The Nazri-Zaid Debate

Much has been written about this already (see here). The debate was, in effect, a non-starter. Zaid Ibrahim did a commendable job, not pulling his punches as he described the judiciary as "hopeless" and arguing that the system was in need of a revamp to ensure independent and competent judges at all levels.

Nazri was a surprise, not so much for speaking like a politician but rather for assuming that members of the audience, comprising largely members of the Bar, were stupid enough to believe the line he was taking. Some of this made the press and I think I would not be overstating things to say that the Minister outdid himself.

The main points made by the Minister were:

• the system of appointments is fine. It has been in place since 1957 and has worked well

• the system has its own safeguards i.e. the choice is not that of one person - be it the Prime Minister or the Chief Justice - as the Conference of Rulers and respective heads of the Judiciary are to be consulted

• that, if at all, the problem is with the Chief Justice, an individual as opposed to the system
  

• parties interested in the appointments process should avail themselves of the opportunity to interact directly with those involved in the appointments process

• all persons appointed are beholden to the person or authority appointing them. As such, a judicial appointments commission would itself not be independent

• the Government is satisfied with the Judiciary. The Government has about 98% majority in Parliament. Their view is that of the people. The assertion that there is no confidence in the judiciary is questionable
  

It does not take a great deal of thought to see that the Minister has completely missed the plot and, in having said what he did, proved the need for a commission. My reasons for saying so are:

• Justice must not only be done. It must be seen to be done. The Minister appears to have overlooked this fundamental and crucial aspect of the administration of justice. As such, it does not matter whether the Judiciary is in fact doing fine if the public thinks otherwise. The Minister did not address the serious lack of public confidence. On matters of this nature, the Government does not speak for the rakyat. It must listen. Saying, therefore, that the Government is satisfied is not sufficient
  

• There is a serious question about the independence of the Judiciary. Much of what the Minister said reinforces the concern the Judiciary is not independent. In particular, the emphasis by the Minister that the Prime Minister is the final authoritative appointing authority (my expression, not his) goes to show that the Executive does play a very big role. There is no as such no separation of powers

• In the same vein, in saying that the problem members of the public have is with the Chief Justice, the Minister in effect is saying that there is room for personality cults within this most sacred of State Organs. This is unacceptable
  

• There is a serious concern about the lack of transparency and the basis of appointments and promotions. The Minister did not address this

• Saying that all persons appointed by another would be beholden shows a total lack of understanding as to how things should be. Was the Minister saying that, in applying the same logic, no Judge is independent? One would gather so if the Minister holds true to this point

• The Minister appeared to have little or no understanding of the role and function of a Judicial Appointments Commission, nor did he show any interest in the same. The Commission would not be the appointing authority, it would merely make recommendations to the appointing authority who would have no discretion in this regard other than rejecting or accepting the recommendations of the Commission

• The Minister failed to appreciate his own role and function. He is duty bound to uphold the Constitution in letter and in spirit. He is duty bound to take into consideration situations which reveal a deficiency in the situation at hand. The Minister referred to the so called 'sensitive' cases (Subashini etc) but went on to blame the law - Article 121(1A) - without pausing to take into consideration the fact that cases of this nature are a recent phenomenon. Saying, therefore, that he is satisfied with the performance of the Judiciary and demanding to be convinced of a need for any change to the existing system of appointments is simply not good enough

It is apparent that there is the current Government does not have the political will to effect changes which are beneficial for the country. Having considered the role and function of a judicial appointments commission, what reason could there be for not introducing the measure here. That process, if introduced, would result in a stronger and more competent Judiciary.

Is that not a good thing?

MIS

Why A Judicial Appointments Commission III

Cutting Down The Politics Of Appointments

On April 1, 2006 the UK ended 700 years of legal tradition. On that day, a new Judicial Appointments Commission came into existence and was charged with the task of judicial appointments.

The question that comes to mind immediately is why was there a need for this change in the way judges were appointed. Lord Falconer, the former Lord Chancellor, was quoted in The Telegraph (on 1 January 2006) as saying, "The new body will ensure that politicians will no longer be responsible for the selection of judges," he said. "That has to be good for public confidence in the judiciary."

This puts into focus how crucial the judicial appointments process is. The UK Courts have long been recognized as being a fair representation of an effective Judiciary in all aspects. Nonetheless, it was felt that there was a need for a shift. The drive towards change was led by the Lord Chancellor himself.

The shift has also taken place in other jurisdictions such as Canada, South Africa and certain states in the US.


What is a Judicial Appointments Commission?

Simply put, it is a commission charged with the responsibility of appointing judges. This involves the selection of appropriate candidates for vetting, and then recommendations of the best candidates for the posts available. The recommendations of the commission can either be binding or persuasive. The process is a transparent one and the commission can be called upon to account for its recommendations. Similarly, where discretion is left with either the Government or the Chief Justice, then these parties can also be called upon to justify rejections of recommendations.

