The Lingam Video: Why A Royal Commission Is The ONLY Way To Go

With so much being said about the video, it is important that we understand why civil society is demanding a Royal Commission.

Investigative Powers

I have written about Royal Commissions (see here). The analysis stands. It would be useful to remind ourselves that a Royal Commission has powers conferred on it by law to take all necessary fact finding steps in order to achieve its purpose. This is important as the Commission would have to otherwise depend on the largesse of parties concerned.

This is an important consideration. The special Investigative Panel has no powers in law to compel the surrendering of documents, the attendance of witnesses and so on.

With raises an interesting question. If the Panel has no investigative powers, then why is the Government insistent on adopting this course of action instead of putting in place a fully empowered Royal Commission. The answer may lie in a consideration of the mandate of the Investigative Panel.

The Mandate

As was confirmed by the Chairman of the Investigative Panel, Tan Sri Haidar, the mandate of the Investigative Panel is ONLY to determine whether the video is authentic (see Malaysiakini report, ‘Is the video authentic? That’s the panel’s ONLY job’).

This is curious for two reasons. Firstly, there is the question of the expertise of the members of the Investigating Panel. It would appear that the question of authenticity is a technical one. We must note that authenticity of video is to be distinguished from the authenticity of the events depicted in the conversation i.e. whether the conversation did take place. It is uncertain whether the Investigative Panel is mandated to look into this aspect as well. Judging from media reports, this does not appear to be the case.

Secondly, to limit the mandate of the Investigative Panel to only determining authenticity appears to be a pre-judgment of the video NOT being authentic. This is because if it were authentic, the implications and ramifications are tremendous and very grave. The Government does not appear to be too concerned with the possibility for were it so, the mandate would have been broader and more all encompassing.

Implications And Ramifications

It would be useful to consider what these are. These include the following:

• At the time of the recording of the video, external parties i.e. other than those constitutionally provided for, were involved in the process of appointment and promotion of judges;
  

• At the time of the recording of the video, the appointment and promotion of judges on the basis of ‘allegiance’, ‘predisposition’ and ‘partisanship’ rather than on competence and independence;
  

• The complicity of the Government in such appointments and promotions;
  

• The possibility of such external interference still occurring and having been made the basis of subsequent appointments and promotions;
  

• The effect of such external interference on decisions in cases before the courts, especially those involving the parties implicated by the video; and
  

• The indirect effect on the culture of the judiciary with regard to the decision making process i.e. the condoning of such interference by the Government being a signal that judges were, and are, free to decide cases on other than a merits basis

The foregoing becomes even more significant when one has regard to the fact that the Chief Justice, Tun Fairuz, has held the position of Chief Judge Malaya, President, Court of Appeal and Chief Justice since the alleged recording of the video. Furthermore, with the much complained delay in appointing the Chief Judge Malaya and President, Court of Appeal with the retirement of Tan Sri Siti Normah and the demise of the late Tan Sri Malik Ahmad, Tun Fairuz was in effect coordinating the activities of all the courts, at all levels. This in turn raises questions about whether:

• External considerations have been involved in how panels of the Court of Appeal (which usually sits in panels of three judges) and the Federal Court (panels of three or five judges) were selected; and
  

• External considerations have been involved in how appeals were scheduled for hearing and which panels they were scheduled before.

If in fact the video is authentic, and Keadilan has indicated that it is, the tentacles have reached deep into the heart of the administration of justice. They still hold it in their grasp.

It is for this reason that a suitably empowered AND independent Enquiry Panel is crucial to ensure that the truth is revealed.

Semblance Of Independence

It is not sufficient that the matter is investigated independently. It is crucial that the investigative process is seen to be investigated independently. There are several dimensions to this:

The Investigative Panel is appointed by the Government. The Government is implicated and CANNOT be involved in the investigation. It is not enough that the Government declares that the Investigative Panel will be left to do what it has to do. The mere fact of an association with the Government already undermines the process. The aim is to restore public confidence in the Judiciary. The public will not be confident if the Government is involved. A Royal Commission is sufficiently independent of the Government for this purpose

The members of the Investigative Panel must also not be seen to be connected with the Government or any of the parties seeming involved in the matters arising from the video. Both Tan Sri Haidar and Tan Sri Lee Lam Thye are in one way or the other associated with the Government or Tun Mahathir (who has also been implicated by the video). This is not to question their integrity but rather to point to th distinct possibility of their decisions being questioned one way or the other.

The Appropriate Mandate

For the reasons set out above, only a Royal Commission would suffice. Additionally, the mandate of the Royal Commission must address the question of the authenticity of the video AND the implications and ramifications.

The People’s Parliament Petition

The Petition to the DYMM Yang Dipertuan Agong by the People’s Parliament has been structured to address the matters discussed. It is imperative that the Petition be supported. Please sign up if you have not done so already. Every signature counts.

MIS

The Judges Say 'Aye'

Here's an excerpt from an interview of Datuk K.C. Vohrah, Datuk Shaik Daud and Datuk V.C. George (retired judges of the Court of Appeal) by Shaila Koshy of The Star (read full interview, 'Weighing State Of The Judiciary' here).

I had the privilege of appearing before all three judges and have remained in contact with them. They are men of principle whose views are worthy of consideration. All three are missed at the Bar.

The excerpt says it all. These three distinguished and widely experienced judges support the call by the Bar for a Royal Commission to probe into the Lingam video scandal as well as the establishment of an independent commission for the appointment of judges.

As for Nazri, what else is there to say.

