it were that simple, I mused somewhat cynically, we would all be a lot happier. There was surely more to it than that for how else was one to deal with the mysterious complexities of life, I grumbled. I put the book back where I had found it and moved on to a glossy magazine with great photographs.

In hindsight, I realized that I should have paid more attention to that drop in the ocean of wisdom.

Quite a few years later I suddenly realized that over time, life had compelled me to simplify how I dealt with it. It was either that or become victim to the stresses and turmoil that I seemed to have had a knack for subjecting myself to. More and more, I had learnt how to accept the obvious and to say ‘no’ when I needed to, distancing myself from distress, even as I found out how to accept what I did not understand with a more open heart. I saw then that though I had some way to go on my journey, I was relatively happy and that I had got there by, well, trying to be happy.

I tried to find that book again but it had moved on to illuminate someone else's life.

The most obvious truth about being a Malaysian is that all of us, regardless of our background and ethnicity, call this country home and share it with everyone else. We got together at independence because we all believed that we had a place here and that we could live together harmoniously and respectfully for all our benefit. That made us all fulfilled and each of us contributed to its, and each others’, growth.

Somewhere along the way however, we began to take that truth for granted and after a while it was left by the wayside, forgotten. In its place was a void that was soon filled by resentment with a deep, burning need for recognition and belonging that we sated with anything that offered immediate gratification. Race, religion, anything that gave us an identity, was soon being fed to that driving hunger. As with all gangs, those with stronger numbers and greater resource soon ruled the day and discrimination became a way of life.

It still is, and for being so interleaved with so many aspects of our life, is the single, biggest obstacle to our living together harmoniously. It is also the greatest cause of distress and for being that, is something that we must collectively distance ourselves from as we learn how to appreciate and embrace the self-evident truths of being Malaysian.

Discrimination has however become so entrenched that the way forward needs the careful guidance that only a structured policy can offer. A race-relations law, providing for the necessary structures such as a race-relations commission, is arguably the only effective way for such a policy to be introduced and implemented.

Worryingly though, those who have proposed such a law seem more focused on creating more strictures in an already hidebound existence rather than on creating a shared platform for sustainable and inclusive development. This is not the correct approach. We do not need more regulations on what we can or cannot say, we have too many already. What we need is a way to ensure that no Malaysian is sacrificed in whatever way to satisfy the need of another.

For that, a sustained effort must be made to fully eliminate any and all forms of discrimination in public life in this country. Where the race-relations law is concerned, the focus must be on racial discrimination. The law should aim at creating an environment in which the equality of all citizens can be promoted and fostered in the way that the Federal Constitution guarantees. The constitutional scheme aimed at protecting disadvantaged Malays and natives of Sabah and Sarawak through objectively applied affirmative action is not inconsistent with such a goal.

Can we be happy? I think so. It requires us to open our hearts and accept some truths. It needs a little creativity and a lot of trust.

I would like to think we are up to that challenge.

(Malay Mail; 23rd September 2008)

MIS

Free RPK: It's Not Over

2008-09-24T08:06:00.005+08:00

Let me first apologise to you for not having given you an update yesterday. It was a trying day, the culmination of a period of work and stress that began the day RPK was detained. Not just for me but for the other members of the team, in particular Ashok Kandiah and Neoh Hor Kee.

You would have read of how the application was originally fixed for the 26th of September. It was through the enormous efforts of both these lawyers that the hearing was brought forward as it was. It was also through their efforts that the necessary court papers and affidavits (statements on oath) by RPK were obtained as quickly as they were. It was primarily due to their efforts that when, as lawyers say, I got up on my hind-feet in court yesterday, we were ready to give it the best shot we could. I believe that the case we would have mounted for RPK would have been virtually unassailable.

But out attempts were impeded.

I say impeded because at this juncture we do not know whether the High Court is going to hear the original section 73 application now that the Minister has issued a detention order. A fresh application can also, and will be, filed to challenge that order. To be fair to the judge concerned, Suraya Othman J, she considered herself bound by precedent that she thought tied her hands. She acted fairly, albeit conservatively.

As much as some of us may think otherwise, RPK's case is one of many that the judge has to deal with. We must also keep in mind that the judge has not dismissed or struck out RPK’s application even though this was what Federal Counsel sought. It is now for us to attempt to convince the judge that there is merit in proceeding with this application even though she will not be able to order the release of RPK based on this application alone. I would like to think that we still have a chance.