The UK models is a good illustration. Under the relevant law (the Constitutional Reform Act 2005), a Judicial Appointments Commission has been established (by the same name). Its primary aim is to select suitable candidates on “merit and merit alone”. The Constitutional Reform Act spells out how this is done. In essence, the following steps are taken:

• The Commission selects the judges in accordance with procedures it establishes

• In doing so, the Commission consults senior judges not sitting on the Commission and who are not up for selection (the selections power includes selections for judge of the Supreme Court, the Deputy President and the President) [for Ireland, Scotland and Wales, there are other persons identified who are to be consulted]

• A report is then prepared and submitted to the Lord Chancellor (the head of the Judiciary). This reports specifies the candidates who have been selected and the senior judges consulted

• The Lord Chancellor then consults the persons consulted

• The Lord Chancellor may reject or require reconsideration of the selection BUT must give written reasons for the rejection or the requirement for reconsideration

• If there is a rejection or a failure upon reconsideration, the Commission is not allowed to select that person. Other candidates are to be considered

• If accepted at any stage by the Lord Chancellor, then the names of the candidates are forwarded to the Prime Minister who has no discretion in the matter.

The process outlined above ensures accountability at all levels: the members of the Commission must be able to justify their selections. Similarly, the Chief Justice must justify his decision to reject or require reconsideration.

There is no shroud over the process and the Prime Minister is given no say as to who is appointed and who is not. I do not see anything counter-productive with this system of appointments.


Efforts In Malaysia

The Bar Council has submitted memoranda explaining the need and reasons for a Judicial Appointments Commission in Malaysia. The Bar had until recently been met with stony silence. The current Chief Justice, Tun Fairuz, has questioned the motives of those who advocate the establishment of such a commission (see NST, 22.02.2007 – Independent Judicial Commission: Chief Justice Questions Lawyers’ Motives). The Chief Justice appears to have made 3 points in response:

• He requested that a memorandum be submitted. He overlooked the fact that a memorandum had been submitted by the Bar on the subject

• In asserting that the process had been transparent (without explaining how this was the case in light of the selection process employed), the Chief Justice asserted that transparency had its limits (no reasons were given for this suggestion other than freedoms cannot be absolute), the Chief Justice asserted: “Don’t tell me when we are transparent, we have to be nude. That is not transparency, that’s nudity.”

• There was no proof of corruption on the bench and that members of the public would make allegations about judges as 50% of litigants lose cases. Judges, he continued, were not popular.

The analysis of the Chief Justice, respectfully, shows a lack of appreciation of the issues involved. The Judiciary serves a valuable role in the separation of powers. Public confidence must be maintained. Public confidence is at a low. The situation does not appear to have improved very much since the tenure of Tun Dzaiddin and, at the very least, no obvious steps have been taken to deal with low public confidence. There have been other cases which have created a sense of dissatisfaction (as discussed in the previous segment).

The perception of the Judiciary of itself is not a defining factor. In as much as the Chief Justice may say that all is well, he does not speak for the nation. As an interested party, he in fact conflicted. He cannot say otherwise as this would impact upon his position, the Chief Justice having a role in the process of appointment of judges.

My view is that the nation would benefit tremendously from such a commission for obvious reason as has been explained previously.


Where Do We Go From Here?

Ultimately, it is for Parliament to decide what to do. It is for Parliament to put the commission in place, not the Judiciary. This is as such an issue that must be brought home to our Members of Parliament. They must be made to see that the question of judicial competence and integrity is one that goes to the heart of who we are as Malaysians.

[This evening, at 5 pm, the Bar Council will host a debate between Datuk Zaid Ibrahim and Dato’ Seri Mohamed Nazri on the motion: There is a Need, in Malaysia, to Establish an Independent Judicial Commission in Relation to the Promotion and Appointment of Judges. It is open to the public. Places are limited. To register or make enquiries please contact Lojini 03-20313003 X 101 or email rezib@malaysianbar.org.my]

MIS

Why A Judicial Appointments Commission II

Qualities And Abilities Of A Judge

It stands to reason that only qualified persons should be appointed to the bench or promoted. Although some may suggest that the question of who is qualified is a subjective one, this flies in the face not only of logic but also of established principles applied throughout the world.

The criteria by which a person is deemed qualified are necessarily objective. These criteria have been scrutinized time and time again and essentially revolve around two core principles – competence and integrity. The former principle is self-evident; there is no room for incompetence on the bench. The second is more nuanced, encompassing qualities that include an understanding and respect for the role and function of the judge, a role and function that demands independence, impartiality, objectivity and judiciousness (see the 2002 Bangalore Principles of Judicial Conduct).

These two core principles can be broken down into core qualities and abilities. The following represents a useful summary of these qualities and abilities (as identified by the UK Judicial Appointments Commission, a body set up under law to oversee the process of judicial appointments). I think they are reflective of the perspective of all countries renowned for judicial competency and independence:

1. Intellectual capacity

2. Personal qualities:

• Integrity and independence of mind;
• Sound judgement;
• Decisiveness;
• Objectivity
• Ability and willingness to learn and develop professionally
  

3. An ability to understand and deal fairly:

• Ability to treat everyone with respect and sensitivity whatever their background
• Willingness to listen with patience and courtesy.
  

4. Authority and communication skills

• Ability to explain the procedure and any decisions reached clearly and succinctly to all those involved
• Ability to inspire respect and confidence
• Ability to maintain authority when challenged.
  

5. Efficiency

• Ability to work at speed and under pressure
• Ability to organise time effectively and produce clear reasoned judgments expeditiously
• Ability to work constructively with others (including leadership and managerial skills where appropriate).
  

