Saturday, April 26, 2014

Defending the basic structure

It appears that PAS will be seeking to give effect to the Kelantan Syariah Criminal Code Enactment II of 1993 by way of a Private Members Bill in Parliament. Through this, PAS aims to introduce hudud laws into Kelantan for Muslims living I the state. The term ‘hudud’ (literally “limits”) refers to offences (and their corresponding punishment or sentence) that are considered by jurists to have been prescribed by the Quran and the Sunnah of the Prophet Muhammad. Punishments include death (by stoning), flogging and amputation.

It may be recalled that the 1993 Enactment, like its counterpart the Terengganu Syariah Criminal Enactment of 2003, which additionally introduced Qisas (retaliatory) offences and punishment, have been the subject of controversy since their inception. These laws, it was thought by many, were not only unconstitutional; they sought to codify impressions of Islamic criminal law that were not necessarily universally accepted.

Both the Kelantan and the Terengganu Enactments did not come into force, in part because of challenges to their constitutionality and public outcry. In 2003, Zaid Ibrahim was given leave by the Federal Court to challenge the validity of these enactments on the basis that the Legislative Assemblies of Kelantan and Terengganu did not have the competence to enact these laws. I appeared as counsel for Zaid Ibrahim. The Government of Malaysia, through the Attorney General, supported the applications. Though the petitions were ultimately withdrawn, the matter was thought to have ended there. The subject remained within the realm of politics and political brinksmanship.

Or so it was thought. The recent initiative to implement the Kelantan Enactment, albeit with the endorsement of Parliament, calls for a reappraisal of the matter, in particular its constitutionality and lawfulness.

No matter how many times the politicians say otherwise, Malaysia is not an Islamic state from a legal standpoint. The Federal Constitution declares itself the supreme law of the land. All actions by all organs of the State, including the Legislature and the Executive, at the Federal and State levels, must act consistently with that supreme law.  

Legislative power is divided between Parliament and the respective state legislative assemblies. The delineation of legislative powers is prescribed by the Federal Constitution itself, the 9th Schedule of which sets out in three separate lists – the Federal, State and Concurrent Lists – the fields of legislative competence of these lawmaking bodies. Criminal law as the term is commonly understood is within the domain of Parliament. The aim was to allow for the creation of a uniform system of criminal law applicable to all persons in Malaysia, a state of affairs required by the guarantees of equality before the law, equal protection of the law, and the equal protection of life and liberty. 

A minor exception was allowed for. Recognising the place of Islamic personal law in pre-merdeka Malaya (later Malaysia), State legislative assemblies were vested with the power to create Islamic law for personal law purposes. This included the power to establish Islamic courts, and create offences against Islamic precepts. In deference to federal control over matters of criminal law, the Federal Constitution required that sentencing powers for such offences be vested in the Islamic courts by Parliament. As thing stand, a federal statute – Syariah Courts (Criminal Jurisdiction) Act 1965 (Revised 1988) – limits the sentencing powers of the shariah courts to imprisonment of three years, with any fine exceeding five thousand ringgit or with whipping exceeding six strokes, or with any combination thereof.

Although we are yet to see what it is that the Private Members Bill is aimed at, it stands to reason that it will seek to amend the 1965 Act in so far as Kelantan is concerned to allow for hudud offences and sentences, with particular reference to the 1993 Enactment. From media reports it would seem that some PAS Members of Parliament are of the view that a simple majority of members present in the Dewan Rakyat would be sufficient to push the bill, and as such hudud in Kelantan, through. I beg to differ.

For one, this viewpoint ignores the fact that the Kelantan legislative assembly was not competent to enact the 1993 Enactment. In creating the offences and prescribing the sentences that it does, it has encroached into the domain of Parliament for having created criminal offences. It has in effect created a parallel system of Islamic criminal law that goes beyond the constitutionally contemplated scheme of personal law offences. This not only violates the legislative provisions of the Federal Constitution, it offends the various guarantees of fundamental liberties accorded by the Federal Constitution to all citizens, including the Muslims of Kelantan. It would wholly undermine the constitutional arrangement of this nation and irreparably damage its basic structure. 

If this is what the Private Members bill seeks to achieve, then it is clearly misconceived. Leave aside concerns about the basic structure, such an effort would be tantamount to an attempt to amend the Federal Constitution. In the ordinary course, this would require a majority comprising two-thirds of all members of both Houses of Parliament. 

