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Friday, December 21, 2007

Lost In Transition?

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

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

We all suffer from their impact.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Happy holidays to all.


Wednesday, December 19, 2007

BERSIH led by the opposition?

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Tuesday, December 18, 2007

Race And The Poverty Gap

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

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

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

Much like it is in Malaysia.

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

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

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

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

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

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

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

There is no magic solution, a perfect answer.

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


Friday, December 14, 2007

In Solidarity

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

('Mental Fight', Ben Okri)

HINDRAF 5: ISA Detentions Side-Step Justice System

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

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

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

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

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

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

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

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

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

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

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


Friday, December 7, 2007

Apppointment Of President, COA: Await Outcome Of Enquiry

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

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

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

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

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

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

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

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

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

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

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

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

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


Free The 31

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

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

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

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

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

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

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

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

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

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

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

Free the 31.


Tuesday, December 4, 2007

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

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

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

(Naomi Klein, 'The Shock Doctrine')

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

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

Monday, December 3, 2007

Lingam Video: Who else for the Royal Commission?

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

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

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

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

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

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

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

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

Malik Imtiaz Sarwar
President, HAKAM

Monday, November 26, 2007

Considering The HINDRAF Campaign

Dr Kumar of Persatuan Sosialis Malaysia has written a well thought through comment on the HINDRAF Campaign. I believe that it sets out the primary issues that should be given consideration when we consider the campaign and the events of 25th November 2007.


The Hindraf Campaign: A Critique – Dr. Kumar

Thousands of Malaysian Indians from all over the country are responding to Hindraf’s campaign. SMS messages are being amplified and sent out by the hundreds, petition forms are being signed, funds have been collected, and there is a massive mobilization to present a memorandum to the British High Commission on Sunday 25th November 2007. All this highlights the extent to which Malaysian Indians have been neglected and marginalized by the policies of the Barisan Nasional government. It shows the level of frustration and resentment within the community.

Many friends and contacts have been asking what is the Parti Sosialis Malaysia’s stand on the Hindraf Campaign? Why is the PSM not organizing buses to support the program on the 25/11/07? The main points of the PSM stand are outlined below –

1. It is undeniable that Indians in Malaysia face racial discrimination.

- difficulty in getting government jobs;

- lack of special programs for Indian students from poor backgrounds;

- the poor state of many Tamil Primary Schools;

- absence of laws to protect the estate community when they are evicted in the name of development; Ditto for the peneroka bandar;

- insensitive handling of Hindu Temples which are demolished to make way for “development”;

- extremely insensitive handling of cases of Indian individuals caught in “inter-faith” situations for example Moorthy, Subashini, and others;

- the negative profiling of Indian youth by the police and other authorities as “gangsters” and the harsh treatment of these youth when caught by police;

These are just some aspects of the reality of Indians in Malaysia. Indians are made to feel that they are second-class citizens, and after 50 years of Merdeka they are beginning to resent it more and more!

2. Ethnic based mobilization is relatively easy to do. Malaysian society has been tutored in racial politics by the BN parties (as well as by some opposition parties also) for the past 5 decades. The vast majority of Malaysians think in ethnic terms. However ethnic based mobilization of Indians will not be able to overcome the racial discrimination that Indians face. At this point Hindraf is asking for

- Cessation of the Bumiputra policy

- Institution of affirmative policies for Malaysian Indians

- Monetary compensation from the British Government for “leaving us in this mess”!

These are emotive issues, and it is obvious that many Malaysian Indians have responded to them. But is even remotely possible that they can be attained by ethnic based mobilization of the Indians who make up only 7% of the population?

3. We should not forget that apart from racial discrimination, the majority of Indians face economic discrimination because they are workers in a system that favours the businessmen and the capitalists. About 70% of Malaysian Indians are workers. The problem they face as workers include

- low wages. In many factories the basic pay in RM 18 per day, which works out to RM 468 per month.

- There is no job security. Outsourcing, the widespread use of contract workers, and the easy availability of migrant workers all weaken the bargaining position of Malaysian labour.

- Labour laws are being tightened and being made more pro management;

- Low cost adequate housing is difficult to find.

- Prices of goods is rising faster than wages! Petrol, toll and now flour.

- Basic services – health care, education, roads, water - which used to be heavily subsidized are now becoming increasingly expensive;

The problems listed above are also experienced by workers of all races in Malaysia – even the Malays, who are the beneficiaries of the Bumiputra policies. Only about 20% of Malay workers have jobs in government. The remainder have to work in the private sector where they too experience economic discrimination as workers in a capitalist economy. Malays workers are not exempted from the problems of low wages, job insecurity, rising costs of basic services, etc.

4. It appears that that some sections of working class Malays are beginning to question the Bumiputra policy which has benefited the UMNO-putra and their cronies far far more than the average Malay worker. Consider the following -

- the Mat Rempit phenomena. Isn’t this, in part, an expression of the frustration and resentment of ordinary Malay youth who are having difficulties finding and holding jobs because of the low-wage and migrant labour policies of the BN government;

- more than 50% of the 40,000 Bersih demonstration on 10/11/07 was made of Malay youth who were not from PAS or KeAdilan. They turned up because they are fed-up with the government which is only helping a small sector of Malay elite.

- Anwar Ibrahim has been openly calling for the ending of the Bumiputra Policy which he claims only helps the rich UMNO politicians. He wants a new policy – the Agenda Baru - that is based on economic need and not on race. All poor Malaysians should get government help.

- PAS spearheaded the Protes Coalition which opposed the hikes in Petrol and Diesel prices. They are also active in the Coalitions against Health and Water privatization.

Anwar is an astute politican, and PAS does have close contact with the Malay community. Their articulation of such issues must mean that in their assessment, ordinary Malays are resentful of government policies that favour the rich.

5. The political choice facing Malaysian Indians is simple. Do we

1. mobilize ourselves as Indians to fight the Bumiputra policy and ask for affirmative action for Indians?


