Teoh Beng Hock: Perspectives On Inquests

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

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

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

MIS

Ipoh, 7th May 2009

"...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

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

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

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