As I understand it, private members bills are not treated as matters of priority. I cannot recall when we last heard of one being debated in Parliament, they are pushed to the end of the list and called up only on the completion of government business. Chances are that the proposed bill would never see the light of day.

The political climate is however murky, and extremism appears to be lurking on the fringes. A declining economy, continuous emphasis on race and religion and an ineffective education system have collectively served as an incubator for a reactionary mindset amongst a large number of Malaysians.  I am concerned that desperate ambition may make an alliance with PAS on this subject seem acceptable to UMNO. 

If so, and I hope it not to be the case, then it cannot be emphasised enough that the context make this a matter of great seriousness. The implications are tremendous. 

This is not about Islam, or being anti-Islam. I do not think it open to anyone to suggest that the legal framework of this country has done anything other than to serve and promote the interests of the religion. Muslims in this country have every resource at their disposal to profess and practice their faith. 

Rather, this is about standing by a shared commitment that we undertook in 1957 when we declared ourselves citizens of an independent nation.

Malik Imtiaz Sarwar is a practising lawyer and the Immediate Past President of the National Human Rights Society of Malaysia (HAKAM). This comment is dedicated to the memory of the late Karpal Singh who fearlessly and untiringly defended the basic structure of this nation

Friday, April 25, 2014

Tribute to Karpal Singh

(I was privileged to have been invited to speak at the memorial event held in honour of the late Karpal Singh on 24th April 2014)

Allow me to begin by expressing my heartfelt condolences to the family of the late Mr Karpal Singh. 

Mr Karpal was a close friend of the family. 

I grew up with his children, became their schoolmates in secondary school. First Jagdeep, a year below me, then Gobind, Ram, and Sangeet. Mankarpal was a little too far behind. We treated each other’s houses as our own. We were close enough for our respective mothers to scold us all. There was no discrimination. I describe this to you not as a mark of distinction, or a source of pride, but rather as a means to say that the man I came to know, and love dearly, was always simply Uncle Karpal.

As a young boy, he was a towering presence. Larger than life. That man on the posters, on the back of the jeeps, vans and lorries that carried him on his election campaigns. The walls of the boys’ rooms were filled with cut outs of his exploits, the Lat cartoons that he was quite regularly featured in. His was that comforting presence that, often absent, was nonetheless cherished, even if it involved some of the strangest pranks. In him, we had an ally, not just someone who would protect us from the wrath of our mothers when we created trouble, but someone who would quite happily get involved in the mischief we were brewing if he had the chance.  

Curiously, it seemed the like the most normal thing in the world. This world-class advocate, fearless defender of human rights, parliamentarian, to be getting wholly involved in the childishness his sons and I were more than happy to engage in every chance we got. He was just the coolest person in my view. 

Maybe it was because we, I, didn’t quite understand the true nature of events that were unfolding. Those became apparent in 1987. I was in Singapore for my A Levels when he was detained.

I knew by then that I would become a lawyer. I knew too that I wanted as much as possible to be able to fight the causes that I believed in. It’s only with his passing that I have come to realise how much he had influenced that choice. How much of a role model he had been.  

I would like to focus on Karpal the lawyer.

I spent some time today meandering through the list of reported cases that Karpal handled. There were almost a 1000 according to the Current Law Journal database. His achievements, and it did not matter whether he won or lost the case, that was decided on the facts, he more usually than not, won the point of law, were like a road map to the evolution of criminal and constitutional law in the country. The right of accused persons to counsel, to the principles underlying the granting of habeas corpus, the standard of proof in criminal cases, the powers of the monarchs in the constitutional framework that governs us, the democratic underpinnings of our electoral system, the fundamental liberties of citizens, these and many other principles he helped clarify through the courts, signpost our nation’s journey through the four plus decades that he was a member of the Bar.

It did not matter that he was constantly beseiged, in one way or the other. It did not matter that the disappointments were many. He held an unshakeable belief in the validity of the system, its value. He had faith in our constitutional system, and measured his value by how he could contribute to that system as a lawyer. In all the tributes from lawyers and judges that have poured in since his untimely passing, the narrative has been one of a ethical, gentlemanly advocate who was skilled and appreciated the nature of the adversarial process.