2. Work towards a working class coalition that fights for a better deal for all ordinary Malaysians irrespective of race?

In other words, do we use ethnic based mobilization or class based mobilisation to fight the present state of ethnic discrimination of Indians?

6. Obviously 1000’s of Indians have jumped into the Hindraf bandwagon of ethnic mobilization. But the support of large numbers does not necessarily mean that that campaign is in the long term interest of the Indians in Malaysia. Nor does it mean that it is likely to succeed!

The PSM salutes all those who have thrown off their apathy to stand up for their rights despite the threats being made by the BN government in the media. However, action for action’s sake is never enough. Action must be guided by the correct analysis, and this is where we differ with Hindraf. Though Hindraf leaders have made sacrifices, and have shown courage, we believe that they are inadvertently playing into the hands of the “enemy”. Why?

7. Who are the major beneficiaries of the Bumiputra policy? Surely people like Najib, Hishamuddin, Khairi and other top UMNO leaders must be very uncomfortable with growing perception among the ordinary Malays that the Bumiputra Policy has been abused to make a small group of Malays filthy rich – all in the name of uplifting all Malays. These UMNO leaders are also worried about the coming elections for the people are frustrated with price hikes and corruption. Ethnic mobilization on the part of Hindraf would provide them with the perfect opportunity to

- resurrect the “Ketuanan Melayu” issue. They could use Hindraf’s demands to abolish the NEP as an example of how “lebih” the Indians have become, and of the importance to band together under UMNO for race and country!!

- Use some of the gangster groups associated with UMNO to provoke a racial incident that will come very useful for BN in the election campaign period. The old BN argument that we have to vote BN to avoid another May 13!

8. This does not mean that the PSM is advocating not fighting back when Indians are evicted or when houses and temples are torn down. Not at all. The PSM track record on this is clear – we have gone to stand with the people facing eviction and bullying by developers or the government in many estates and Peneroka Bandar kampungs. But we never have generalized this into an ethnic issue for all the reasons listed above.

This local fight-backs must continue whenever any community is faced with bullying by developers or government. But national level mobilization should be of all ordinary Malaysians (from all races) and not of Indians only!

We hope these brief explanations make sense to you. Do not retire from the struggle! Just reorient it to make it multi-racial and fight for the justice of all the ordinary people of Malaysia!

Salam Berjuangan!!

Written on 24 November 2007

Sunday, November 25, 2007

The Personal Dignity Of HINDRAF Supporters

Judging by the report by Malaysiakini “Tear gas fired at defiant protesters”), it seems as if the attempt to impede the HINDRAF Rally has descended into chaos. The police have come down hard, its treatment ‘heavy handed’. Bar Council monitors have declared their unhappiness with the way the police are handling the matter.

From the report it would seem that even before 7.40 am, tear gas was fired into crowds at Jalan Ampang, KLCC and Batu Caves. At 9.30 am, tear gas was still being fired. It appears also that participants are being beaten, women and children not being spared.

The question is why. The police obtained an order allowing officers to arrest on sight (see Malaysiakini report “Cops obtain rare court order against HINDRAF”). If there are persons breaching the order then arrests should be made and, in fact, it appears that arrests have been made already.

The order DOES NOT authorize the use of force. I would go further, the order, in allowing for preemptive measures, lends against the use of force.

And, of course, the question that begs an answer is why stop the rally in the first place. The question of a permit, or the lack of one, is a convenient and self-serving one.

How does this rally, planned for a Sunday morning, differ from the one organized by UMNO Youth during Condoleeza Rice’s visit to Kuala Lumpur on a Friday afternoon? That demonstration took place in the same vicinity, also had fiery and inflammatory speeches and was directed to a person or organisation other than the Malaysian government. That demonstration was aggrandized by the local media, with photographs of a defiant Khairy Jamaluddin, in arm sling to boot, gracing the leading pages (if not the front pages) of the mainstream print media.

It is readily obvious to all that despite the great show, there was never any intention on the part of the police to use force where the UMNO Youth demonstration was concerned. None was in fact used. The contrast with action taken where the HINDRAF Rally is concerned is manifest.

The UMNO Youth demonstration was as much about personal dignity as the HINDRAF Rally is. For, at the heart of the HINDRAF cause is a serious complaint about the marginalizing of the Hindhu community and a plea for recognition of the plight of this particular marginalized community.

I do not necessarily agree with the manner in which HINDRAF has decided to espouse its cause. Though I recognize the point HINDRAF is making, I believe that we should be fighting for the cause of all underprivileged and marginalized Malaysians. Having said that, the apparently inconsistent stance of the Police and the Government where rallies are concerned can only lead one to a conclusion that there may be some truth to what HINDRAF is saying.

I offer a prayer for those on the ground now and brace myself for the possibility of great violence.

The police should have known better than to use force to turn away people who have risen to claim what little dignity circumstance has left them with. Being at the point where one is compelled by sheer force to make a choice between standing firm on one’s principles, and in one’s beliefs, or turning away is not an easy one. Having made the decision to march this morning, many, if not all, would have made the decision that life was not worth living unless one could stand with dignity.

This is a decision that no one, not even the Police, is in any position to challenge.


Saturday, November 24, 2007

HINDRAF Rally: 25th November 2007

The National Human Rights Society (HAKAM) is gravely concerned at the refusal by the Government of Malaysia and the Royal Malaysian Police to allow for the intended peaceable assembly of persons supportive of the cause espoused by the Hindhu Rights Action Force (HINDRAF) this Sunday. HAKAM is equally concerned at the measures aimed at preventing HINDRAF from continuing with the intended assembly including the arrest of three of the principal organizers and the procuring of a restraining order at large against all persons intending to assemble in support of the HINDRAF cause.