MIS

"Are you in favour of a Judicial Commission?

George: I hope there will be an independent Judicial Commission to ensure an independent, incorruptible, and competent judiciary. I cannot stress more strongly the need to investigate and assess a person before they are appointed.

Merit is not an issue in deciding promotions if the person was of good quality, character and morality at selection.

Vohrah: Definitely. After Suhakam's forum on the right to an expeditious and fair trial in 2005, we called for a commission in our report, saying the competency of judges had a bearing on the efficiency of the judicial system. I want to add that there have been some good people in the AG's Chambers who should have been made judges but they were not appointed.

Shaik Daud: A Judicial Commission would be a good start (to restoring public confidence in the judiciary). It can enforce the code.

A panel of inquiry is investigating the video clip but do you think there is a need for a royal commission of inquiry to examine the affairs of the judiciary in light of all the complaints that have arisen since 1988?

George: The panel is only looking at one issue. I think the Bar is on the right track in calling for a royal commission to look into all aspects of the judiciary.

Vohrah: Yes. A royal commission could explore all aspects of the ills besetting the judiciary. The problems are far-reaching and something has to be done fairly quickly before the judiciary slides further down the track. "

Burma: The Struggle For Freedom

(Photo by Ko Htike. See here)

A prayer for our friends in Burma. The quiet resolve, strength and compassion of the monks and the Burmese who have rallied around them is humbling, a lesson for all of us who claim to understand what freedom is and the price of that freedom. They have stood, and are standing, firm against bullets and force, injury and death, in their pursuit of truth and justice.

The numbers of dead and injured are rising rapidly now as the military attempt to regain control in the only way it understands, through force. The massacre of 1988 in which 3,000 plus persons were killed by the military as it opened fire on demonstrators is a daunting specter, a grim reminder of what the military was, and perhaps is, prepared to do to keep itself in power.

The people of Burma are asking for no more than what each of us aspires to, a meaningful life.

We must help. Support the movement for democracy in Burma.

MIS

Petition For Royal Commission: The People's Parliament

The People's Parliament has launced a petition rakyat to the DYMM Yang Dipertuan Agong for the establishment of a Royal Commission. Haris Ibrahim writes:

The People’s Appeal To His Majesty The Yang DiPertuan Agung

On 19/9/2007, the nation was rocked by another scandal, this time in the form of a video clip which exposed what appears to be a telephone conversation between senior lawyer VK Lingam and another person, allegedly fixing the appointment of ‘friendly’ senior judges.

A careful study of the monologue presented in the video clip leaves a very clear impression that the telephone conversation is indeed between VK Lingam and the present CJ, Tun Ahmad Fairuz Sheikh Abdul Halim and relates to the appointment and promotion of judges. Other judges are also named in the course of the conversation.

That Tun Ahmad Fairuz had, subsequent to the release of the video clip, first responded that he would need to first view the video clip before saying anything, then issuing a ‘no comment’ response and only lately and that too through a third party making a bare denial of being a party to the conversation leaves us, the rakyat with a sense that Tun Ahmad Fairuz has not responded with complete candour on this matter.

This scandal now casts serious doubts on the suitability of Tun Ahmad Fairuz to head the judiciary as well as on the propriety of the appointments and promotions, made on the recommendation of Tun Ahmad Fairuz, of several judges of the High Courts, the Court of Appeal and the Federal Court.

We, the rakyat, no longer have any confidence whatsoever in the judiciary.

We, the rakyat have noted for some time that some very senior judges have been constantly overlooked in the numerous promotion exercises that have proceeded during the tenure of Tun Ahmad Fairuz, with junior judges being preferred.

We the rakyat have also noted that it was recently reported that Their Royal Highnesses acting through the Conference of Rulers rejected two nominations by Tun Fairuz for the position of President of the Court of Appeal and the Chief Judge of Malaya although these positions had been vacant for a long time. It is rumoured that those nominated by Tun Fairuz were junior in comparison with many other more senior serving judges.

We, the rakyat, have further noted that there is at least one judge promoted to the Federal Court who, it is reported, has failed to deliver written judgments in up to as many as 35 cases, with the result that appeals by many who have been convicted of offences and are in prison are unable to have their appeals heard.

This most recent scandal also raises again real concerns about the sudden change of the trial judge in an ongoing murder trial in Shah Alam.

We, the rakyat, are also gravely concerned about the recent decisions in several high-profile cases and whether these were ‘fixed’ by Tun Ahmad Fairuz and, if so, the implications it has in relation to the other judges of our superior courts.

The reaction of the Prime Minister, other members of his cabinet and the Attorney-General to the matter of this video clip give us, the rakyat, no reason at all to believe that this scandal will be honestly investigated so that the truth of the matter will never be known.

We, the rakyat, do not believe that the Prime Minister and his present government are committed to getting to the bottom of this scandal and, if ascertained to be the truth, to take all necessary steps to restore the judiciary as a constitutional institution emplaced to independently defend the constitution, the rights of the rakyat, and to uphold the rule of law.

In this regard, the announcement on 25/6/2007 by the Deputy Prime Minister of a 3-man panel to be headed by one who was implicated in the sacking of Tun Salleh Abas in 1988 to now investigate this scandal fortifies our belief that the present government is determined that the truth in relation to this scandal never becomes known.

We, the rakyat, are gravely concerned that if this scandal is left to be investigated by the administration of the Prime Minister, the police or the Anti-Corruption Agency, the rakyat will only witness another cover-up, leaving us, the rakyat without any recourse to justice, ever suspicious whether the judiciary is to protect the rakyat or the interests of a chosen few.