As I read through his cases this afternoon, I was humbled. The practise of law in this country has become more of a challenge with each passing year. More increasingly, those of us who appear in the courts ask what value we bring to the process, to our clients. But challenging as it is for us, was it less challenging for those who preceded us? Karpal had to face operasi Lalang, the constitutional crisis of 1988 and its terrible impact on the judiciary and the legal system, the 1998 trials of Anwar Ibrahim, the scandals that the V K Lingam RCI brought into focus. He was unfaltering, unwavering in his commitment to his duties as lawyer, citizen and statesman.

It does not mean that he was not frustrated. In the last few years, I began to spend much more time in the appellate courts. There, lawyers spend many hours waiting to be called up. It gave me a chance to talk to him, lawyer to lawyer, though in all honesty, it was difficult not to revert to that fidgety child he probably remembered, and thought of, me as. But the one thing that came through consistently was that we could not give up. We had to soldier on for the betterment of the profession, the nation.

It reminded me of what Raja Aziz Addruse, another towering Malaysian, used to say. We have to keep on knocking our heads against that door. One day, it will open, and some light will shine through.

That is the legacy that Karpal left us.  That is the sacred trust that we carry in his memory. He asked for nothing and gave of himself wholly. 

Let me end with an image painted in words by William Blake.

Tiger, tiger, burning bright  
In the forests of the night,  
What immortal hand or eye  
Dare frame thy fearful symmetry?

Farewell, Tiger of Jelutong.


Sunday, March 23, 2014

A different paradigm

I have been finding writing my monthly opinion piece an increasingly challenging task over the last year. It is not for a lack of material; this country is a veritable goldmine when it comes to things to write about, especially in a column on the rule of law. 

In just the last two weeks, we have seen Anwar Ibrahim convicted of sodomy and sentenced by the Court of Appeal in a manner that has raised some eyebrows (while glasses have been raised in other quarters, I am sure), and Karpal Singh sentenced to a fine of RM4,000 for saying something which, it would appear, can only be thought of and done (but not spoken of) after a hearing in which the prosecution demanded that the court impose a deterrent custodial sentence on the wheelchair bound septuagenarian for his being a threat to the institutions of this country. Additionally, MH370 disappeared in circumstances which almost everyone but the Malaysian government is describing as questionable, and a Deputy Minister is reported to have described non-Malays as being less sensitive to the rape of their children. Marquez or Llosa could not have asked for better material with which to paint their caricatures of the banana republics that were often the focus of their writing.

The truth is evident, I think. We have plummeted as a nation to a level of intellectual and moral bankruptcy that is as staggering as it is banal. It seems that we are mired in the political schemes of an elite that no longer cares what others think of it and which believes it is entitled to act in its own interests over everything else. Were it not the case, the Government would be acknowledging that the nation is being brought to its knees, and is staring in the face of potential sectarianism, by the self-serving policies that it continues to impose on Malaysians. 

It can, and probably will for as long as it is able to, continue to delude itself into believing that it is doing more than paying lip service to the legitimate expectations of all Malaysians to social security. Reality however has a tendency to impose itself in the most inconvenient manner. 

For instance, who will provide for the thousands of unemployable Malaysians who have been churned out by academic institutions of dubious value that the regime continues to defend against criticism. If Malaysian universities are not getting into the top ranks of academic institutions internationally, is it not obvious that they are not being managed in a way that they need to be? Would it not be better to address the real problem rather than deflect the issue by blaming everything but what really needs to be blamed? It may be that Malaysian leaders have over the years have been hardwired to think and act in that way. How else can one explain the Defence Minister retorting: “There is only confusion is you want to see confusion” to suggestions from the international media on MH370. 

What happens when racial policies have left the institutions in the hands of persons simply not qualified or competent to act in a manner their roles require, if that has not happened already? None of us would put ourselves in the hands of a cardio-thoracic surgeon who was not qualified and sufficiently experienced to do what he or she had to do. And yet, the Government continues to do just that with the nation. A cursory glance at the institutions of state would reveal that we do not, as a rule, have the best people for the job in the institutions of the state (this is not to say that all those in positions of leadership are not qualified or competent). I think the Government would be hard-pressed to say otherwise. And yet, these individuals are defining and implementing policies that will have a tremendous impact on the future of this country.