Appointing The Judges – The Current System

Needless to say, one can imagine that the process of finding the right person is not an easy one. For most commonwealth countries, the task was left to the Chief Justice who, through consultations with relevant persons, would make the necessary recommendations to the government, which would then make the appointments.

This is the system provided for under our Constitution in Article 122B. The Yang di-Pertuan Agong appoints judges “acting on the advice of the Prime Minister” after consulting the Conference of Rulers. Where the appointment is that of a judge other than the Chief Justice, the Prime Minister is expected to consult the Chief Justice. Other cross-checks with the relevant senior judges – Chief Judge Malaya, Chief Judge Borneo, President of the Court of Appeal – are also requires in the appropriate case.

This method of appointment by its nature involves the Executive in the appointment of judges. Case law has defined the expression “acting on the advice” as precluding any discretion on the part of the YDPA. His Highness’ role is merely to endorse the advice of the Prime Minister. And while the Prime Minister is required to consult the various parties identified and the Conference of Rulers, the provision does not explicitly oblige the Prime Minister to act in accordance with the views expressed to him (although one would think that this should be the case as why else is there a need for consultation).

The provision can be interpreted to allow for a high degree of accountability and transparency. Regrettably, it does not appear to have been interpreted that way by the powers that be. Rather, it has been applied literally with little or no regard to the spirit of the provision. The system, as I see it, is as follows:

• The Prime Minister chooses the judges

• He is not bound to follow the recommendations of the CJ or any other person

• The public does not know the basis upon which recommendations are made, by the CJ or by other persons, or if there is any basis at all, reasonable or otherwise. The current CJ has declared more than once that seniority is not a decisive factor. Some of the more junior members of the judiciary (in terms of years of service as a judge, not age) are sitting in the Federal Court and the Court of Appeal. I know for a fact that there are very accomplished senior judges who remain un-promoted.
  

• There is no meaningful consultation with the Bar Council. I do not know of the Bar Council having been asked for its views on potential candidates. This was however the case prior to 1988

• Appointments are therefore done on a basis that appears to have precluded any meaningful consultation. Put another way, the appointment of members of the most crucial organ of the State are left to the discretion of one person. The margin for error is extremely wide, to say the least.

Is This A Good System?

The scenario is worrying as:

• There is, in effect, no separation between the Executive and the Judiciary. Put another way, there is no independence.

• There is no certainty as to the basis upon which appointments are made and promotions given. This lends to the possibility, at least in appearance, that judges may pander to the appointing and the promoting authority or authorities

• There is no certainty as to the competence of the judges appointed. All we have is the say so of the Chief Justice and the Minister of Law.

The system was put in place in 1957. We have had 50 years to see how the system could fail. The events of 1988 and that followed the sacking of the former Lord President destroyed a very credible judiciary and in its place established a judiciary that has been the subject of damning international reports by credible legal bodies (see e.g. the 2000 ‘Justice In Jeopardy’ Report by the International Bar Association here) for its lack of independence.

This is not just about the high profile ‘political’ cases like the prosecution of Anwar Ibrahim, Lim Guan Eng, Ezam Mohd Noor (to name a few), or the various ISA detention challenges. This is also about commercial cases amongst which the Ayer Molek affair (see the IBA report) is amongst the most notorious. When Tun Dzaiddin was appointed Chief Justice in December 2001, amongst the first statements he made was one in which he admitted that public confidence in the Judiciary was at the lowest points it had ever been. This was not surprising bearing in mind the number of eyebrow raising events involving the judiciary at that stage.

Things do not appear to have moved that much forward. Moorthy, Syamala, Lina Joy, Kamariah Ali, Subashini have all happened on the current Chief Justice’s watch. The Subashini decision has prompted outrage and questions about competency and impartiality. Even if there is no basis for this outrage (at least where the judiciary is concerned) it cannot be denied that the perception is very much otherwise. The perception is that justice is not being done. Put another way, justice is not being seen to be done.

The situation described above goes back to the judges who interpret and apply the law. As stressed in the earlier part of this series, the buck stops with the judges. They make the decisions.

The question for us is then do we have an alternative option that can help us address this situation i.e. the lessen doubts about the Judiciary and its performance. The answer is a resounding ‘yes’. A Judicial Appointments Commission.

This is dealt with in the third part of this series: Why A Judicial Commission Appointments Commission III.

MIS

Vote For Change

There is a remarkable effort underway to reclaim Malaysia for its citizens. Conventional race-based politics have left many of crippled, especially in our "first past the post" electoral system. The problems affecting us are many but most, if not all of them, stem from the fact that Malaysians vote on race or political parties rather than on issues. As such, many critical issues have been left unaddressed or have been exarcebated by a political system aimed at ensuring status quo rather than dealing with the evolution of Malaysia.

'The Peoples' Parliament' is an initiative aimed at breaking convention. It is aimed at ensuring that legislators act responsibly as they must in a government by the people, for the people. It is aimed at ensuring that legislators represent the interests of the rakyat as they should rather than the interests of their particular political parties, opposition or government. A fantasy? Go here to see for yourself whether we can make this dream, a Malaysian dream, the reality that it should be.

Vote for change. We owe it to ourselves.