This most recent scandal raises concerns whether the corruption that has become so prevalent in the management of this country has now also made its way into the judiciary.

For these many reasons, we, the rakyat, now pray that Your Majesty may be so moved and in the exercise of the full powers conferred on Your Majesty ... [read more here]

Sign the petition by sending an e-mail with your name to savethejudiciary@gmail.com. Show your commitment to the nation by providing your full name and NRIC number. We must seize this opportunity to begin the process of change.

MIS

HAKAM Press Statement: The Video Controversy

JUSTICE MUST BE SEEN TO BE DONE

HAKAM supports the call by civil society for the establishment of a Royal Commission of Enquiry to enquire into the video recording of a senior lawyer apparently in telephone conversation with a senior member of the judiciary whom many have formed the view is the current Chief Justice.

If the video recording is genuine and the telephone conversation did in fact take place, the implications are of grave concern, undermining the integrity of the entire judicial system. These implications include:

• Extraneous influence having been brought to bear on the judicial process in so far as the appointment and promotion of judges are concerned;

• The possibility of extraneous influence having been brought to bear on the manner in which cases before the courts have been dealt with;

• The possibility of such or similar extraneous influence or influences still being brought to bear on the judicial process;

• The existence of a system of patronage within the Judiciary and the absence of the requisite separation between the Judiciary and the Executive; and

• The independence of the judiciary and the judicial process being questionable.

HAKAM views with concern the denial by the Honourable Prime Minister, as reported by the media, of a need for a Royal Commission. The Judiciary is one of the three primary organs of the state and is vital to the separation of powers. Continued public confidence in the Judiciary is of paramount importance and it is essential that public confidence be restored. It is indisputable that the video recording has shaken to the core the confidence of the nation in the Judiciary. If left unaddressed in a manner that is meaningful to citizens, will have serious repercussions. A denial of the need for a Royal Commission is a denial of the aspirations of Malaysians for a fair and just society.

It is imperative that the matter be investigated into urgently and with the transparency a Royal Commission will allow for. Justice must not only be done, it must be seen to be done.

HAKAM urges the Chief Justice to himself support the call for an independent and transparent investigation in deference to the need for the semblance of justice. It is further only appropriate that the Chief Justice distance himself from matters at hand by taking a a leave of absence pending the completion of such investigations. A show of humility of this nature will go far to begin the process of restoring confidence.

Malik Imtiaz Sarwar
President, National Human Rights Society
24.09.2007

Of Flag Burning And Trampled Constitutions

In what has come to be seen by many of us as standard operating procedure, the authorities and Barisan Nasional MPs have sought to divert attention from the core issues of the events at Pantai Batu Buruk, the refusal/rejection of a permit for a peaceful gathering for legitimate purpose, the possible deployment of agent provocateurs and the questionable shooting of unarmed persons. This time, the focus is the burning of the Malaysian flag during the ensuing melee (see, for instance, Anger Over Burning Of Jalur Gemilang, The Star).

Thus far we have heard justification after justification from the authorities as to their actions at Pantai Batu Buruk. The version of events presented by the police appears absolute, if only for the fact that its version has been stated unequivocally. This is surprising in light of the varying accounts of what transpired, in particular as to the shooting. An apparent eye-witness has made statements to the effect that the police officer was shooting over his shoulder as he was running away from a group of unarmed individuals (see here). This contrasts with the description by the Chief of Police, Trengganu of the shooting as having been in self-defence by a police officer who had fallen to ground and was in fear of his life.

We have not heard of a firm commitment from the authorities that an independent and impartial investigation into the event and its causes will be conducted in a transparent manner. We have heard instead of SUHAKAM initiating a fact-finding mission. Some of the rakyat are calling for a Royal Commission. Whatever the case, it is manifest that an impartial and transparent enquiry is essential.

What I fail to see is how and where flag burning fits into all of this. Prosecuting the perpetrator (or perpetrators) does not address the core issues identified above. It does not address the endless complaints about the unnecessary use of force and excessive use of force by the police nor the unconstitutional requirement of a police permit for peaceable public gatherings. It does not in any way address the injuries, both physical and legal, of the victims of the shootings or the others who were injured by use of force when none was required.

And, as to the flag burning itself, though many of us would view the burning as a desecration of the flag and an a highly offensive act we should take a step back and attempt to see whether there is an alternative dimension. I do not mean to refer to the possibility of agent provocateurs having burnt the flag to agitate reactions. I refer instead to the possibility that the flag was burnt as an expression of rejection of the Government for it having abandoned the ideals that Malaysia represents to us all: freedom, justice and equality. Let me expand on this.

The Malayan flag came into existence when Malaya gained independence in 1957. In 1963, with a variation to reflect the entry of Sabah and Sarawak, the Malaysian flag was flown. Farish Noor has written an interesting explanation as to how and why we came to have our very own version of the Stars and Stripes. I can do no better than to refer you to his article, Our Other Flag That Never Was.

Like the Federal Constitution and the national song, Negaraku, the flag was a symbol of the basis of our commitment to self-rule. Malayans saw before them a glorious future in which each of them would have, to quote the Raja Muda of Perak, their "place in the sun". The understood these symbols to represent the commitment of the Government of the day, and all Governments that were to follow, to protect and ensure that glorious future through a strong adherence to the Rule of Law and the fundamental assumptions of democracy: freedom, justice and equality.