The point is that all of this has been said before. It has become an overarching theme in general, at all levels and in varied forms. Public discussion or agitation of these matters appears to have had little or no effect. Attempts at shaming our leadership have been met with stoic indifference. Efforts to engage in critical discourse have been skewed. In the meanwhile, business carries on as usual. 

It seems therefore that the political elite operates in a completely different paradigm, one in which the notion of subordinating personal interests to those of the community is wholly repugnant. It has perhaps been foolish for us to think or expect otherwise. 

For all that it promises that paradigm is seductive; wealth, influence, power and all that these things bring with them. For some, if not many, these are highly relevant considerations, particularly so in a society that has become ever more obsessed with material gain. Others, sickened by what it is that this country has become, have left or are planning to.

What purpose then does it serve to continue to highlight the deficiencies of the system, or to propose reforms? These efforts are only meaningful if Malaysians as a whole accept the fundamentals as being of universal application, which one system of governance applies equally to all of us, and not selectively.

It is true that the state of affairs in this country has now been brought under international scrutiny by the tragic disappearance of MH370. Describing Malaysia as “an ethnically polarized society where talent often does not rise to the top of government because of patronage politics within the ruling party and a system of ethnic preferences that discourages or blocks the country’s minorities, mainly ethnic Chinese and Indians, from government service”, Thomas Fuller of the New York Times recently noted that “worldwide bafflement at the disappearance of Malaysia Airlines Flight 370 has challenged the country’s paternalistic political culture and exposed its coddled leaders to the withering judgments of critics from around the world.” 

Judging by the response from our Government, it appears that very little will change. 


(First published in The Edge, 22nd March 2014)

Sunday, October 20, 2013

A matter of law, not policy

It looks fairly certain that the decision of the Court of Appeal on the use of the word “Allah” in the Malay version of the newsletter of the Catholic Church, Herald, will be appealed to the Federal Court. It is improbable that the apex court will deny permission to appeal, considering the obvious constitutional implications of the matter.

It is obvious that the Federal Court will have much to consider. Amongst the criticism leveled against the Court of Appeal is the suggestion that the Court had made a policy decision, as opposed to a legal one. Considering the reasons advanced by the judges concerned for their decision, there is substance to this complaint. 

The Court of Appeal was required merely to determine whether the High Court judge had arrived at a decision that was consistent with the relevant legal principles. That decision related to only one question; whether the Home Affairs Minister had exercised his powers in a manner that was justified in law in imposing the condition that the word “Allah” was not to be used in the publication. And while the Court of Appeal would have been right to interpret such law as it was required to for the purpose of deciding whether the High Court judge had erred, it ought not have gone so far as to effectively develop a legal framework for the protection of Islam. 

Settled principles of law dictate that the courts are not to substitute the decisions of administrators with those of the courts. All that the courts can do in affording judicial review is to consider whether the administrator concerned, in this instance the Minister, had adopted the correct decision making process, and whether the administrative decision challenged was reasonable having regard to the circumstances as they stood at the time the administrative decision was made. These legal constraints were in fact recognised by the judges of the Court of Appeal who discussed them in their respective judgments.

In this context, all that the Court of Appeal ought have done was to enquire into the reasons advanced by the High Court to quash the decision of the Minister. These reasons ultimately centered on one primary conclusion; that the Minister had no reasonable basis on which he could objectively conclude that the use of the word “Allah” in the Herald would be a threat to public order.

A review of this conclusion by the Court of Appeal would have entailed an objective consideration of the basis of the Minister’s decision, that is the factual considerations that the Minister took into account at the time he made the decision, with a view to determining whether his decision was one that any reasonable person in the Minister’s shoes would have made. For this purpose, negative reactions on the part of the public to the decision of the High Court were not relevant, it being a matter of established principle that the popularity of a decision of the courts is not the yardstick by which the correctness of that decision is to be measured. Were it otherwise, many a litigant would arrange for public controversy in order to gain a foothold in the appellate courts.