HAKAM believes that it is the right of every Malaysian to express his or her views in peaceable manner, no matter how unpopular those views may be. The right to assemble peaceably is a right guaranteed under the Federal Constitution. Though the Government and the Police are charged with the responsibility of maintaining public order, they are equally responsible for ensuring that citizens are free to express themselves. Peaceable demonstrations are universally recognized as legitimate means of expression. There is nothing to suggest that the HINDRAF assembly is intended to be anything other than a peaceable demonstration.

If the Government or the Police are concerned that there are elements that may lead to public disorder, then it is incumbent upon the Police to identify those elements and protect those who wish to assemble peaceably from them. Preventing HINDRAF and its supporters from assembling would only facilitate the purpose of those who wish to impede HINDRAF and its supporters. This would not only be unreasonable but would also render illusory the rights of assembly and expression.

In this vein, the preemptive measures should not have been taken. The situation did not warrant the obtaining of a preemptive restraining order.

Further, HAKAM deplores and condemns the invoking of the Sedition Act by the authorities. HAKAM views the Sedition Act as unconstitutional and as an outdated legislation that has no place in the modern progressive society that Malaysia is today. HINDRAF and its supporters have every right to express their dissatisfaction with the state of affairs even where such expression is not necessarily popular. Majority rule does not justify the denial of minority voices. The attempt to deny the minority voice in these circumstances only goes to reinforce belief that in Malaysia it is only the majority voice that matters. This is a belief that is unsupported in fact or law.

HAKAM urges the Police to allow HINDRAF and its supporters to assemble peaceably this Sunday and to protect them from untoward harm. HAKAM further urges the Police to exercise restraint and to not resort to force.

Malik Imtiaz Sarwar
President, HAKAM
24th November 2007

Wednesday, November 21, 2007

HAKAM Press Statement: Royal Commission Of Enquiry

The Royal Commission of Enquiry being established to enquire into the Lingam Video is one of crucial significance to the nation and the public interest. It should not looked upon as being merely a means of investigating the narrow issue of the Video and the involvement of V K Lingam in the promotions and appointments of judges.

When one considers the tenor of the conversation the person alleged to be V K Lingam is having, it is apparent that, if authentic, the Video has serious implications and ramifications as to the integrity of the administration of justice. The names of Tan Sri Vincent Tan, Tengku Adnan Tengku Mansor (who, if the Video is authentic, was a Deputy Minister at the time the Video was apparently taken, and is currently a Minister), Tun Dr Mahathir Mohamad, the Prime Minister at the time) and Tun Eusoff Chin (a former Chief Justice) were mentioned in a manner suggestive of a collaboration amongst these individuals on the question of promotions and appointments. Additionally, reference was made to the manner that the then Chief Justice, Tun Mohamed Dzaiddin, was approaching the question of promotions and appointments.

From the involvement of the then PM and the then Deputy Minister, and in view of the Government’s direct involvement in the promotion and appointment of judges, it is clear that the Government itself is embroiled. This is significant in light of numerous allegations against the Government for having attacked the Judiciary in 1988 and thereafter having interfered with the Judiciary.

These implications and ramifications as such pertain to, amongst others:
  • the manner in which judges were, and are, appointed and promoted;
  • interference by the Government in the process of appointments and prmotions beyond the limited involvement permitted under the Federal Constitution;
  • the involvement of external influences and factors, including those of a corporate or commercial nature, that had, and have, no bearing on the capability and integrity of candidates for appointments and promotions;
  • interference by the Government with the Judiciary directed at the outcome of the proceedings before the superior courts;
  • the possibility of partisanship and allegiance amongst some members of the Judiciary, such partisanship and allegiance having a bearing on the outcome of proceedings before the superior courts; and/or
  • the possibility that the practices revealed in the Video had continued in the period after the recording of the Video.
The terms of reference must as such be wide enough to allow for a consideration of the issues arising from these ramifications and implications. The need for a sufficiently comprehensive mandate has been made more pressing by the fact of the police reports lodged by V K Lingam’s brother, K.V. Thirunanama Karasu, that go to underscore the apparently inappropriately close relationship between V K Lingam and the Judiciary, The naming of other Judges in the said police reports and the nature of the allegations made strongly suggest corruption.

In view of the need for such a comprehensive mandate, it is evident that the persons appointed as Commissioners must be persons who are not only capable of fulfilling and discharging the very serious responsibility of such an effort. They must also be persons who, and who are seen to, have the necessary objectivity so as to ensure public confidence in the enquiry.

For this reason, it is self evident that that the following persons should not be asked to be members the Commission:
  • Any Chief Justice since Tun Abdul Hamid, including Tun Hamid himself;
  • Retired judges who served Tun Eusoff Chin, Tun Mohamed Dzaiddin and Tun Ahmad Fairuz;
  • Any judge currently serving as such;
  • Any person closely connected with the Government and/or who served the Mahathir Administration and/or the Badawi Administration or still serves. This would include former Attorney Generals; and/or
  • Any person who might be perceived to have grievances against the Government and/or the Judicial Administration in the period from 1988. This would include Tun Salleh Abbas and any of the members of the Judiciary penalized in the 1988 attack on the Judiciary.

Malik Imtiaz Sarwar
President, National Human Rights Society
21st November 2007

Wednesday, November 14, 2007

Al Jazeera On The BERSIH Rally

Yesterday, I found myself sitting in a studio at Al Jazeera with Dato’ Seri Nazri and Khairy Jamaluddin discussing the BERSIH 10-11 rally. Teymoor Nabili, the host of 101 East was kind enough to moderate. Needless to say, the discussion was lively and interesting.

I am informed that the interview will air over Astro, Al Jazeera English, 10.30 pm, Thurday (‘101 East’). It will then be aired throughout the week (the schedule can be found on line at the Al Jazeera web-site) and will also be available on line.


Note: Been informed that it is Channel 513

Forcing Accountability

(Speech delivered at Public Forum on "90 Days After The Auditor General's Report-What Next?" organised by Empower Pusat Janadaya)

90 Days After The Auditor General’s Report: Forcing Accountability

I would like to congratulate Empower for organizing this very important forum this evening. I would also like to thank Empower for having given me an opportunity to share my thoughts with you.