A second habeas corpus application will also be filed to challenge the Minister’s order. We started working on it yesterday. In truth, we are handicapped; the ISA precludes comprehensive review of such an order. Added to this is the legal position that such an order is issued by the Minister at his subjective discretion. The courts have been reluctant to interfere with the Minister’s discretion, save on procedural grounds, on the basis that, firstly, the law does not permit otherwise and secondly, the Minister knows best about national security.

This is the massive obstacle we are faced with.

This is one of the reasons why a section 73 detention is converted to a section 8 detention when the IGP is confronted with a habeas corpus application; the issuance of the Minister's order narrows the scope of review and permits the Minister to shield himself behind a veil of national security. RPK is not the first victim of such a strategy. We experienced the same difficulty during the so-called JI detentions in late 2002.

There are however peculiarities about RPK’s detention that may give us footholds to ease our ascent. The media has reported that the Minister issued the detention order on the recommendations of the police. These pertained to the so-called anti-Islamic articles that RPK is supposed to have written. We at least know the basis of the detention and are able to bring it into focus when we get to court.

There are also no other legal tricks that can be pulled by the Ministry. The issuance of the detention order is as problematic for RPK as it can get. Some have said that this makes the detention virtually immune from challenge. I would like to think that the interests of justice can always be served if we remain hopeful of finding the path to it.

Every case in court brings us into uncharted territory and with it surprises. I have had my share. In 2001, Justice Hishamuddin ordered the release of Abdul Ghani Haroon and N Gobalakrishnan. He also prevented the police from re-arresting the two. I was in court the day he pronounced the orders and the sheer exultation I felt as he did remains with me to this day as has the awareness that there are those who will do the right thing when times seem darkest.

RPK and the other civil society leaders who have shown us the way started a process to transform this country. This legal campaign is a part of it as is the mounting civil society pressure against the ISA that have spring-boarded off his detention and that of Theresa Kok, Tan Hoong Cheng and the HINDRAF 5. RPK knew what would happen and lent himself to the process. For that reason above all, he is firmly ensconced in my mind as a patriot.

We must not lose faith. The fight has not ended, it has just begun.

MIS

Free RPK (Update)

2008-09-22T11:40:00.003+08:00

RPK's habeas corpus application is now scheduled for tomorrow morning (23rd September 2008). It will be heard by Justice Suraya Othman of Criminal High Court 1. The court is situated on the 5th Floor (left wing), KL Court Complex, Off Jalan Duta.

RPK has been detained under section 73(1) of the Internal Security Act. Unlike a detention by the Minister under section 8 (as was the case with the HINDRAF 5), a court must review a section 73 detention on an "objective" basis. It must satisfy itself objectively that there was a reasonable basis for the detention in the context of national security. The detaining authority is therefore under a burden to establish that the activity complained of (on the part of RPK) could reasonably be characterised as a threat to national security.

If the court allows the application, RPK must be released immediately. If the court dismisses it, an appeal lies directly to the Federal Court.

MIS

Navigating The Constitutional Impasse

2008-09-20T12:44:00.007+08:00

It seems that we are well on the way to a constitutional crisis. A deadlock looms and, as some commentators including Professor Aziz Bahri of the International Islamic University have suggested, much will depend on how proactive the Yang di-Pertuan Agong can and will be in breaking it. In this, and more, it is becoming increasingly apparent that that the line between those who want change and those who do not will be the Federal Constitution.

Let us consider the objective elements.

Firstly, any Prime Minister of the nation must necessarily be the person who commands the confidence of the majority of the members of the Dewan Rakyat. As to who it is that commands the confidence, this is a decision for the YDPA “in his judgment”.

Until the events in Trengganu shortly after the last general and state elections, it was commonly thought that this was really a matter of having the numbers, that is the person with the most number of supporters in the chamber would become the leader of the government. The interventionist position of the Regency Council, for all purposes and intents the Sultan, earlier this year shed light on how things could justifiably be viewed differently. The appointment of Ahmad Said as the Mentri Besar possibly set a precedent and gave us foundation for the argument that it was ultimately the judgment of the monarch that mattered.