MIS

PS Watch this space for Project Malaysia: An Experiment In Nation Building

Why A Judicial Appointments Commission

Our Lives Are Shaped By The Law

It is crucial to remember that the system we live in is entirely shaped by the law. The Federal Constitution, as the supreme and basic law, sets the foundation. The space in which we exist and correlate is also shaped by the law. The law puts in place a framework that becomes the basis of our expectations of each other in our public lives.

For example, we do not murder. This is an offence. Murdering as such ceases to be norm. Or when we enter into a contract, we know that we are under obligations, just as the other party or parties are. Similarly, we know that it is relatively safe to drive on a public road as other drivers would, more usually than not, have been licenced to drive and as such are competent to do so.

The more we think about it, the law affects and shapes us in so many ways. It is defining.

This is why the Federal Constitution as the Supreme Law is so important. By entrenching basic personal rights – the right to be free from slavery, the right to life and liberty etc – the Constitution seeks to ensure that our private space is protected in such a way that we can live our lives privately and as we wish to. The only condition is that where our private lives intersect with public life, then we cannot act against the general interests of anyone else.

This is easily illustrated by the guarantee on the freedom of religion. Article 11(1) guarantees every person the freedom to profess and practice a religion of choice. That means that if I wanted to profess the religion of satanic worship, I could. Article 11(5) however provides that my freedom cannot be invoked to justify acting against general law relating to public order, public health or morality. What that means is that while I can profess to be a satanic worshipper, my right to practise may be restricted if such worshipping involves acts against public order – e.g. sacrifices of virgins under moonlight. This is because in that situation my private life – the right to be a practicing satanic worshipper – intersects with public life – the right of a particular virgin not to be murdered.


The Law Is Only As Good As The Way It Is Defined And Applied

But, and this is the point of this exercise, the law is only as good as the way it is defined and applied. Put another way, the law – be it the Federal Constitution or any laws made by the legislative bodies – is only useful in ensuring the balance described above if it is applied correctly and consistently. This is why in common law systems, the doctrine of precedent requires that decisions of a higher court are followed by a lower court. The presumption is that the decisions of the higher courts would be sounder – the decisions having been made by more experienced judges, usually sitting in teams of 3 or 5 – than those of the lower court, where more junior judge sit, usually alone.


Judges Administer The Law

This points to a very crucial feature of the legal system: the law is only as good (in application) as the person who interprets and applies it; the Judge. It is the Judge that administers the law. For many, the Judge characterizes and embodies the law

For this reason, one of the most important processes in the system we operate in is the appointment of judges. This process is intended to ensure that the person who is appointed as a judge or who is promoted to senior positions is qualified for that role. Not for reasons of vanity or pride, but because unless the right person is appointed, the law is bent and twisted out of shape. And the system we live in begins to disintegrate.

Think about it. If a judge is not sufficiently competent, he or she would decide cases wrongly. There are many consequences that flow from this: the litigant is denied justice and is put to the expense, cost and worry of an appeal. What if the appellate judges are similarly not competent and uphold the decision of the judge? The litigant loses the appeal, does not get the appropriate result. Justice has failed him or her.

It does not stop there. The appellate decision would stand as a precedent. The law then begins to develop at a tangent until that process is stopped by a correct decision of the appeals court, if that happens at all. And what if many of these tangents developed, different judges adjudicating differently, inconsistently. There would be uncertainty and with that, a non-functioning legal system.

This is very clearly seen in a commercial context. Commerce operates on certainty. If a commercial party enters into a deal, that party needs to be certain that it will work out as it should and that if it does not, then the courts will assist in obtaining a just result. The need for this certainty is at the heart of the commercial system. Lawyers advise their commercial clients based on what the law is in a particular area. Where there is coherence and consistency, there is no difficulty. But what if there are ‘tangents’ or inconsistent decisions, each one pointing to very different possibilities. The lawyers would not be able to advise with certainty, the commercial parties would not be able to assess their risks with certainty and eventually, because the risk is far too undefined, commerce comes to an end.

Corruption has the same effect. It puts the system of justice into a spin as law is twisted to a particular end, a desired conclusion. Judgments are not correct in law, occasion grave injustices and lead to a fracturing of the coherence that the law is premised on. Certainty is flung out the window and arbitrariness becomes the order of the day. Imagine the supreme court of a country deciding a case not according to the law and the facts but in accordance with the wishes of a party who has paid for a particular conclusion. That case does not end there. It remains as a precedent, to be followed by later cases. In that way, and many others, corruption not only leads to a particular litigant being denied justice. It leads to the dismantling of the entire system of justice.