The Auditor General’s Report for the year 2006 is unique not because it details mismanagement of public funds but for the extent of the mismanagement reported. Unlike the reports of previous years that were relatively muted, Malaysians were confronted with an array of damning indictments concerning the way public funds had been misused and wasted. The revelations are shocking, not only for the fact that the wastage pointed to is not easily reconciled with the repeated declarations of budgetary constraints that we hear of even in connection with matters of crucial importance such as education and healthcare, but for the fact that they point to what appears to arbitrariness in the exercise of powers that go far beyond any permissible limits of accountability. These revelations also point to a mindset within government that does not sit easily with any notions of the sustainable development of this nation, an objective that must be a priority when considered against the backdrop of depleting natural resources in particular oil.

The Auditor General must be congratulated for having had the fortitude to issue the report he did.

We hear so much of the three primary organs of the State: the Executive, the Legislature and the Judiciary. And while we tend to think of Parliament as a place of law making, many of us do not necessarily appreciate the crucial role Parliament plays, in theory if not in practice, in controlling the finances of the nation. Chapter 1 of Part VII of the Federal Constitution sets out the framework of parliamentary control. One of the key features of this framework is the office of the Auditor General established by the Constitution itself, by Article 105, and safeguarded by constitutionally entrenched safeguards aimed at allowing for the discharge of a constitutionally mandated function without fear or favour. Seen from this perspective, the Auditor General is not subordinate to any organ of the State. The Auditor General is subordinate only to the Constitution and the law, to the extent the Constitution permits. The reports of the Auditor General as such carry great force and are indisputably decisive of the matters considered in the said reports.

What that means where the 2006 report is concerned is that the shocking revelations are reasons in themselves for the Government to not only act but to act decisively and firmly. The office of the Auditor General being one of high constitutionality, it is both legally as well as morally incumbent upon the Government to take action.

The fact of the report itself is not a matter for which the Government can claim credit. It has been suggested that the fact that the issuance of such a damning report is reflective of the commitment of the current administration to doing the right thing. This could only be correct if the current administration was admitting to having interfered with the auditing process for previous years. If that is not the case, then the credit is entirely the Auditor General’s.

The only credit that the Government could claim to itself would be for having meaningfully acted on the report. This however does not appear to have been the case.
Thus far we have seen, or heard of, very little beyond the usual rhetoric of Government. A grand total of 10 related arrests by the Anti-Corruption Agency have taken place, 8 of civil servants. The civil servants arrested were nowhere near the top of the chain of command so as to justify the fanfare around their arrest. The Prime Minister has, in effect, snubbed the suggestion by the Public Accounts Committee of Parliament that the ACA should go after the “bigger fish”. Leave it to the ACA, the Prime Minister has said. The Prime Minister has apparently overlooked the fact that that the ACA is answerable to the Prime Minister and, as such, an endorsement by the Prime Minister of the suggestion by the PAC would carry great weight.

This state of affairs brings to the fore two crucial and inter-related questions. Does the political will exist for meaningful action to be taken against those responsible for the abuses and mismanagement? And, if political will is lacking, why is this the case?

The state of affairs suggests that there is a great reluctance on the part of the administration to take meaningful action. It is only logical that the person or persons in charge of the various ministries and agencies involved must necessarily be held to account for the wrongdoings of the said ministries or agencies. Being held to account is not necessarily limited to matters of criminality. If there has been neglect or misfeasance, then that is actionable in private law as well. A former Attorney General of Hong Kong was sued by the Government of Hong Kong to recover monies he had misappropriated. Further, legal proceedings are not the only means at the disposal of the Government. Disciplinary measures can be taken. Resignations can be requested.

Sadly, we have heard of no such measures even being considered by the Government, which, it would seem, is satisfied merely with the report itself and the minimal action that has been taken. Even worse, no one has come to the fore to take responsibility of the abuses and no one has been compelled to do so. It would appear that those responsible at the top of the chain of command have absolved themselves, firm in their belief that they will be forgiven. I have no explanation for this apparent belief other than perhaps they are banking on the fact that no one has taken issue in the past and so no one will in the present. Governments have toppled for less in other parts of the world.

We are therefore compelled to consider why the Government has taken such limited measures.

The nature of the mismanagement involves at its essence, serious breaches of trust. The Government, and as such its servants and agents, are trustees of the nation for the rakyat. They are trustees over public funds. These funds belong to the nation. They are not the property of the Government. A mismanagement of these funds is an injury to the nation and to the rakyat. It is a matter of national interest. It therefore defies logic that not only does the Government not appear to be taking any urgent, concrete and meaningful action, it also appears to not want to take such action. Why this is so is a matter of speculation, though Malaysians could not be faulted for drawing inferences. Politics has become the raison d’etre of Government at the expense of governance, it would seem. Institutions, and the processes underlying these institutions have been subverted for vested interest, political or otherwise. The continued refusal by the Government to recognize that the Judiciary is in a state of crisis, and as such the administration of justice and the national interest, serves to illustrate that the Government interest is not necessarily the national or the public interest.

The intentional enshrouding of bureaucratic process through the use of laws such as the Official Secrets Act, the Printing Presses and Publications Act and the Internal Security Act, as well as the seemingly insurmountable levels of officiousness, compound the problem. Malaysians are kept in the dark about, told that they have no right to know of, matters which are crucial to their ability to make informed choices, to decide what they want as Malaysians.

It would appear therefore that to rely on the Government to do what is right and what is best may be a luxury that Malaysians can no longer afford. It is evident that it falls to the rakyat to take the lead. How this is to be achieved is a complex question that calls for us to question ourselves. We must confront the realities of our existence. We must acknowledge that that it is our fault that we have the Government that we do, a Government that believes it can act with impunity no matter the scandal, no matter the revelation. We must decide whether it is safer for us to leave things as they are or whether if we do not start acting responsibly, for ourselves and for our children, it may be too late.