It must be appreciated that at the most fundamental level, the complaint of the Catholic Church was that the condition impacted on the right of the Church, and the members of its congregation, to express themselves fully. And while it is tempting to characterise disputes of such a nature as concerning the freedom of religion, this was really a case about the freedom of expression. From a constitutional standpoint, it is established principle that all Malaysians have the right to say what it is they want save where their right to do so has been limited by law on grounds of national security and public order. Such law must however be reasonable, and the restraint on expression limited to only what is essential to achieve the aim of the law. These constraints apply equally to any administrative action sanctioned by law.

It is telling that the current Deputy Home Minister has sought to justify the decision of the Court of Appeal by limiting it to publications by the Herald. And while the Deputy Home Minister may have a point, the case concerns only the permit to publish the Herald and nothing else, the assertion that the word “Allah” can still be used in Malay language bibles in East Malaysia wholly undermines the position taken by the then Home Minister that the use of the word by the Herald would result in public disorder. The Church has after all accepted that the Herald can only be circulated to the Church’s congregation.

Seen in this light, there was no necessity for the Court of Appeal to enquire into, and conclude on, what was integral to the Christian faith. It is not for the courts to define what is and what is not essential in any faith and I can see no reason for any superior court in this country to ever take such an extraordinary step. Not only is such a course wholly inconsistent with the various dimensions of the constitutionally guaranteed freedom of religion, it is unnececessary. 

Any concerns about the intersection of the free practice of religion and public order are addressed by the constitution itself. The freedom of religion is expressed in a manner that permits the legislature, and consequently the State, to encroach where required to by the dictates of public order. It is unnecessary for the courts to determine whether a particular practice is essential to a particular faith, or not, in such cases as the constitution focuses attention on solely the maintenance of public order. The courts are as such only required to consider whether a particular course of conduct on the part of the administration is justified by reference to the public order concerns asserted.

Even in those limited cases where a court is called upon to determine a question of fact that relates to the practice of religion, and in my experience this occurs exclusively in the Islamic sphere as, unlike the other religions of this country, the Islamic faith is regulated by law, the Courts only go so far as interpreting codified law, often with the assistance of experts.  For instance, in two matters that came before the Federal Court several years ago, it was contended that the legislature of the states of Terengganu and Selangor had acted without power in creating certain offences. The Federal Court availed itself of the views of experts in order to determine what the phrase “precepts of Islam” in the constitution meant. Similarly, in the early 1990s the Penang High Court took into consideration a fatwa in determining whether a person had died a Muslim.

It is unfortunate that the Court of Appeal felt it necessary to go as far as it did. Respectfully, the court appears to have substituted its own decision for that of the Minister, albeit to the same end. This was unfortunate, not least because the decision has fueled fears concerning efforts to establish the primacy of Islam in the public sphere and the implications this has. It has also overshadowed the emphatic declaration by the Supreme Court in 1988 that the public law of this country is secular.

Stripped of political implications, the case is one that is easily determined. It was made controversial by certain quarters for their own purposes. Regrettably, in failing to recognise the controversy for what it was, the Court of Appeal may have inadvertently laid the ground for the further machinations of those who would divide this nation.

It is my sincere hope that the Federal Court will appreciate that the case was only ever about whether the “Allah” condition was warranted, reasonable and accorded with the constitutional guarantee of free expression. Whatever the decision the court ultimately arrives on this narrow issue, it is imperative for the court to deal with the highly divisive policy dictates of the decision of the Court of Appeal. It can do so by underscoring that religion is a personal matter and theological debates cannot, and must never, be brought into the courts. 


(First published in The Edge on 19.10.2013)

Sunday, September 15, 2013

And so it has come to this

Another merdeka day has come, and with it an opportunity to consider where it is that we are at.

Current affairs points to it having come to this; ideologues, of the totalitarian kind, saying things of very little value or sense in as loud as manner as possible, content in the knowledge that in Malaysia those who bray as brashly as possible and for the longest time usually win the day. And the reality is that very few are capable of doing that and, were they to try, would fail at the outset. For them (meaning most of us in this sadly undermined nation that has been held to ransom by its politics), some things are just too ridiculous to say.

Not for those who hold sway over the airwaves and the media it would seem. For them, it is perfectly normal to act as if the laws of this country, in particular the Federal Constitution, do not apply any more, except when convenient to them.