This is relevant as the material provisions in the Federal Constitution are virtually identical to those in the Trengganu state constitution. The YDPA could, as such, approach the issue in a similar way. This is not necessarily impossible; the YDPA is the Sultan of Trengganu.

Secondly, a Prime Minister who no longer commands the confidence of the majority has two options. He can ask the YDPA to dissolve parliament and use that to call for fresh elections. The YDPA however has an absolute discretion to withhold consent and as such, could legitimately refuse. This would leave the Prime Minister with no option other than to tender his resignation and that of his Cabinet and pave the way to the appointment of a new Prime Minister, one who in the judgment of the YDPA commands the confidence of the majority.

Thirdly, the Federal Constitution does not say how to establish that the Prime Minister has “ceased to command the confidence of the majority”. A vote of no confidence is an obvious method but not necessarily the only one. To read the constitutional provision otherwise would not only be unwarranted (an unnecessary implication of meaning) but would also allow for unconstitutional action, such as the use of the provision to impede the expression of the majority of the Dewan Rakyat. It is possible that circumstances could arise where an incumbent government seeks to prevent the meeting of members in Parliament to undermine any attempt by the majority to form a new government. To read provisions of the Constitution to lend to such an outcome would be wholly repugnant to the scheme the Constitution puts in place.

As such, it is open to the YDPA to form a view through other means, such as direct meetings with the majority of the Dewan Rakyat, so as to satisfy himself that the incumbent Prime Minister has in fact ceased to command its confidence. Events in Perlis and Trengganu earlier this year are illustrative of this course. That this approach is not necessarily ideal, for being amongst other things, fraught with practical difficulties, does not in itself militate against such an approach having been within the contemplation by the founders of the Federal Constitution.

Fourthly, assuming the YDPA nonetheless felt it necessary to have a vote of confidence put through the Dewan Rakyat, a question arises as to how this would be approached. If parliament were sitting, this could arguably be put through the Dewan. Such a motion would be extraordinary and exceptional. Going to the very foundations of the legitimacy of the incumbent government, it would have to be treated as a matter of priority. To allows such a motion to be encumbered by the procedural requirements of parliament would be wholly repugnant to the spirit, if not the letter, of the Federal Constitution. Even though the Speaker does have control of proceedings in the Dewan, he must allow for urgent debate and a vote on the motion if there is sufficient foundation for the motion. He has taken an oath to preserve, protect and defend the Federal Constitution and, therefore, the system of governance it puts in place. Such a motion and its outcome are self-evidently matters of grave constitutional significance and impact that cannot be ignored.

This would be more the case if the YDPA gave indication that it was His Highness’ wish for the motion to be dealt with as a matter of utmost priority. Under the Federal Constitution, Parliament is constituted of the YDPA and the two houses of parliament and an expression of His Highness’ intent cannot but be given great weight.

If parliament is however not sitting, a question arises as to whether the motion should be deferred to a time when parliament reconvenes. The question of the legitimacy of an incumbent government is not a matter that can be taken lightly assuming there is reasonable foundation for a belief that it no longer commands the confidence of the majority. The government does not adjourn as parliament does and it continues to act on the basis that it has the mandate to do so throughout its term. It would therefore be only logical for parliament to reconvene on an urgent basis to debate and vote on the motion. This however raises the question of how parliament is to be summoned.

The Constitution provides that the YDPA summons parliament. This is arguably done on the advice of the Prime Minister and it is for this reason that parliamentary procedure provides for reference to the Prime Minister. The Constitution is however silent on a situation where the motion in issue is one aimed at establishing that the incumbent Prime Minster no longer commands confidence. So are parliamentary rules. Though it could be said that there is as such no power with the YDPA to summon parliament, to read the Constitution as vesting a discretion in the incumbent Prime Minister to determine whether the Dewan will meet on whether he or she commands the confidence of the majority would lend to an obviously self-defeating outcome. It would after all be in the interests of the incumbent Prime Minister not to allow for the summoning of the Dewan. This cannot be right.

It is reasonable to read the Constitution as providing for this exceptional situation in the following way: the YDPA has the discretion to summon parliament for this purpose in view of it being an incident to the absolute discretion of the YDPA to appoint as Prime Minister a person who commands the confidence of the majority. Simply put, the YDPA must be given means to ensure that the Prime Minister is a person who commands confidence if His Highness is given reason to apprehend otherwise.