As far as I am concerned, we no longer have the luxury of time. We must act and we must act quickly.

The matters disclosed by the Auditor General and the apparent reluctance of the Government to act meaningfully are, in my view, election issues. Malaysians must show that they have had enough by voting, and voting responsibly, at the next General Election as Malaysians. Not as Chinese, Malay, Indian or other. As Malaysians, concerned for the welfare of their country.

To prime ourselves, we must identify who those responsible are. We must educate ourselves on the issues at hand. NGOs such as Transparency International are on hand to lend assistance in developing the knowledge base necessary for us to take this challenge on. Other civil society groups are poised to act collectively and coherently to spearhead the way. Civil society groups have been exploring citizens’ movement initiatives as a means for effecting change. I would like to believe that these explorations have resulted in a greater insight into the nature of the beast and what it is that we must do to attack it. They have also shown us how crucial it for us to come together as Malaysians to single-mindedly deal with issues of this nature, firm in the belief that the harm we suffer is a collective harm. The BERSIH initiative shows us just how far citizen movements can take us if we have the passion to declare ourselves Malaysians first, above everything else. Mismanagements and abuses of the nature disclosed by the Auditor General recognize no boundaries, be they religious, racial or economic.

We must at the same time find means to call to account those who have occasioned these abuses and those who are charged with the responsibility of acting in the interests of the nation. We must start at the top. Consider the Ministers, the Deputy Ministers, the Director Generals of Ministries. Consider the Prime Minister if we must. As the saying goes, the buck has to stop somewhere. And, as unpleasant as it is to think, it is with these individuals that responsibility lies.

We must embark on what some are referring to as audit activism. If the Government is not prepared to account then let us force an accounting on the Government. It is only through this that we can begin to make inroads into the fortress of in-accountability that has been built on the votes that we gave to the Government.

Malik Imtiaz Sarwar
President, National Human Rights Society, (HAKAM)
13th November, 2007

Monday, November 12, 2007

A Note On Comments

I have had to reject comments posted on this blog more frequently in recent times. I would like to explain why with the hope that those of you who have not had your comments published will appreciate why this was so and perhaps see how you can have your viewpoint published.

I do not have any difficulty with publishing views critical of me or of my own points of view. I welcome such criticism as it is crucial for the development of any discussion on any subject. I do not believe that it is only my point of view that is correct to the exclusion of all other points of view.

Having said that, I will not entertain any comment whose author does not appear to have any respect for the subject of discussion or the art of discussion. Though I do not expect any of these authors, or those who share their perspectives, to respect me, I do expect that they will respect the readers of this blog and the laws of this country. I have therefore rejected, and will continue to reject, comments that are racist, inflammatory without substantiation, contain hate speech, sexist, obscene, contain profanity and so on. I have also rejected, and will continue to reject, comments that state facts without verification.

I do not need to be called 'Keling' or invited to an execution or face the rubbishing of persons of any ethnic or religious backgrounds regardless to understand a point of view. If you are going to be insulting, then do so in an intellectual manner and, if you have the courage to do so, put your name to the insult. I would be more than happy to hear from you and to share your views with the readers of this blog.

I am not concerned that other blogs or sites have shown a willingness to publish such comments. While I advocate free expression and would defend your right to express yourselves, I do not see such comments as advancing the freedom of expression. I do not see the rejection of such comments as undermining the same freedom. State your point of view constructively, be as aggressive as you want, respect others, and I will publish your comment.

For those of you who feel that comments were unreasonably rejected, please e-mail me at

If any of you have views on this note, I would be glad to hear from you.


Congratulations BERSIH and Malaysian Civil Society

My heartfelt congratulations to the organizers of the BERSIH 10-11 March and to all Malaysians who made the event what it was.

I was on the Bar Council Urgent Arrest response team and found myself waiting on the side-lines for the SOS calls we were anticipating. Thankfully, the calls were few. The events of Masjid Jamek aside and, in my view, the unnecessary arrest of some of the demonstrators, I think the Royal Malaysian Police showed commendable restraint and foresight, a state of affairs which deserves recognition. I believe that it is largely due to this restraint that the event did not become the chaotic melee that some of us were anticipating it might become. The events of Pantai Batu Buruk and Bloody Sunday are still fresh in the minds of many Malaysians.

There were arrests though and as the evening drew to a close, I found myself with a few other lawyers at the IPK KL on Jalan Hang Tuah. The 34 who were arrested were all released by 11.00 pm Saturday evening (the Suaram web-site has details). While the police officers we dealt with were friendly and courteous, the lawyers were not permitted entry to the police station nor any opportunity to meet with our clients. This ran counter to recent amendments introduced to the Criminal Procedure Code that entrench the right of a person arrested to meet with his lawyers before giving a statement to the police. Statements were taken despite our reminders to the police officers concerned of the rights of those detained.


With R Sivarasa, lawyer and Keadilan EXCO member, and Shan Kanesalingam, lawyer. Outside IPK KL.

Friday, November 2, 2007

The Judiciary Must Act

Tun Ahmad Fairuz has retired.

It feels as if everyone is breathing a little more easily. Not just because his retirement arguably marks the close of yet another turbulent chapter for the Judiciary, and as such for the Bar as well as the administration of justice, but also because it has allowed Malaysians to avoid the controversy that an extension of the term of Tun Fairuz would have as a matter of certainty caused.

Where does that leave us? For the moment in slightly calmer waters with Datuk Abdul Hamid, President of the Court of Appeal as acting Chief Justice. Datuk Abdul Hamid has distinguished himself as a judge at all 3 tiers of the superior courts and has several leading judgments to his credit. Though I do not agree with his reasoning in some of his judgments, I am prepared to say that Justice Hamid has struck me as a judge who has been consistently aware of his oath to uphold the Constitution and the significance of the Constitution in our lives as Malaysians.