For them it does not appear to matter that the supreme law we were entrusted with in 1957 guarantees us a representative democracy in which a very clear line is drawn between the government of the day and the nation we live in. In this land, which belongs equally to all of us, we are allowed to express dissent or dissatisfaction with our elected government without that amounting to a lack of patriotism. We are allowed to say, if we think so, that those who claim to lead us are fools who do not have their minds wrapped around the issues that so fundamentally affect us in a way that circumstances required, be they shootings by the police, or the potential economic meltdown that appears to be staring at us over the horizon.

For them, nation and elected government are one and the same. Criticism of one is the other. Hence, we are facing the possibility of having to compulsorily fly flags and stand up when the national anthem is played in cinemas. All in the name of a misguided notion of what exactly I am not sure. As I see it, no one has expressed any disloyalty to the nation, in as much as many are critical of the government of the day.

The nuances are however obscured. Legitimate criticism is labeled sedition, even as those who label say some of the most scandalous things imaginable. Questions are taken as threats. Mistakes are treated as if they are declarations of war. To these quarters, the nation is under serious threat, under siege in the most terrifying way; we are about to explode, disintegrate, and be annihilated. If they are to be believed, the sky is about to fall on our heads.

For them, those who do not like the way the Government is doing things and say so undermine the stability of this nation and, to borrow an expression, should leave the country. Otherwise, they should be deprived of their citizenship. This, they suggest, is to stop any further undermining of the nation.

This seems to me to be a ridiculous state of affairs, one calling for intervention on the part of the Executive or the agencies of state.  The only thing that appears under siege, and I say this with the greatest respect to the freedom of those concerned to say what they think (and in the belief that the rest of us are equally entitled to say what it is we feel), is the seeming fragile personalities of these ideologues. So overwhelmed are they by the shifting sands of the Malaysian socio-political landscape that they have been taxed into a state of intellectual paralysis.

Islam is not, and could never be, under siege. It is the religion of the majority of the citizens on this country. It has been given legal status in a way the other major (or minor) religions of this country have not. Its administration is effected through a bureaucratic apparatus that, I think, is unrivalled anywhere else in the world.

The Malays, howsoever one defines the term (this is a vexed question that comes up from time to time), constitutionally or anthropologically, are not under siege. They form the majority of this nation. Their status has been recognised by several constitutional provisions, one of which provides a pathway to affirmative action. 

Malaysia is not under siege, except perhaps by those who insist on thrusting their perverse views of what it is they aspire to without regard to the sensitivities of others (those from all backgrounds) or the established legal framework. We are at peace with our neighbours, and no sovereign nation is threatening to invade us. We have a defense budget that ensures that we have the means to protect ourselves and we have friends who will come to our aid if need be.

Yet, despite this obvious state of affairs, the Executive has worryingly chosen to avoid involving itself. It has not sought to curtail, either by open dialogue with these ideologues or otherwise, this alarming trend. Further, from a third party perspective it seems like the agencies and institutions of state do not seem to be too concerned either. They appear to be relatively content with this alarming state of affairs, for them it is business as usual. The implications are of grave concern, some quarters may well believe that these ideologues may be justified in what they are saying or doing.  This will undoubtedly resulted in an undermining, some might say further undermining, of the system.

It will also serve to distract us from the real threat to this society, a lack of competitiveness that is the product of a administrative framework that has been tolerant, even accepting, of corruption, and that has been shaped not so much by reference to merit but rather a mélange of cronyism, racial preferences and politics.  Entrenched in this is a public service organization, and this includes the education system, that is struggling to remain relevant in the globalised world.  This lack of competitiveness has been the subject of recent discussion amongst a range of persons regionally who have an interest in this nation and its continued well-being.

Curiously, this is not something that the ideologues feel too concerned about. 

So, where does that leave us this merdeka? With much to think about, I feel. The, any, government of the day must start asking some very difficult questions, and look beyond its political self-interest. I would be surprised if it was not already doing so. The nation is floundering and is in desperate need of statesmanship. Parochial perspectives that ignore the fundamentals of this nation are, and will continue, to do much damage. The incumbent government must step up and start acting responsibly as a government of all the peoples of Malaysia.

And it can start by explaining to us, not with slogans or fancy advertisements but with concrete and decisive action, why it is that Malaysians have before them the endless possibilities that it seems to think we have before us.