I agree that no one can claim rights to the flag. This however has ramification. It means that in as much as an individual cannot claim the flag as his own to do as he or she pleases, neither can the Government. The Malaysian flag, flying as it does over Putrajaya, does not act as a magical prism through which the actions of Government are miraculously justified. Each and every action of the Government must be examined on its own merits. Similarly, flying a Malaysian flag does not symbolize support to the Government.

Our Government however takes a different view. Allegiance to the flag is allegiance to the Barisan Nasional. Patritorism is measured by allegiance to the Barisan Nasional Government (how else can one begin to understand the aku-janji that academics have been asked to sign?). The rhetoric around the flag, and the presumption on the part of the BN government to the effect that ‘BN is the country’ reflects this. It is worth remembering that the term ‘Jalur Gemilang’ only became the official name of the flag in 1997 during the 40th year celebrations.

Having taken and projected that position, it is not surprising that in the minds of some a desecration of the flag can reasonably be interpreted as a rejection of the government of the day and all it stands for. There is absolutely nothing wrong with declaring the view that Government of the day deserves no support. The million dollar question is whether burning the flag as a means of expressing it is acceptable in law.

Fundamental liberties or freedoms mean nothing if they are upheld only when convenient or when it is popular to do so. Freedoms are freedoms because they ensure the means to the kind of life that each of us uniquely aspires to. Defining freedoms by reference to popularity rather than the need to ensure the crystallizing of the unique aspiration is a sure means to tyranny in one form or the other and the destruction of liberty. As Bertrand Russell observed in an essay entitled What Is Freedom? (1952), the “only kind of freedom which is undesirable is that which diminished the freedom of others”.

The freedom of expression is guaranteed under the Federal Constitution (Article 10) in these terms: every citizen has the right to freedom of speech and expression. The word ‘expression’ is not defined but case law from the Common Law world includes expression other than by speech (which is why the guarantee in Article 10 makes a distinction between ‘speech’ and ‘expression’. Flag burning has been declared by the US Supreme Court to be a legitimate form of expression (see US v Eichman (1990) and Texas v Johnson (1989) in striking down anti-burning legislation.

Needless to say, ‘expression’ is not limited to expression that is popular. As the majority in Eichman observed:

“While flag desecration - like virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous caricatures - is deeply offensive to many, the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

The rationale of the observation is pithily declared by Voltaire’s oft quoted sentiment, ‘I disapprove of what you say, but I will defend to the death your right to say it.’

Were it to be otherwise, then the UMNO supremacist posturing we hear each year would not be permissible. The posturing would be a slur against the freedoms and equality guaranteed by the Federal Constitution. Similarly, the use of ‘kafir’ rhetoric by PAS would similarly be unacceptable. We must not lose sight of the fact that the freedom, and the lack thereof, manifests in our lives in so many different ways. Human rights are indivisible.

And as for the flag burning, should we not be more concerned with the fact that the ideals embodied by the Federal Constitution, in as much as they are symbolized by the flag and the national song, are being trampled on by those who have stewardship of this nation?

All actions must be measured by the same yardstick. That is the essence of democracy. And that is what the Malaysian flag symbolizes.

MIS

Democracy? What Democracy?

We are not a democracy just because the Government says so. The Military Dictators ‘East of the Iron Curtain’ called themselves democrats (Betrand Russell, What Is Democracy?). Yet, more and more, the Government expects us to believes its assertions. Blindly, and some might say, deafly.

Think about it. How can the Government of the day claim that we have a democracy when:

• The electoral process is questionable. From concept – the first past the post system is archaic and not necessarily reflective of the aspirations of the rakyat – to implementation – consider the concerns raised by BERSIH. The BERSIH initiative appears to have touched a nerve. How else can we explain the rejection/withdrawal of the permit for the Pantai Batu Buruk ceramah?
  

• Malaysians are not given vital information which would be relevant to the exercise of their right to choose. The Government takes the position that there is no freedom of and to information.

1. The Official Secrets Act, in its present form – a version that is the product of amendments pushed through by the Mahathir Administration – shields from scrutiny almost all, if not all, matters of State deliberated by Cabinet or the State Exco.
2. Newspapers cannot be published without permits. Permits are issued at the ‘absolute discretion’ of the Government. Permits are not issued with ease. Keadilan’s application for a permit for a party news periodical has been kept on ice for a long while now. PAS got a permit for HARAKAH but was allowed only to circulate the periodical to its members. The mainstream newspapers are selective in their reporting, with minimal to negligible coverage of crucial matters. Such limited journalistic freedom as exists is tightly regulated through threats of closure and action so as to have caused a policy of self-censorship.
3. Blogs and bloggers have come under attack.
4. The freedom of assembly is non-existent. Permits are required for gatherings of 5 or more individuals in public. Forums, ceramahs and the like are regulated in a way which suggests an arbitrariness on the part of the administration. This impacts on the ability to communicate information.
5. Private gatherings can be broken up on the basis that the event causes a disturbance of the peace even if this is not the fault of the organizers of the event. The Article 11 events in Penang and Johor Baru, and the arrests of participants at and organizers of the 2nd Asia Pacific Conference on East Timor (APCET) in 1996 illustrate this
6. The Internal Security Act is used like a very big stick. This Government is no stranger to the detention of political and civil society activists. Detentions are not reviewable. This and selective prosecutions over dissemination of information through anti-expression laws – the convictions of Lim Guan Eng and Irene Fernandez are testament to this - have a chilling effect on the expression of views and information.
7. Parliamentary debate is tightly regulated by the Speaker in a manner which restricts free discussion of matters crucial to the national interest. The current Speaker of the Dewan Rakyat is appointed by the Government.
   