As such, His Highness could direct the Speaker to summon the Dewan Rakyat to debate the motion. The Speaker would be at risk of defying a legitimate direction of the YDPA and breaching his oath of office, with all the consequences of such an act, if he refuses. Alternatively, the YDPA could direct the incumbent Prime Minister to summon the Dewan. A refusal would similarly run the risk of being an unlawful defiance of a legitimate direction or a breaching of the oath of office.

Sixthly, in the event the YDPA forms the view that the incumbent Prime Minister has ceased to command the confidence of the majority, the YDPA could then appoint a new Prime Minister. A further question arises as to whether the incumbent Prime Minster must firstly tender his resignation and that of his Cabinet. Though this would be ideal, I have my doubts as to whether it is a necessary prerequisite, especially if the incumbent government intends to undermine the forming of a new government. Though the Federal Constitution does not provide for the dismissal of a Prime Minister, the appointment of a new Prime Minister would merely be giving effect to the wishes of the majority of the Dewan and system of governance put in place by the Constitution.

But then, what if the incumbent government refuses to vacate office? If the new Prime Minister is sworn in and given the necessary instruments of power, the incumbent government would in effect no longer be the government of the day and would no longer in law be lawfully possessed of power. Those individuals who lend themselves to this situation could be viewed as trespassing and, worse still, be seen as attempting to usurp the legitimate power of a lawful government. This has grave consequences.

The analysis set out above is based on my understanding of the Federal Constitution and it goes without saying that others may take a different view of the issues. However, it must be borne in mind that as the supreme law, the Constitution defines the way in which we are to organize ourselves and arrange our affairs. This extends to transitions of power, something which the founders could not but have contemplated as being possible. The Constitution was drafted in general terms so as to ensure that it was relevant and applicable to situations in an evolving nation and remain a vibrant and living law. The answers are there if we look for them fairly and objectively.

In the difficult times ahead, it is clear that the various factions will take positions on key constitutional provisions and interpret them in a way that favour their intended aims. In this, the YDPA plays a crucial role as does the Judiciary. It is therefore vital, and I say this respectfully, that both these institutions be seen as being detached and far removed from the politics of the unfolding events. How the approaching crisis is resolved, and the way in which this is done and seen to be done, are matters that go to our ability to meet the future with the stability and conviction that this nation requires to meet the challenges ahead.

MIS

All Present And Accounted For

2008-09-16T18:45:00.003+08:00

All Present And Accounted For

Like many others, I stopped breathing last Friday evening as I saw my worst fears begin to materialize.

For some time now, talk of a crackdown similar to the 1987 Operasi Lalang had been intensifying, in part due to the Government’s unapologetic stance as to its readiness to use the Internal Security Act when it thought it necessary. This had not given much comfort to those who remember the dragnets of 1987 and 2001. If history had taught us anything, it was that in a world where politics determines so much, “when necessary” is a heavily nuanced and very subjective notion. We cannot be faulted for assuming that UMNO will employ the ISA to its convenience if it is in its political interests to do so.

As the events of the weekend have shown us, our assumption has some basis.

By early Friday afternoon, I had learnt that Raja Petra had been detained. I had also begun to hear the rumours that this was the start of a wider sweep that was to take place over the weekend and was profoundly troubled by them. I found myself struggling between not wanting to believe that the Government would be prepared to take that course, it being so counterintuitive, and being forced by circumstance to accept that the terror had started. The situation was not clear. there had after all been prior indication of the Government’s intention to detain Raja Petra specifically. Furthermore, no one had been detained since Petra’s detention at about 1.50 pm. Like all victims of impending disaster, clutching at straws I began to try to rationalize my way out of what seemed like a certain outcome.

I had begun to make some headway when I got news that Tan Hoon Cheng had been detained.

Up to that point dinner had been congenial. It carried on in complete silence, each one of us there thinking of who it was that we knew who could possibly be picked up. We recalled how there had been no apparent pattern to the detentions of 1987 and appreciated that the authorities would want to be able to point to random causes to argue against accusations of a political plan if in fact there was one. Academics and missionaries had been swept up in Operasi Lalang, even as the opposition was neutered by the removal of its leaders and prime movers.