It remains to be seen what the Acting Chief Justice proposes to do about the Lingam Video Scandal. Thus far the Judiciary has remained silent and civil society has not openly considered the role of the Judiciary itself in inquiring into matters that arise from the scandal. With Tun Fairuz having retired, the way is now open for the Judiciary itself to conduct its own internal inquiries, not only into matters arising from the scandal itself, but also into the systems in place for the appointment and promotion of judges, the way in which cases are scheduled before judges, the way in which judges are selected to form appellate benches to name a few.

This must be made a priority. We have heard CJ after CJ speak about reforming the system with a view to improving the levels of confidence in the Judiciary. Precious little was done. The video scandal and its implications has made it imperative for the Judiciary to walk the talk. The Bar is ready to assist, as it has always been as was made clear by the President of the Bar, Ambiga Sreenevasan in a follow up interview with Aniza Damis ('Video clip not doing judiciary any good', NST, 04.11.2007).

No comments were needed for this interview.


Spot Light: 'Video clip not doing judiciary any good'

Q: Is there a crisis in the judiciary?
A: There is. It's a crisis of confidence. It's been present for a while.

Q: What was it about the "Lingam" video clip that brought you to this climax?

A: It raised serious issues about the appointments' process, and the manner in which people who should not be involved in anything to do with the judiciary were heavily involved. For us, that was so stark. We felt we had to say something about it.

Q: Why walk? Why not just hand in the memoranda?

A: We have sent in memoranda to the judiciary and the government before, about the judicial appointments commission; we have raised it with the minister, we've even held a debate, between BN Member of Parliament Datuk Zaid Ibrahim and the minister (Minister in the Prime Minister's Department, Datuk Seri Nazri Abdul Aziz).

But, they (the government through Nazri) said they were not interested, unless it came from the judiciary. We think that's a non-starter. If you're asking the judiciary to change the system they like, it's not going to happen.

Q: Is the independent judicial appointments commission system a good system?

A: It's an excellent system. For its independence, its clarity and its transparency.

Q: The minister says if you want to change the system, you have to get the judges to change it. You don't think there are enough good men in the judiciary who would want to bring in that system?

A: We have many good men in the judiciary. If you were to do a survey, I think you would find even they, too, would want a change. What happens in other jurisdictions is that they set up a commission to look into it. But we haven't even got there yet.

I've no doubt there are good people in the judiciary; but there has been some resistance to the appointments system.

Q: Knowing that the government doesn't support the idea, why did you appeal to the government?

A: Well, we sometimes have to re-state our position. We updated our memoranda to show how many more jurisdictions have gone that way. It is not an interference of the judiciary (to set up an independent judicial appointments commission). Because what you are doing is strengthening the judiciary, that can never be interference. It's judicial reform.

Q: If the government were to set up an independent appointments commission, who would be the commissioners?

A: In the model we have suggested, the chief justice heads it. All the four office-holders (including the president of the Court of Appeal, Chief Judge of Malaya, and Chief Judge of Sabah and Sarawak) would be there. You would also have members of the public, the Bar, and the Attorney-General's Chambers. All the relevant stakeholders in the administration of justice would be there.

Q: Was the walk based on the belief the video clip was authentic?

A: I think the walk was based on all the things we've been saying about the judiciary requiring rejuvenation. We've been saying for so long, and I think the video clip made things absolutely urgent. We were very alarmed by what we saw on the video clip. We felt the video clip was not doing the judiciary any good at all, and has to be investigated. We were not prejudging anything in relation to the video clip. But there was enough there that gave us real cause for concern.

Q: Has the Bar Council done anything to approach the lawyer in the video clip?

A: A complaint has been lodged and the due process will take its course. We cannot interfere after that. It is with the disciplinary board.

Q: Had the main player in the video clip not been that lawyer, had it been any other lawyer, would it have mattered at all?

A: Of course. The fact that there can be any interference or manipulation of the appointments system is very worrying, frightening, in fact.

Q: So, if the lawyer had been a junior lawyer, and the judge had been a magistrate, would it have been as serious? Would it have resulted in the walk?

A: Absolutely. I think it would have made no difference. The fact of whether it was a senior lawyer or not is irrelevant to me. The very senior judge may well have made a difference. But to me, any kind of manipulation of appointments would have been very scary. Because of the ramifications, what does that do to all the cases that were heard?

Q: Lawyers don't chit-chat with judges about appointments?

A: The informal chit-chatting does go on, because there's no other way for the institution to know who are the good lawyers who should go up. So, where appointment of lawyers to the Bench is concerned, yes, that does happen. There's no harm in that. You can't stop people talking to each other.

Here, we are talking about a process where there is tremendous influence by parties who shouldn't have an influence in the process.

Q: If the government were to agree to a royal commission tomorrow, what would you want it to do?

A: To investigate the current state of the judiciary, and its appointments and promotions process, and how it can be improved. The issues in the video clip have to be investigated, to see whether any of those things actually took place at that time.

You would get the public coming forward, which happened in the royal police commission. Once you start that process, you would get a lot of information. When you do that, we would know exactly what has been happening in the judiciary.

Q: Why do you think no one has come forward to the panel?

A: Because the panel doesn't have powers to protect anyone; they don't even have powers to protect themselves. Despite the assurances that have been coming out, they don't think the panel can give them the protection they need. If it had the powers of a royal commission, they do have powers to protect.

Q: Would a royal commission really be able to give protection?

A: It gives more protection, at least to the evidence that is given, so that the person cannot be sued or arrested for the evidence they give. That is the protection the royal commission can give. It's not protection to identity, but protection to the evidence that is given.

Q: (Datuk Seri) Nazri (Abdul Aziz) said if no one comes forward to the panel by the time it concludes its work, it is "much ado over nothing".