The foregoing should serve to give you an idea of why Judges are crucial and why it is essential that only qualified candidates be appointed judges. What are the correct qualifications though. This is discussed in the next segment: Why A Judicial Appointments Commission (II)

[On 24th April 2007, the Bar Council will host a debate between Datuk Zaid Ibrahim and Dato’ Seri Mohamed Nazri on the motion: There is a Need, in Malaysia, to Establish an Independent Judicial Commission in Relation to the Promotion and Appointment of Judges. It is open to the public. Places are limited. To register or make enquiries please contact Lojini 03-20313003 X 101 or email rezib@malaysianbar.org.my]

MIS

Oppression

We used to count our hopes
On each finger of every hand
See rainbows glint
On the sun kissed edges of
Our children’s laughter

Now, oppression
Immaculately conceived
Resonates in the silence
Of a sacrosanct introspection
Born in the space,
between heartbeats

Lie after lie
Has stabbed us with tongues of velvet
Kissed us
With the poison of insanity
As one by one
Fingers have withered, decomposed
Amputated by the eroding bitterness
Of hopes ravaged,
Laid waste
In the darkness of perversion

As one by one
Each lie
Sung to us
Seduced us
With their whispers
Of potent madness

MIS

Promoting Unity, Malaysian Style

Just remember, we gave the present Government a mandate. Something we are constantly reminded of.

The law requires that the welfare of the children be the paramount consideration. The law also requires that all of us be treated equally. And yet, it would seem that those amongst us charged with the welfare of the nation and its citizens appear to think otherwise.

What justifies tearing a family apart, separating children from their parents? Islam does not. The law does not. How can we even begin to understand the anguish of the father, the mother and the children? How can we even begin to understand that some believe that the law countenances, warrants, such cruelty?

Someone has to be made accountable for this.

MIS

http://www.malaysiakini.com/news/65995 Family torn apart over 'religion'

Yoges Palaniappan

Apr 16, 07 4:26pm

Rubber tapper P Marimuthu’s life changed drastically when seven officers from the Selangor Religious Department (Jais) came to his house in Kampung Baru Tambahan Ulu Yam on April 2. The father of six was told that his wife of 21 years Raimah Bibi was a Muslim and that she and their children, aged between four and 12, must be placed in a rehabilitation centre. The couple’s eldest son was staying with an uncle at that time. Relating his ordeal at a press conference in the Parliament lobby today, the 44-year-old rubber tapper said he had no choice but to let the officers take his family away. He also claimed that an ‘ustaz’ (religious scholar) had told him to covert to Islam or threatened to charge him for khalwat (close proximity) with Raimah, 40. Raimah, who returned to help him with the rubber tapping work two days later, told him that Jais had placed the family in the nearby Kampung Melayu Liga Emas. She purportedly said the villagers, who are predominantly Malays, have been asked to keep an eye on her daily activities and prevent her from meeting outsiders, especially her husband. Marimuthu said he felt threatened by the villagers’ stares when he attempted to visit his wife and children. “My wife was so afraid that she refused to come out and talk to me. I had no choice but to leave that village,” he said. According to him, Raimah managed to sneak their children over to his house several times without anybody’s knowledge. “We will be together for some time and then she’ll leave again to the other house,” he said. Another heart-rendering saga Marimuthu also does not know if his wife was a practising Muslim before they got married. Since then, he said, the two of them have been practising Hindus. “We got married in a temple, according to Hindu rituals. All our kids were brought up as Hindus,” he said. He said Raimah, who was adopted by an Indian Muslim family, cannot remember her adopted mother and her late adopted father had approved of their relationship. According to Marimuthu, his wife’s MyKad had stated her name as Raimah Bibi binti Noordin and her religion as Islam. The couple did not apply to the National Registration Department (NRD) to have this corrected either. Meanwhile, Parliamentary Opposition Leader Lim Kit Siang, who accompanied Marimuthu, said the authorities learnt about Raimah’s ‘religious status’ when the couple enrolled their children into a school and copies of their identity cards were submitted to the education department. “It is a simple mistake that has brought a great tragedy to the family,” he said, adding that the matter must be checked with the authorities in order for the family to be reunited. “This is the latest in heart-rendering family sagas like in the case of R Subashini where human rights are completely ignored. Such incidents should be stopped,” he stressed.

Say No To Racial Discrimination And Racism

The Government of Malaysia has no excuse for not having ratified the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Any government that does not ratify CERD is a government that supports racism and racial discrimination.

Only 19 UN members (out of 191) have not ratified CERD. Malaysia is in the company of countries like Vanuatu, Saint Kitts and Nevis, Samoa and Palau to name a few. Of so called Islamic countries (my understanding of Islam being that it does not support racial discrimination), Malaysia only has Brunei for company (see here, click on "status of ratifications").

Malaysia is a member of the United Nations, sits on the UN Human Rights Council and has ratified 2 human rights treaties - the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). It has also adopted various UN human rights declarations, from the Universal Declaration of Human Rights to more recently, the Vienna Declaration And Programme of Action (on human rights).

There is no doubt that Malaysia has accepted the international human rights framework. In addition to the matters described above, the National Human Rights Commission was established in response to a UN led initiative to establish national human rights institutions for the promotion and protection of human rights. The National Human Rights Commission Act refers to the Universal Declaration of Human Rights.

And it goes without saying that the Federal Constitution guarantees equality (see No Discrimination Please, We Are Malaysians)

Demand that the Government of Malaysia ratify immediately. Demand action, reject excuses. We are all equal. Reasonable and fair measures for protection and affirmative action (such as in Article 153 of the Federal Constitution) do not allow the establishment of a system of racial discrimination (see Article 1 (4) and Article 2, CERD - excerpt appears below).