• Parliament is controlled by the Government, the election of Barisan Nasional Members of Parliament having been achieved, in part, through the matters set out above and election tactics that have been criticized (see BERSIH).
  

• The Judiciary. Enough has been said about this institution. It has been quite happy through the validating of legal provisions that bar judicial scrutiny and review and the fiction of parliamentary supremacy (we have a written constitution which declares itself the supreme law; that means constitutional supremacy) to wash its hands of a number of matters of crucial significance.
  

• The Police lends itself to Executive will and direction. Police brutality continues, despite 2 commission of enquiry and various SUHAKAM reports. Special Branch continues its operations, though there does not appear to be any publicly available information as to what this section of the Police does, officially or otherwise

Democracy? What democracy?

**

The curious thing is that most of the above could not be achieved without the law to allow for it. Individuals we elected into parliament made the laws that are now being used against us. What does that say about us and our choices?

Laws that are made can be unmade. They can be repealed, or amended. Governments can be changed and called to account.

Everything starts with you.

MIS

Do You Remember, Mr Speaker

That when you took office, you took an oath that you would “faithfully discharge the duties of that office to the best of my ability, that I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its Constitution."

In return for your commitment to the defence of this nation and its ideals, you were and still are guaranteed by law a salary paid from the Consolidated Fund. The monies in this fund are monies raised or received from the Federation. Monies raised from the hard work of Malaysians, the majority of whom pay their taxes in fulfillment of their end of the bargain, of their respective duties to this nation. They pay and they pay, with the strain of an existence that is difficult at best for many, every bead of sweat on their brow a testament to their will to survive.

I ask you, Mr Speaker. Do you think that you are honouring these Malaysians with your actions? Do you think you are preserving, protecting and defending the Constitution that is the only guarantee of the just and compassionate society that these Malaysians are entitled to? The only future that our young deserve?

I fail to see how that could be so when matters of national importance are prevented from being aired by you. It would appear that you act almost mechanically in rejecting motion after motion. The essence of parliamentary democracy is free, frank and fearless discussion in parliament; without fear or favour. And yet, we are seeing almost no significant debate on key issues that affect us all. Parliament has been allowed to be manipulated and I wonder whether you see this.

Do you not recognize that you are a trustee for the Malaysian rakyat? In that, sir, you owe a great duty to ensure fairness. I appreciate that your appointment may have been arranged by those who constitute the Government, and that you are not an elected member of parliament. This does not, should not, make you beholden to the Government, or anyone else for that matter. Your appointment is proof enough of your ability to supervise the Dewan Rakyat as it should be.

By virtue of your position, and the measures provided by the Constitution to secure yourself from arbitrary reactions, you are ensured the means to act in fairness. In doing so, you would be doing nothing more than what is expected of you by the Constitution and the rakyat of this nation.

Act now, sir, in defence of the nation. It is a dark time for us all, all our families, and the fate of this nation rests on the conscience of a few good men and women. The path to which you hold the key is a path that allows the issues that are fermenting in a cauldron of tension to be resolved peacefully through the frank discussion so crucial for the truth.

Remember, Mr Speaker, your oath and the significance of that oath. Remember your sacred duties. And above all, remember Malaysia and its children.

MIS

Why A Royal Commission?

There is a call for a Royal Commission. Some of us may be uncertain what such a commission is and how it can help.

A Royal Commission, as it is popularly known, is a commission that is established under the Commissions Of Enquiry Act 1950 (Revised 1973). This Act authorizes the DYMM Yang Dipertuan Agong to, where it appears to him to be expedient so to do, issue a Commission appointing one or more Commissioners and authorizing the Commissioners to enquire into -

• the conduct of any federal officer;

• the conduct or management of any department of the public service of Malaysia;

• the conduct or management of any public institution which is not solely maintained by State funds; or

• any other matter in which an enquiry would, in the opinion of the Yang di-Pertuan Agong, be for the public welfare (other than a matter involving any question relating to the Islamic religion or the Malay custom and/or inquiries for state purposes where Sabah or Sarawak are concerned.
  

What is important for civil society purposes is that it is the YDPA that issues (or establishes) the Commission. In doing so, there is no need for the YDPA to act on advice of the Prime Minister or Cabinet. As such, the establishment of such a commission is not a decision of the Government to take, or not to take, as the case may be.

This is important as it is highly unlikely that the Government would take any step towards an inquiry that could result in an expose of its wrongdoing. One of the more prominent royal commissions in recent times was the commission that conducted an enquiry into the assault on Anwar Ibrahim during his detention. The findings of the enquiry led to the prosecution and conviction of a former IGP.

As the Anwar Ibrahim commission showed, the powers of such a commission to delve into the evidence, through the summoning of witnesses and the holding of hearings, are sufficiently wide so as to allow for the Commission to get to the truth of a matter efficiently and efficaciously. The fact of its ‘royal’ status and the freedom of the YDPA to appoint His Majesty’s commissioners who are more usually retired and respected judges and community leaders, work towards inspiring confidence in such a Commission’s decision making process and the impartiality of its decision.

The terms of reference of a Royal Commission are determined by the YDPA. In this way, such enquiries differ from those conducted by SUHAKAM whose enquiries are more concerned with the question of violations of human rights or civil liberties. A Royal Commission can go deeper into causes than a SUHAKAM commission can and this, and the fact of the ‘royal’ status of the commission may in some circumstances lend more significance to the report of a Royal Commission.