A: It would be very wrong to take that stand. If you are going to deal with it in such a perfunctory manner, it will be real cause for alarm. I think the problem with the panel, its lack of powers, has to be taken seriously. People are scared to come forward. Despite all the assurances by everyone, there's no actual statutory protection for the evidence, that is what is missing. How can you conclude there is no issue?

Q: The minister said if you really wanted justice done, you would come forward.

A: The criminal justice system very often relies on whistleblowers. The law has to protect whistleblowers. We do not, at the moment, have an act that does that. The fact the government and Nazri himself recognises we need such an act must mean that there is value to be placed on whistleblowers.

Perhaps the Attorney-General should come out and say he will give immunity, in respect of civil and criminal prosecution to this witness. Amnesty should be given to this witness. In the public interest.

If you recognise that a country needs a witness protection act, then you recognise the value of whistleblowers, you recognise they need to be protected.

Q: The minister said it's not the government's problem if no one comes forward.

A: The government has taken a step to look into it, it shows they feel there is an issue. If no one comes forward, all it means is that the step they have taken is ineffective. If it is ineffective, then they have to take a step that is effective, they can't just close it.

Q: If everyone keeps talking about a crisis in the judiciary, won't this scare away foreign trade?

A: All we're doing is speaking the truth. I don't think anyone should be stopped from speaking the truth. We do it because we know we have the potential to be a First-World judiciary. Public confidence is something very fragile; it comes from the opinion that people have. If steps are taken to reform, the confidence will come back immediately.

Q: If the government doesn't do anything, what is the Bar going to do?

A: I think the Bar will be wanting to have an emegency general meeting. This cannot just go away without a full and thorough investigation. That is something we hope to persuade the government that has to be done.

Q: What options are open to you?

A: Our meeting with the prime minister -- that's a big option. And also by hearing from the members of the Bar at an EGM (on Nov 22), where we hope to communicate our views to the government. Those are the options we are looking at. We are still going to use persuasion.

Q: There was a suggestion at the recent Malaysian Law Conference for lawyers to go on strike from the courts for one day. Is that feasible?

A: We have discussed it. We have to be very careful in any steps we take. We have to be responsible -- first to our clients; secondly, we have to be careful not to pre-judge any issues. It's not something that we would easily do.

Q: The old chief justice is out. There is currently an acting-CJ, and there will be a new CJ. Have you thought of taking the minister's suggestion by going to the judiciary and asking them to reform?

A: We hope to write in and have a meaningful discussion, between the Bar and the Bench. We are hoping to see this new era, where there will be a lot of discussion. But even before this video-clip incident, the judiciary was already beginning to engage with the Bar. We were invited by the Chief Judge of Sabah and Sarawak (Tan Sri Richard Malanjum) to see the system in Sarawak. They are doing things to try to improve, and we want to help in that process.

So, we do know that there are judges there who will engage with us. And we hope to continue with that process, and that we start this new era where we work together, in the interest of the administration of justice.

Q: The government says it's not going to reform the judiciary unless the judges want the reform.

A: Well, let's see. It may be something everybody can be united on. Hopefully soon.

Wednesday, October 31, 2007

The Call For Judicial Reform

In His Royal Highness Sultan Azlan Shah's address at the opening speech at the 14th Malaysian Law Conference, His Royal Highness called for a return to the glory days when the Malaysian Judiciary was "held in high esteem". The address has been carried in full by the media and blogs (and can be read here).

The call by the former Lord President (as the office of the Chief Justice was formerly known) for Judicial Reform is timely. In many ways the Malaysian justice system is at the point of no return. Something needs to be done, and done urgently.

While we, quite correctly, have tended to focus on the more abstract notion on the need for an independent and competent judiciary, and its crucial significance to a functioning democracy, the sustainability of development and growth of the nation, and to our daily lives as Malaysians, we may not have given sufficient attention to the retrogressive effects of the insular and uninspiring Judiciary that Malaysians have come to inherit over these last two decades or so, on the practical aspects of our lives.

The question of public confidence goes beyond judicial independence. It crosses over into the realm of competency and judiciousness on the part of judges. Judges decide cases. If the judges concerned are appellate judges (of the Court of Appeal or the Federal Court), their decisions become binding precedents on the High Court and the subordinate courts. If appellate decisions are arrived at incompetently, and as such erroneously, or by reason of influence, these decisions shape the future of the law. If such decisions were the exception rather than the norm, these decisions could be treated as anomalies to be corrected at the first opportunity. The damaging effects of these anomalies could be contained and limited.

But what if these anomalies were the norm as opposed to the exception? Would we not be reshaping the jurisprudence of the country in a way which was undermining of progress and sustainability. I have argued that the development of case law on the role of Islamic law in the public sphere has been premised on questionable decision after questionable decision. Despite the call for correction and a restatement of principle in accordance with settled principle, the momentum has carried the development of legal principle into highly questionable decisions contrary to binding precedent such as that of the majority of the Federal Court in the Lina Joy case.

This phenomenon has not been confined to these so-called controversial cases. These cases are just one aspect of the wider dynamic. The experience has been similar in the sphere of commercial law as well as civil law. So much so that many a litigation lawyer can, if pressed to honest response, of being asked questions such as "Is the judge competent enough to handle the issues involved?" or worse, "Is the judge capable of being influenced?"

As much as these questions may not necessarily be answered in the affirmative, it must be recognised that the questions are being asked. This is as much a manifestation of a lack of confidence as much as the seeking of alternative recourse in preference to dispute resolution through the courts, such as through arbitration.

The call for judicial reform by His Royal Highness is therefore not only timely but welcome for the fact of the recognition by such an august personality, not least for having been a well respected and admired Lord President, of a damning state of affairs. This should not be taken as an attack on the Judiciary as an institutions or individual judges but rather as a well founded critique of the underlying system and the manning of the system as observed by constitutional law scholar, Professor Shad Faruqi (see 'Full support for sultan's call', NST, 31.10.2007)

I aim to comment more on the subject, and will be doing so in a series of postings. For the moment, allow me to share an open letter to His Royal Highness from Martin Jalleh, a well regarded social commentator whose thoughts appear regularly on Malaysiakini. Martin was kind enough to forward me a copy of his open letter and has given me permission to reproduce the same here.