There is no possible justification for the continued failure of the Malaysian Government to ratify CERD. Consider the following excerpt from CERD:

The States Parties to this Convention,


Considering that the Charter of the United Nations is based on the principles of the dignity and equality inherent in all human beings, and that all Member States have pledged themselves to take joint and separate action, in co-operation with the Organization, for the achievement of one of the purposes of the United Nations which is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion,


Considering that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, colour or national origin,



Considering that all human beings are equal before the law and are entitled to equal protection of the law against any discrimination and against any incitement to discrimination,



...



Considering that the United Nations Declaration on the Elimination of All Forms of Racial Discrimination of 20 November 1963 (General Assembly resolution 1904 (XVIII)) solemnly affirms the necessity of speedily eliminating racial discrimination throughout the world in all its forms and manifestations and of securing understanding of and respect for the dignity of the human person,



Convinced that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere,



Reaffirming that discrimination between human beings on the grounds of race, colour or ethnic origin is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same State,



Convinced that the existence of racial barriers is repugnant to the ideals of any human society,



Alarmed by manifestations of racial discrimination still in evidence in some areas of the world and by governmental policies based on racial superiority or hatred, such as policies of apartheid, segregation or separation,



Resolved to adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial discrimination,



...



Desiring to implement the principles embodied in the United Nations Declaration on the Elimination of All Forms of Racial Discrimination and to secure the earliest adoption of practical measures to that end,



Have agreed as follows:

PART I

Article 1


1. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.


....


4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.



Article 2


1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:

(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to en sure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;


(b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;


(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;


(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;


(e) Each State Party undertakes to encourage, where appropriate, integrationist multiracial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division.



2. States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case en tail as a con sequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.



Article 3


States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.



Article 4


States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:



(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;


(b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;


(c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.



Article 5


In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:



(a) The right to equal treatment before the tribunals and all other organs administering justice;


(b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution;


(c) Political rights, in particular the right to participate in elections-to vote and to stand for election-on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;


(d) Other civil rights, in particular:



(i) The right to freedom of movement and residence within the border of the State;


(ii) The right to leave any country, including one's own, and to return to one's country;


(iii) The right to nationality;


(iv) The right to marriage and choice of spouse;


(v) The right to own property alone as well as in association with others;


(vi) The right to inherit;


(vii) The right to freedom of thought, conscience and religion;


(viii) The right to freedom of opinion and expression;


(ix) The right to freedom of peaceful assembly and association;



(e) Economic, social and cultural rights, in particular:



(i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration;


(ii) The right to form and join trade unions;


(iii) The right to housing;


(iv) The right to public health, medical care, social security and social services;


(v) The right to education and training;


(vi) The right to equal participation in cultural activities;


(f) The right of access to any place or service intended for use by the general public, such as transport hotels, restaurants, cafes, theatres and parks.



Article 6


States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.



Article 7


States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention."


MIS

Waking Up

I am Malaysian but am not certain anymore what that means. On a daily basis, I am being told, directly or indirectly, that in having been ‘given’ the right to label myself a Malaysian, I have no right to a view. I am told that I should be more respectful of my context, of the tolerance that is being shown to me and my 'kind'. I am told to be satisfied with what I have been ‘given’ and if I am not, I should go back to wherever it is I came from, ‘pendatang’ that I am.

I come from Penang. I am not clear how going back there is going to make me feel any different.

The civics classes I had to attend (thankfully, compulsory religious classes were not in vogue when I was in primary and secondary school) must have had some impact. I have, like others, a certain level of public spiritedness. I have like others, a certain level of desire to be active in shaping the society around me into a fair, just and productive one. With the Creator’s grace, I have been given the means to do this, in part by having become a lawyer, a state of being which puts me into direct contact with one of the key aspects of how we organise ourselves in this community.

However, I am no longer certain whether I am to do this at all, and if so, how it is I am to do it. I am being told by things happening around me that some of us are more Malaysian than others, and that that some Malaysians (these more Malaysian Malaysians) are quite happy with the way things are, and if the country is headed in a direction that I do not particularly like, it does not matter, as even if the country is driven to ground, it is a decision made by persons having a bigger entitlement than I do.

The “I deserve to be here more, and my views are weightier” approach is worrying. It does not recognise a very basic feature of our constitutional democracy; that we are all equal stakeholders. The approach seems to have become more prevalent in recent times. The reason for this is multi-layered but I believe it starts with the fact that we are all concerned with the way things are going. The metaphorical pie is getting smaller and competition for that reduced resource stiffer. Competition within the ethnic groupings is intensifying, perhaps now outweighing competition between ethnic communities. When things get difficult, it is easier perhaps to cast a stone outside the community, at the 'barbarians' at the gate. The UMNO reaction to the AP scandal last year year showed this clearly. Any other approach would necessitate having to accept difficult truths. And as a nation, we find it inordinately difficult to accept such truths.

We live in a society in which our racial and, more recently, religious differences are emphasised on a daily basis. And though to a significant extent multi-racial Malaysians have found a way in which they can live with each other, this does not translate into the picture of multi-racial harmony that our administrators attempt to characterise it as. Every so often, we are reminded that for those of us that may be bold enough to think about expressing a view, let alone actually express it, there is a particular sensitivity that we might offend, and a law which might be used to sanction and a cell with our name on it. It is unsurprising that some, if not many, feel disenfranchised and even disillusioned.