***

As can be seen from the above, a Royal Commission would be an appropriate way in which the matters of Pantai Batu Buruk as well as the matters raised in the Petition Rakyat could be dealt with. This conclusion is premised on the following:

• a Royal Commission is a method in which the YDPA could meaningfully respond to the call of the rakyat
  

• a Royal Commission would be a way in which a seemingly independent and impartial enquiry process could be carried out. The rakyat have confidence in His Majesty. The Royal Commission would be, in effect, a manifestation of His Majesty’s concern for justice and truth, and his compassion for the rakyat, and the enduring truth of the Rule of Law
  

• a Royal Commission could not only enquire into the events of Pantai Batu Buruk but also their causes including:

1. the reasons for the refusal or withdrawal of the necessary permit for assembly;
   
2. the need for such a permit in the first place; the actions of the police including the use of force and the carrying of firearms;
3. the grievances of the rakyat that led to the fracas including serious concerns about the electoral process and the call for electoral reform

MIS

Petition Rakyat

Malaysia Today has initiated a Petition Rakyat to His Majesty, the DYMM Yang Dipertuan Agong. I think this is an important step forward in the effort to ensure that we have the government we really want, that is A Government Of The People, By The People, For The People.

Somewhere along the way, the rakyat seems to have been forgotten. We are the pawns in a game of politics, control, corruption and greed and those who should rightfully be serving us are making us serve them.

The DYMM Yang Dipertuan Agong is the Head of this Nation. It is right that we turn to His Majesty when all other avenues seem closed to us. The events of Pantai Batu Buruk prove to us that we no longer even have the right to hear ourselves think.

If you think a change - big or small - is needed, if you think that enough is enough and if you are wondering what you can do to help, then go HERE, READ and SIGN ON.

MIS

Not Urgent, Mr Speaker?

(Malaysiakini reports today (“Motion to debate “bloody ceramah” rejected; 11.09.2007)) that the Speaker of the Dewan Rakyat rejected for debate an urgent motion moved by Salahudin Ayub (PAS-Kubang Kerian) to debate the tragedy of Pantai Batu Buruk. The primary reason for this rejection was reported as there being no urgency as the matter was “just a riot” that was under investigation by the police. The Speaker however appears to have agreed that it was a matter of public interest)

Violence, aggression and arrogance. These are the walls behind which our leaders claim to be protecting democracy. They are the walls that keep us away from a fair, just and accountable government. From democracy.

Democracy can only flourish on a bed of truth. Information is key to our freedom of choice. The search for truth, if effected by peaceful means, can never amount to a threat to national security.

The suggestion that a peaceful gathering of Malaysians interested in hearing a viewpoint, alternative or otherwise, could be prejudicial to security or a disturbance of the peace is insulting.

It is insult to those who were present at Pantai Batu Buruk. It is an insult against those of who attended the demonstrations against petrol and toll hikes. It is an insult against any right thinking Malaysian who believes in the freedoms our constitution enshrines. It is an insult to those who struggled before us to pave the way to Merdeka.

Peaceful gatherings are a means of expression throughout the world. This is more so where other forms of expression have been curtailed. It is only in nations where there is no rule of law or the rule of law has broken down that peaceful gatherings are deemed to be a threat to national security. We appear to be such a nation. Time and time again, reports have been issued about the use of force to disperse peaceable gatherings. Time and time again, these reports have alluded to the underlying freedom to assemble and express. Time and time again we have only had more violence in response.

Two Malaysians were shot for making the mistake of assuming that they had a right to defend their constitutional right to free choice. A right to defend themselves against the violence used to quash their freedoms. We are told that they were shot as a matter of self-defence. The question is whose?

Does it matter that they and the hundreds who were trampled under jack-boots, pummeled with batons, pulverized by high pressure water jets laced with chemical additives even as they struggled against the tear-gas did not have the means to defend themselves? Does it matter that the police waged a campaign of aggression as a part of a strategised campaign and given the means to participate?

The struggle for merdeka began long before the Union Jack was lowered. It began long before the diplomacy began. The struggle for merdeka began as an understanding in the hearts of those who saw a life beyond colonization. In attempting to map out their vision, some of them risked arrest, prosecution and brutality at the hands of the colonial authorities then. They accepted that risk, paving the way for the negotiations that gave us our freedom. That gave us Merdeka.

And does it matter that the tragedy of Pantai Batu Buruk would not have happened if the powers that be had allowed these Malaysians to do what it is that they had come to do? To listen.

Malaysians are not the enemy. Our blood, sweat and tears nourish the soil we stand on. Tanah tumpahnya darah ku. The blood shed - be it from having been beaten by batons, or pummeled with fists, or kicked with boots and now from a gunshot - is being shed by Malaysia. For when we bleed it is the nation that bleeds.

Guns, water-cannons, tear-gas canisters, batons, shields, sticks and stones. Prosecutions, jail, detention without trial. They cannot, must not be allowed to, stand in the way of truth.

Freedom is our birthright. Malaysian blood is being shed over that freedom. Is that not a matter of urgency?

MIS

Riot? What riot?

Once again we have the government condemning the so called rioters at Pantai Batu Buruk. We hear of a need for stern action.

The government’s response is typically what it always is in situations like this. Sweeping, muddling and having a tendency towards obscuring the truth of the matter rather than accounting for it.

Could what happened on Saturday night and early Sunday morning be characterised as rioting? Is an expression of disagreement with government policies articulated through state machinery an act of rioting? More so where the laws are enforced in way which is undermining of the very freedoms the State is bound to protect.