(This comment was first published in The Edge on 2nd September 2013)

Wednesday, May 22, 2013

Of confrontation and reconciliation

And so the General Election has come and gone and the Barisan Nasional has been returned to power at the Federal level with a reduced majority.  Concerns that the election process were unfair from the systemic standpoint brought into focus by the Coalition on Free and Fair Elections (Bersih), and would become even more so during on election day, have spiraled into unequivocal assertions of wholesale electoral fraud. The extent of the matter is such that even the international press has felt obliged to air concerns on the part of some quarters that the elections were hijacked. 

The Pakatan Rakyat thinks so, as do a sizeable number of Malaysians, enough for several rallies on the subject to have been more than convincingly attended by Malaysians. The anger and disappointment being expressed goes beyond the normal frustrations of a voter whose candidate was not returned; it would be foolish to characterize it as such. It cannot be overlooked that, as rhetorical as it may seem, some have denied the legitimacy of the current government.

Much of this anger is directed at the Election Commission whose duty it is to ensure that all election officers shall act with fairness, impartiality and in compliance with the Federal Constitution. Some have asked for the Election Commission to resign. Lim Kit Siang, whose DAP has the second largest block of parliamentarians, has called for a bipartisan parliamentary committee to be put in place to recommend a replacement Election Commission.

No matter how one looks at it, it is manifest that the purity of the electoral process in the 13th General Election is severely under question. It requires more of a response from the Government that the sweeping dismissiveness we have seen thus far. Bersih, to public acclaim, has initiated the establishing of a “People’s Tribunal”. Rather than rejecting as the whimsy of a group of un-subservient non-governmental organisations - and it is prudent here to note that Tun Mahathir initiated a similar tribunal on war crimes not too long ago on the basis that the criminals, as he saw them, would not be brought to justice by a system they were very much a part of – the Government should view the idea as one that it should support. 

For one, it is in line with the national reconciliation that the Prime Minister promised on election night.  More fundamentally, the Government should support the idea – perhaps by advising the Yang di-Pertuan Agong to establish a Royal Commission on the matter – for it being a means to allow the truth to emerge, and to that end, a conduit by which the frustrations of a sizeable section of the community can be channeled. 

It would not be sufficient to point to the courts, as some have done, as a means of addressing the matter of electoral fraud. For one, in as much as the Chief Justice may be trying to rebuild public confidence in the Judiciary there is still some way to go on that journey. There are still traces of the suborning of the institution by the Mahathir Administration, not least the amendment to vital provisions of the Constitution, as is the lingering perception that the courts may not be as cut off from the Executive as they should be. It is of no value to say, as one UMNO parliamentarian did recently, that Anwar Ibrahim or other members of the opposition seem to have no problems with the courts in light of his utilizing the judicial process to gain redress for defamation.  That is a facile point of view that does not do justice to the complexities of the subject of judicial independence.

For another, in the minds of many, the perceived electoral fraud appears to have been coordinated and to that end had a systemic nature to it. Many point to the revelations that have sprung from the on-going Royal Commission on Project IC to underscore their concerns that foreigners voted in the elections. If true, this necessarily involved state actors who may have well abused powers in doing what they did. This is a matter that the Election courts may not be in a position to address as fully as the situation warrants.

The Election courts are creatures of statute. They are limited in the scope of their scrutiny. In part this is due to a restrictive approach that the apex court has over time laid down. This requires such courts to act strictly by reference to the legislation that circumscribes such courts, rather than the underlying purpose of the law. As such, though the courts recognize the need for due emphasis to be given to the overriding principles of democracy, and the need to protect the purity of the election process, they are often times left powerless to deal with what might reasonably be perceived as electoral impropriety by an unduly strict interpretation of the legislation imposed on them by the apex court. 

This approach has left lawyers and petitioner having to navigate through a minefield of procedural obstacles that have ultimately drastically reduced the number of, otherwise potentially, successful challenges. The strictness of this approach has, in my respectful opinion, undermined the right of the voter to a free and fair election and the associated right of meaningful access to justice. As was observed by Justice David Wong Dak Wah, now Judge of the Court of Appeal, in 2008:

“In my view if a 'strict observance' approach is adopted by the courts, those rights will definitely be diluted. Take the case of the right of access to justice. If a 'strict observance approach' is adopted, no citizen will be able to act for himself or herself to file an election petition because surely as night follows day the petition would be knocked out by preliminary objections. Further if the respondents' contention is sustained, the petitioner will have to go through the relevant provisions of the Election Act, Election Offences Act or Election (Conduct of Elections) Regulations 1981 with a fine tooth comb and put the relevant provision in the petition. That would be a task which a petitioner will not be able to fulfill. I say that for the simple reason that day in day out in our courts, judges, Sessions Court Judges or Magistrates have seen it fit to amend charges in criminal cases when they held that the charge had been wrongly framed by the prosecution. In those criminal cases, the charges are drafted by qualified lawyers and yet they had been found to be wrong. So in election cases, what chance does a person who wants to file an election petition himself or herself have? My answer would be next to none and that would in my view make the constitutional right of access of justice an illusionary one. The remedies of law should be accessible to the ordinary people and laws should not be interpreted in such a manner that only rocket scientist can access remedies in the law as that cannot ever be the intention of Parliament.” 

Having regard to the nature of the complaints made public thus far, challenges would in effect require the mounting of cases of either corrupt practice or electoral offences. This would require the petitioners to state from the outset, with great specificity akin to the framing of a criminal charge, the exact wrongful act done, the time and place of the wrongdoing, and the persons involved. The nature of things may impede that process. 

Some may recall that Zaid Ibrahim’s election petition in respect of the by-election for the Hulu Selangor parliamentary constituency put in issue amongst other things, Najib Razak’s promise at a rally that the Government would donate RM3 million to a school in the constituency if the Barisan Nasional candidate were returned. Though the promise was a matter of public record and the subject of intense national discussion, the petition was struck out as Zaid Ibrahim had not pleaded in the petition itself the identity of persons in the hall at the time the promise was made. Zaid had the information and was ready to subpoena the persons concerned at trial, but never made it that far. His well-intentioned desire to protect the individuals cost him the opportunity.

This is not to say that the aggrieved should avoid the courts. They must seek recourse and present their respective cases as best as they can. I doubt however that the court actions will in themselves serve to assuage the discontented amongst us.

It would equally be irresponsible for the Government to continue to allow attempts to divert attention from the problem by means of racist and extremist rhetoric. This is going to do great damage to the nation, and deepen fissures that highly divisive policies, and an extremely racialist election campaign that the Barisan Nasional unashamedly took credit for, have created. It is truly a sad state of affairs that Malaysians in this time and age are being subjected to this kind of venom. And it says much about the Barisan Nasional government that Malaysia remains one of the very small group of countries that have yet to ratify the 1966 International Convention on the Elimination of All Forms of Racial Discrimination. 

In the same vein, it would be foolhardy for the Government to resort to strong-arm tactics involving the suppression of peaceable assembly and expression. This would only serve to inflame the situation.

The way forward for the Government on this issue is self-evident. It needs to confront the subject and deal with it in a transparent and accountable manner. This obvious truth makes it equally plain that Najib Razak may have no choice in the matter.


(This comment first appeared in my 'Rule of Law' column in The Edge on 18.05.2013)

Tuesday, May 7, 2013

Resolving doubts about GE13

It is apparent that a sizeable enough number of Malaysians harbour doubts about the validity of the declared outcome of the 13th General Election in light of numerous complaints of electoral fraud. Given the possibility of fraud having occurred, possibly on a large scale, it is simply not open to Malaysians to accept the analysis of results now offered to them by reference to voter sentiment. This is more so for the fact that the popular vote was in favour of the Pakatan.

In this context BERSIH’s intended Peoples’ Tribunal is a welcome suggestion. It will allow Malaysians an opportunity to present proof of electoral fraud, such as there is, and look to answering the question of whether the polls were hijacked, and if so, by whom. I look forward to hearing more details of the proposed initiative. Such evidence that may come to light would then provide foundation for further initiatives.

The National Human Rights Commission (SUHAKAM) should facilitate the enquiry. Vested with statutory powers, it is empowered to do so in a way that BERSIH is not. It would be useful for persons with proof of fraud to lodge complaints directly with SUHAKAM.

I hope the Barisan Nasional Government of the day, and the institutions of the State will view this process as necessary, not least for the fact that it will allow those Malaysians who feel aggrieved, rightly or wrongly, to channel their frustrations in a constructive manner. To that end, they should look to facilitating the enquiry as well.