This state of affairs has led to a non-partisan, non-involved approach to life on the part of many a Malaysian. With pressing concerns about communal politics, (for all purposes and intents) one party rule and the right to meaningful access to meaningful justice, it is unsurprising that citizens have their backs to the wall even as they dream of a better place to live in. The sooner we realise this state of affairs and begin dealing with it, the better.

There is another layer to this. Sad as it is, and as difficult as it is to say, we are no longer the learned or mature society that we perhaps once were. In place of sophisticated and objective analysis of crucial issues, there is now a regime of sensationalist ignorance and belligerence.

Worse still, we live in a state of denial, insisting that we are more advanced and intellectual than we really are. Look at the issues that figure prominently in the arena of public discourse. How many of these relate to the fundamental aspects of our lives as Malaysians. Admittedly, civil liberty issues such as nude squats and burial rites are important, but where do a lack of coherent economic policy, a lack of coherent governance, a lack of political foresight, an overemphasis on vested interests, institutionalised and crippling corruption and a lack of direction for this great country of ours figure? They do not, in any meaningful way. In having allowed these crucial issues to fall by the way side, in having allowed ourselves to become more interested in being titillated by insane billionaires, sex scandals, Mawi and Academia Fantasia, we have begun throwing away our future.

I used to think that this was due wholly to a media block by the authorities, implemented in tandem with a policy of de-education. I have reconsidered my view and believe that a large part of this is due to an inability, and a lack of desire, on the part of Malaysians to articulate themselves anymore. This is why our media is devoted to gossip and our broadsheets reduced to tabloids. We are all to blame.

By taking sensationalist positions, be it on racial or religious grounds, we are perpetuating the context that has led the country to where it is. And where is it, some of you might ask. Take a look around you. We are somewhere near the bottom. Stock market performance indicators suggest that as an emerging market, we are far behind Mexico, Argentina, India and China. In the Southeast Asian region, we have been left behind by neighbours who we traditionally condescended down to. In Indonesia and Thailand, effective economic policies have created amongst other things a potential powerhouse of agricultural based SMIs, increased revenues and the GDP. Sweeping democratic reforms have allowed for a meaningful reshaping of the economy and political landscape. Important issues are being debated; openly and with the hope that the dialogue will have some bearing on things as they stand.

As Malaysians, we can rest assured that with proposed Islamic snoop squads, even more regulation over our personal lives, and the continued vigilance of our censors and their censors our moral futures are intact. Even as we delude ourselves into believing that spending then kind of money we do on our daily needs, from foodstuff to electricity and water, is perfectly justifiable and fair. Even as we delude ourselves into believing that inflation is not a problem in this country. Even as we potentially plunge headlong into a financial crisis which may take us down the road towards non-emerged nation status. Ethnic and religious bigotry will provide no solutions then, just as they provide no solutions now. Sloganeering will not take us any further.

We have only one country. It is ours. As tempting as it might be for some to believe, and to perpetuate the belief, the majority of citizens are not about to abandon this country when it hits rock bottom. And it will not be surprising that of those of us who actually ultimately flee to greener pastures, or abandon ship, a significant number will be made of up those who, according to popular logic, have no place to go except their ‘tanah air’.

It bears restating: we validate the impression that we do not have a stake in the country if we do not act like stakeholders. Malaysians of all races and backgrounds are to blame for what is that is happening.

If effort can be made to stay up and watch Akademi Fantasia, then should we not be registering as voters and exercising that one most fundamental of all rights? Should we not be familiarising ourselves with the critical issues from more than just a sensationalist perspective. Why is that I would stand a better chance of getting a head to toe analysis of the Razak Baginda case than I would a view about water or toll concessions, or a judicial appointments commission.

Isn't it time we all woke up to reality?

MIS

"Islam-as I say-tion"

I have been struggling to give expression to the anxiety I have been experiencing at the way in which Islam is being articulated and implemented in this country. It is a process which stands out more for its emphasis on form over substance, its rigidity and repressiveness, rather than its emphasis on values and truths.

This afternoon, I was privileged to have read a very moving account of a man’s search for his religion and his commitment to it once he found it. In an article entitled ‘Islam-as I say-tion’: The Slide Into Tyranny?’, Haris Ibrahim has given voice to my concerns in a way far superior to any effort of mine would have ever been.

Haris Ibrahim is a friend and colleague. He was the first amongst those of us who now fight under the banner of Article 11 to see the extent of the difficulties that were soon to engulf this nation. He has been steadfast and unwavering in his belief that it is a slavish adherence to the rule of law that will allow all of us, Muslims and persons of other faiths, to fulfill our religious aspirations. He has followed through in deed and action and has been at the forefront of efforts to promote constitutionalism and the rule of law, in court and outside it. His strength has been an inspiration and his friendship a guiding light. It is through Haris and the work that he brought me into that I began to discover the Islam that I now fight for; an Islam that emphasises justice and truth, compassion and mercy, and above all, a true submission to God.


“Introduction.

I am not a scholar of Islam. I can neither read nor write Arabic. I have never received any formal training in the exegesis of the Holy Qur’an.

However, over a period of some twenty years, the last ten of them with the aid of dictionaries, concordances, lexicons and transliterations, I have ploughed through over 21 different translations of the Holy Qur’an.