An Open Letter to YM Sultan Azlan Shah

Your Royal Highness,

Thank you very much for portraying the truth about the state of the country’s judiciary and your accompanying clarion call for major reforms in the judiciary during your opening address at the 14th Malaysian Law Conference recently.

You acknowledged with sadness that “there has been some disquiet about our judiciary over the past few years and in the more recent past…there have been even more disturbing events relating to the judiciary reported in the press”.

“We have also witnessed the unprecedented act of a former Court of Appeal judge writing in his post-retirement book of erroneous and questionable judgments delivered by our higher courts in a chapter under the heading ‘When Justice is Not Administered According to Law’.”

You highlighted “serious criticisms” against the judiciary such as delayed judgments and backlog in cases as a result of incompetence. You gave the example of a case of medical negligence involving a death of a lawyer which took 23 years to reach the Court of Appeal.

“Similarly there have been reports that some judges have taken years to write their grounds of judgments involving accused persons who have been convicted and languishing in death row.” (Like the judge who failed to deliver 35 judgments including four in which the convicted are languishing in jail despite being sentenced to death seven years ago?)

“Surely, such a situation cannot be tolerated in any progressive nation,” Your Royal Highness so very aptly concluded. The powers that be should therefore understand why the lawyers walked, the people talked and the rest blogged.

You have rightly pointed out that this is not the first time that you have expressed grave concern over the judiciary: “In 2004, I had stated that it grieved me, having been a member of the judiciary, whenever I heard allegations against the judiciary and the erosion of public confidence in the judiciary.”

Your Royal Highness had in June 2004 warned that “the erosion of public confidence in the judiciary’s independence would ultimately lead to instability and remedying it would be a protracted and arduous task.”

But, very evidently, the tell-me-the-truth Government has not been listening (even though it claims to be open). After saying that you had given a “very good speech” Minister in the Prime Minister’s Department, who is also the de facto Law Minister, Mohamed Nazri Abdul Aziz, told the press that the state of the judiciary that you had described was merely your “perception”.

Clearly contradicting the scenario that you had painted in your opening address, Nazri very proudly and loudly declared to the press that “there was no erosion of public confidence in the judiciary” (NST, 30.10.07).

You stressed in your opening address: “In matters concerning the judiciary, it is the public perception of the judiciary that ultimately matters. A judiciary loses its value and service to the community if there is no public confidence in its decision-making.”

When asked to comment on public confidence being an integral part of the judiciary Nazri said: “I agree but the public... what is the public? Does the public mean 1,000 or 2,000 people or the whole nation?” It was just as good as him saying “Does the public mean the voice of one Sultan?”

Your Royal Highness, if we were to apply and follow Nazri’s arguments and the twisted logic which he had used to arrive at his arguments, which appeared in a NST interview (28.10.07), your grave concerns would be deemed as “a false allegation”, a “perception created by some people…who are unhappy, make a lot of noise…” Yours (according to the Minister) will be a view of the “minority”.

Nazri had also insisted that there isn’t a crisis in the judiciary and that “(c)risis means it involves the whole country but nobody talks about it. I even asked my fellow members of parliament (MP) but nobody talks about it. So, what crisis are we talking about? The crisis is in the minds of those who created it.”

The NST interview caused Opposition Leader Lim Kit Siang to ask: “Will the de facto Law Minister, Datuk Seri Nazri Aziz dismiss Sultan Azlan Shah’s increasing “disquiet” about the crisis of confidence in the judiciary as a “false” perception and baseless allegation of one person, in the way he dismissed the concern of Malaysian Bar on the ground that it is no “big deal” as only 1,000 out of 13,000 lawyers or 26 million Malaysians had taken part in the “Walk for Justice” to the Prime Minister’s Office in Putrajaya?”

It now appears that the independence and future of the judiciary in our beloved country depends very much on the perception of one man – Mohamed Nazri Abdul Aziz. He had even made it very clear (last year) that we have to ‘convince’ him first if things are to improve significantly in the judiciary.

Perhaps Your Royal Highness could educate the minister with what you had written in the postscript to your book “Constitutional Monarchy, Rule of Law and Good Governance” (pp 399 – 401) in April 2004: “… statements made as to its independence (of the judiciary) by the judges, or even the politicians (my emphasis), do not measure public confidence in the judiciary. At the end of the day, it is this public perception that ultimately matters.”

As for the de facto Law Minister’s seeking refuge under the “silent majority” as “the public”, Nazri’s predecessor, Rais Yatim, who wrote “Freedom under Executive Power In Malaysia: A Study of Executive Supremacy”, would be able to unveil the Minister’s cheap and stale political trick:

The “…supremacy of the executive can be achieved and maintained within the so-called democratic process through political manipulations. This is exemplified by the very mechanism of democracy, namely, majoritism, which since Merdeka in 1957 the executive branch of government in Malaysia has been able to render subservient both the judiciary as well as the parliament.”

Your Royal Highness, one can understand why you are “driven nostalgically to look back to a time when our judiciary was the pride of the region and our neighbours spoke admiringly of our legal system” and we were then “second to none and the judgments of our courts were quoted confidently in other common law jurisdictions”.

Today, we are driven nauseatingly to look back at our judiciary. The region and our neighbours still talk about us. We have become a laughing stock. We are second to none when it comes to kangaroo courts and court jesters like the de facto Law Minister. The judgments of our courts are often quoted in political satire and online comic scripts.

May Your Royal Highness continue to speak out boldly on common law jurisdictions and the judiciary on behalf of the common man (and woman) as it has become increasingly common knowledge to many of us that we are being led by a Government tragically lacking in common sense.

A proud and loyal son of Perak,
Martin Jalleh
31 October 2007