The detention of Hoon Cheng meant that virtually anyone who had in some way or other been a little more public than average was a potential target. As concerned friends and acquaintances began to call in, for my sake and a number of people I knew and cared for, the yawning abyss of uncertainty before me brought home the painful realization of the potential costs of standing up for beliefs and a better country. Liberty and the integrity of mind, body and spirit were really no more than a question of not being in the wrong place at the wrong time.

The news that Theresa Kok had been detained rammed that conclusion home. She had done nothing out of the ordinary, more so when compared to other personalities in politics. Any doubts I had began to dissipate; there was something bigger afoot.

It was a long night. Tracking news about people I knew, speaking to them, making sure that we all felt connected to each other, to share what little encouragement we could. Speaking to others, trying to help spread the message that whatever was to happen we were to meet it calmly and with the belief that things would be for the best.

But even as the pieces fell into place and we began to face up to the probability of a wide sweeping operasi, the differences began to emerge and I could see that this was not 1987. Malaysians were reaching out to each other, messaging and calling, organizing vigils, lending their support, standing up to the intimidation as best as they could with a calmness that shone out into the gloom that threatened to engulf us, dissipating it. Looking out, I saw lights on in houses on the street where I was late into the night, early into the morning. They were beacons of hope that promised the dawn of a new day.

And come it did, something happened.

Hoong Cheng was released, accompanied by a farcical explanation that only strengthened public resolve. Raja Petra and Theresa are still under detention but their families have got to see them and their lawyers are hard at work on what in my view seem to be promising cases for habeas corpus. No other persons were detained, perhaps in part due to Barisan Ministers and component parties having taken positions against the detentions, echoing the sentiment of outrage expressed by civil society. In an unprecedented move, an UMNO Minister tendered his resignation on principle for the unjust use of the ISA. And the Government has had its hands full attempting to explain the inexplicable as it never has had to before.

Whither Malaysia? We are right here, all present and accounted for.

(Malay Mail; 16th September 2008)

MIS

Free RPK

2008-09-16T16:05:00.003+08:00

We filed for habeas corpus this afternoon. Time to fight the good fight.

MIS

Selamat Hari Malaysia

2008-09-16T08:33:00.008+08:00

Selamat Hari Malaysia.

This photograph gives you an impression of the state of euphoria in Kelana Jaya last night at the Pakatan Rally (photo by TV Smith, more here; photos by Chee Seong here). More importantly, it gives you an idea of what a pluralist Malaysia would look like. I say would, not could, because it is an inevitable reality built on the undeniable truth that the only thing that keeps us apart from each other is politics. We are all anak Bangsa Malaysia.

September 16th, 2008. Whether it happens today, tomorrow, or the day after, Malaysians will get a government that they are entitled to, one that stands for truth, justice and fairness for all. Anwar Ibrahim says that the Pakatan Rakyat has the numbers. Even if they do not, even if it takes us a few more months or years to get to a point where Malaysia will look like it does in this photograph, with or without the Pakatan Rakyat, we will get there. I am convinced of this.

We are reclaiming what is ours, a free Malaysia.

MIS

Update: see also Thinkvision's Weblog for more photos and commentary

RPK, ISA And The Rest Of Us

2008-09-12T14:13:00.002+08:00

Malaysiakini reports that RPK has been detained by the police under the ISA. At the time of publication, the RPK was still at his house with police officers.

The news has spread fast. With it are concerns that a wider 1987 type crackdown is going to happen or that even worse, there is going to be chaos and racial violence.

We must remain calm. Reactionary behaviour and fear mongering is not going to make things any more sensible or easier. Things will unfold as they have to.

The Government must also do its part and explain clearly how RPK is a threat to national security and why he has been detained. He had presented himself everytime he was asked to at police stations and in court. He has been charged, has not attempted to flee the jurisdiction and has indicated his desire to defend himself in court. Access to Malaysia Today has been permitted. And though four police reports have recently been lodged against him by agencies linked to the Government, a consideration of those police reports in the bigger picture would reveal the unreasonableness of his being detained on the basis of what has been alleged in those reports. The Government must make the basis of its decision clear and why it is RPK cannot be tried in an open court.

And for the rest of us, let us stand united and firm in our belief in a better Malaysia.

MIS