Consider this:

• The people gather to hear viewpoints.

• These viewpoints are matters which they are guaranteed a right to hear. These viewpoints are matters which go to the freedom to choose so essential to democracy.

• The people do not have access to these truths due to restrictive policies where the media is concerned and a bias against any views other than those of the government.

• Laws are designed to restrict access to such viewpoints.

• As a result, citizens have no real and meaningful avenues to get these viewpoints other than to attend events like the BERSIH event on Saturday night.

• The event, and other such events, are impeded by a unconstitutional permit application processes.

Where do the people turn to? What choices do they have?

I do not countenance the use of force, any force. But I am hard-pressed to conceive of any practical alternative those who made the effort to make their way to Pantai Batu Buruk had. It would appear that all attempts to reason with the police had failed. Were it not the case, there would have been no reason for the police, who had been present from as early as 5 pm, to have engaged with water cannons and tear gas at 10.30 pm. The fact that the crowd remained until that point time clearly demonstrated their desire to have the event proceed. The fact that the police only engaged at 10.30 shows that there was no disturbance before then.

What does one do when one’s democratic rights are wrenched away through authoritarian measures? If it was an enemy of the state who had done so, those who reacted on Saturday night would have been given medals and called ‘freedom fighters’.

Further if it is true, as the Opposition claims, that there were ‘agents provocateurs’ who incited the events that took place, could the events at Pantai Batu Buruk be condemned as they have been? When it is the police force itself that engages in the use of methods designed to agitate and create unrest, can the unrest instigated in this way be properly made the basis of aggressive response of the kind that we saw over the weekend, and at a high number of peaceful civil society public gathering over the last two years?

‘Agent provocateurs’ incite crimes. They cannot be equated with undercover agents. The actions of the former more usually create the criminal intent later made the basis of action, either by response through the use of force or through prosecution. The actions of the latter however do not create the criminal intent and instead more usually allow in the uncovering of the criminal intent. Agent provocateurs are criminals themselves.

Who is to be blamed, if the accusation of the Opposition is true?

The human condition should not be put to test by the authorities when they know that there is a high probability of a response. It is like playing with fire.

MIS

Seriously, Mr Deputy Prime Minister

The updated Malaysiakini report about the events at Pantai Batu Buruk, Kuala Trengganu describes the Deputy Prime Minister as defending the action of the police on the basis that it was their duty to ensure law and order.

I take this to mean a justification of even the firing of a firearm resulting in the serious injury if one, if not two, young Malaysians.

Do you seriously believe what it is you are saying, Mr Deputy? How is it that you know as a matter of fact what happened at the debacle? Why is it that you have preferred the version of events that has been presented to you over other possible versions? What could justify the use of such force against unarmed citizens, especially in the presence of such a significant number of police officers, citizens who were attempting to exercise their constitutional and democratic rights?

Or is it that we, the rakyat, do not matter anymore. That the feelings of the parents, mothers and fathers, of these Malaysians who were injured and others like them, do not figure in the larger reckoning?

Your response is an indictment against the Prime Minister and the Government he represents. Contrary to all impressions conveyed by the sentiment ascribed to you, life is not cheap in Malaysia. All of us, every single one of us, matter.

I call upon the DYMM Yang Dipertuan Agong to urgently establish a Royal Commission of Inquiry. Malaysians, in particular those who were on the wrong end of the water cannons, tear gas, batons and bullets of the police, and their loved ones, deserve to know the truth. About the events that resulted in the shooting and other as yet unascertained injuries. About the denial of the constitutional right to reform and a better government.

The attack was not an attack on individuals but against all Malaysians and democracy.

We deserve an accounting.

MIS

Of Peaceful Gatherings, The Freedom Of Speech And Live Ammunition

You would have read or heard of the shocking events in Kuala Trengganu late last night and early this morning. Let us look at these events in perspective.

A coalition aimed at nothing more than a free and fair electoral process, BERSIH (Coalition For Free And Fair Elections), is on a road show aimed at promoting awareness of the need for free and fair elections. This is, in my mind, a nation building effort in light of concerns about the state of the electoral process in Malaysia.

Last night, as a part of the on-going roadshow, a forum was intended to be held at Pantai Batu Buruk, Trengganu. A report appearing in Malaysiakini (Live Bullet Fired At Angry Ceramah Crowd) tells us that the organizers had applied for the necessary permit and had assumed that the ‘event would be given the green-light’. BERSIH events appear to have been held prior to this without any problem (see here for events held to date).

Tan Sri Khalid (PKR) and Mohamad Sabu (PAS) were to speak.

The police refused a permit. No explanation appears to have been given for this refusal. [Update: The updated Malaysiakini report states that a permit was in fact given but withdrawn at the last minute]

From the Malaysiakini report, a report appearing on Harakah online and a sequence of events provided by BERSIH (see here), the following can be discerned: a police cordon was established from as early as 5.00 pm. A stage set up for the event was ordered to be brought down at about the same time. A crowd began to gather. There was a significant police presence. By 8.00 pm, the Riot Squad (Federal Reserve Unit, FRU) began to direct the dispersal of the crowd. The crowd grew in number. At about 10.00 pm the stage set up for the event was torn down. The crowd became agitated and began to engage with the police officers. By 1o.30 the FRU began using water-cannons and tear gas, and continued to do so until about 1.30, at which point the FRU began to withdraw.

Live ammunition was used. The Malaysiakini report quotes the the Trengganu Police Chief as admitting that a shot was fired. He stresses that only one shot was fired. The Bersih and Harakah reports suggest otherwise.