I am now firm in my conviction that the Holy Qur’an is truly the inerrant Word of God.

In the last nine years to this date, I have tried to live the Islam of the Holy Qur’an.

As I understand it.

There are laws in this country, though, that prohibit me from trying to live the Islam that I have come to understand, if my understanding does not conform with the decrees issued by councils of men, known as the ‘Fatwa Committee’ or ‘Fatwa Council’. These laws, and these councils of men, are part of a process that has gradually begun to impact on the lives of all Malaysians. Those steering this process would have us believe that the ‘Islamisation’ of Malaysia is their goal.

In a Malaysiakini report dated 24th July, 2006 entitled ‘10,000 Muslims attend forum centred on apostasy’, Azmi Abdul Hamid of Teras is reported to have said:

“We have every right to seek the continuation of this process of Islamisation”.

Azmi’s quoted statement, for me, raises the following questions:

1.what does Azmi mean by this ‘process of Islamisation’?

2.Azmi speaks of the continuation of this process. When did it start?

3.Who are the ‘we’ that Azmi speaks of?;

I have grave reservations about this ‘process of Islamisation’ that Azmi speaks of. I am very concerned about this ‘Islamisation’ that we see unfolding in our country...."

(Read more here)

MIS

No Discrimination Please, We’re Malaysians

Equality? What’s that?

Perhaps it has been the years of abuse that has been permitted under the guise of the NEP or the devastating continued and divisive emphasis on race and ethnicity by our leaders and politicians. Whatever the cause, most Malaysians have become cynical about Unity and Equality.

The former has become nothing more than a political catchword heard more often as General Elections draw near. The latter is a word that even politicians fear to use, possibly fearing that they might be called upon to justify what they have said. I would think that any attempt to articulate Equality against the backdrop of contemporary Malaysia is akin to taking a stroll in a minefield.

Think about it. When did you last hear a politician say the word Equal when talking about Malaysians. I do not think I have ever heard it being said. I hear, all the time, “We are all Malaysians” or “This is for the good of all Malaysia”, or words to that effect. But never “We are all equal” or anything like that.

But why should that be the case? The law does not support discrimination.


What Is The Law?

The Constitution is built on a foundation of non-discrimination. Each citizen is guaranteed basic rights, including the right to equality (Article 8). This particular right is structured around two central pillars: the right to equality before the law and the right to the equal protection of the law. It is put this way in the Constitution:

“8. Equality.


(1) All persons are equal before the law and entitled to the equal protection of the law.


(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.”


The provision means what it says. There shall be no discrimination on the ground only of religion or race or gender (amongst other things). That means every one of us is entitled to say that we want our place in the sun, to quote the Raja Muda of Perak. We have an equal right to define ourselves by our own religions, race, and gender. We are all guaranteed an equal right to avail ourselves of the law, the principles of which are equally applicable to all of us. After all, we are all guaranteed an equal right to participate in representative government through the right to vote.


What About The Special Status Of Malays/Natives Of Sabah & Sarawak?

My first posting on this blog explained the impact of Article 153 of the Constitution, the provision providing for special status for the natives of Sabah and Sarawak and the Malays ("A Matter Of Protection, Not Privilege"). It bears repeating: the provision allows for limited preferential treatment for the purpose of protection. The provision does not bestow privileges on the communities identified nor does it create a privileged class.


What About Islam?

What about Islam then, some might ask. The Constitution does not in any way provide that Islam is to be preferred to other religions. To the contrary, the Constitution declares that all religions may be practiced in peace and harmony (Article 3(1)).

Similarly, the Constitution does not provide that Islamic law is to be applied in preference to civil law. Instead, the Constitution envisages that in matters of public and private law, secular law is to be applied. Islamic law is to be applied only in respect of matters of Islamic personal law and to persons professing the religion of Islam. As to what that personal law is, it is for the relevant legislative body to enact law to provide for it.

The question then is whether the existence of an Islamic law system for the application of muslim personal law discriminatory i.e. in violation of Article 8? The answer is no as Muslims are legitimately treated as a class or category distinct from others. This is contemplated by the Constitution which envisages the application of Islamic personal law to Muslims. Constitutional theory permits what is referred to as ‘rational classification’ where it is necessary to view individuals as belonging to a class. This permits a difference of treatment between members of that class and non-members. In this case the distinctive feature of members of the class in issue is the professing of the religion of Islam.

It follows that Islamic personal law cannot be applied to non-Muslims. Civil law applies. Further, all members of the non-muslim class are to be treated equally and have equal protection before the law in so far as personal law considerations are concerned. Subjecting non-Muslims to Islamic personal law would be in violation of Article 8. It would be discriminatory.

In all other aspects save for where Article 153 is applicable, all Malaysians are to be treated equally.


Where Does That Leave Us?

With the right to insist on equality of treatment. Such insistence is in no way a challenge to the special status of the Malays as contemplated under the Constitution. Equality of treatment can co-exist with measures aimed at providing protection to the Malays. Equality cannot however co-exist with a 'privilege' system. In the same way, Unity cannot co-exist with a 'privilege mindset'. Continuing to delude ourselves will only be to the detriment of the nation. All of us will be affected, Malay and non-Malay.

Isn’t it time for us to start insisting that our politicians start using the E word?

MIS