As a consequence 2 persons, described as youths in the Harakah report, have apparently been injured (one, Suwandi Abdul Ghani, directly by the bullet and the other by 'percikan dari beberapa tembakan'). The Trengganu Police Chief asserts that this was in defence against an assault by a group of individuals. No suggestion has been made that any of the said individuals were armed. Further, no explanation has been offered as to how and why other police officers were not on hand to assist.

The BERSIH report states that the shot to was fired by a plain-clothes officer who had apparently infiltrated into the crowd. He was recognised and chased by a group of individuals who were throwing stones, apparently firing at them as he was attempting to evade them.

The Harakah report suggests that other shots were fired. No report states that a warning shot was fired first.

The matters described above are shocking, not only for their brutality but for their implications.

I believe the police acted unconstitutionally and, as such, wrongfully . Malaysians have a constitutional right to assemble peaceably and without arms (Article 10(1), Federal Constitution). This is a right that can only be curtailed by Parliament through restrictions deemed necessary or expedient in the interest of the security of the Federation or any part thereof or public order (Article 10(2), FC). The provisions of the Police Act prohibiting unlicenced public gatherings and making it mandatory to apply for licences for public gatherings must be read in the light of the constitutional guarantee.

Malaysians also have the right to express themselves (Article 10(1)). They also have a constitutional right to free and fair elections. The expression of concerns about the electoral process and the need for reforms is a matter of great constitutional significance. This goes to the heart of democracy in this country. The refusal by the police to grant a permit for the event, such refusal being by law permissible only where the supervising police officer concerned is satisfied that the event is not prejudicial to the security of the Federation or likely to cause a public disturbance, was an act in violation of both letter and spirit of the Federal Constitution and an exercise in arbitrary decision making.

The use of any measure to impede the right of assembly and expression and further, the use of force and all such measures employed, is unconstitutional. The use of force and live ammunition is of grave concern. The police were not dealing with armed assailants. They were dealing with person-on-the street Malaysians.

The matters above suggest that the authorities, and any government that supports them by leaving their actions unaccounted for, believe that:

• events aimed at promoting awareness of the constitutionally provided free and fair electoral process are events that are prejudicial to the security of the Federation or will cause public disturbance;

• use of force is permissibe to disperse gatherings of Malaysians interested in hearing more about the process in the exercise of their constitutional right to the freedom of assembly and expression. Such use of force would include shooting at individuals who are not bearing firearms or, apparently, no other arms; and
  

• police personnel deployed to deal with peaceable gatherings where no arms are apparently being carried are permitted to carry arms and live ammunition and use such weapons at their discretion.
  

If we are a constitutional democracy, as the Prime Minister says we are, how has it come to this? A Malaysia where force of arms is used against Malaysians exercising their constitutional rights to freedom of choice. What happens next? The dismantling of general elections?

For those of you who need more proof of the collapse of the Rule of Law in this country, look no further.

What say you, Mr Prime Minister?

MIS

Flying The Safe And Friendly Skies

I am due to depart from Brisbane shortly. As I walked through immigration and luggage screening a short while ago, two security officers pounced on me. I must say that they, an older woman (W) and a younger man (M), looked positively delighted at the opportunity to finally put into practice the theory it must have been painstaking for them to learn. They were not the intimidating, sweat inspiring types we see in the movies. These two looked like they could be guest relation officers at a theme park for children. As they shepherded me to the designated area, I swear I could see them trying to remember their lines. And to appear nonchalant and suave as they told me, almost with a nudge and a wink, that I was being randomly selected for a more thorough check. Random? I don’t think so. The delight they were expressing made me think that they had probably been waiting for a very long time for someone who looked like me.

I was taken into a makeshift room and told by W to assume the position – hands outstretched - for a further screening with a hand held device. As I was trying to do that, I was asked by M whether I had a laptop, even as he looked at my laptop (I was trying to put it back into my messenger bag when I was pounced upon). I told him I did indicating the laptop he was looking at. He asked me to put it into my bag. As I was trying to, he told me they had to screen my bag first. W meanwhile was trying to screen me. M asked whether I had internet access, glaring at me in what I suppose was intended to be an intimidating manner rather that the cute and cuddly it was. I told him that my laptop was wifi enabled. He looked bewildered. W interceded, saying ‘wireless’ sagely, nodding as she motioned me forward for the screening.

It was surreal. I wondered whether David Lynch had spent some time in Brisbane Airport.

Somehow, it all happened. I was screened. And the results of the screening tested through a machine designed to pick up traces of explosives were negative. I was fitting my laptop back into my bag when W exclaimed, in a happy, 'you’ve won the lottery' voice, ‘Congratulations! You’re clear.’ M tells me with a big smile, ‘You’re really lucky!”, stopping short of clapping me on the back, I think.

Alright, I had the luck to run into not one, but two, rednecks in Brisbane Airport Security. They deserved starring roles as deputies in re-runs of The Misadventures of Sheriff Lobo. But, honestly, ‘congratulations?!’. For what, NOT being a terrorist? ‘Lucky?’ For what, NOT having carried explosives this time?!

But then, even as I was plotting how to exact some pain for this ridiculousness, I realized that in as much as I was offended by the obvious profiling that had taken place, we had our own share of prejudiced idiots on the Muslim or Indian or Pakistani or Malaysian side (depending on how I am categorized). People who were as inept and unprofessional as these two were. And our society is guilty of praising its own purported professionalism and sophistication as much as the next, even though there is little or no basis for such claims. Who was I to expect from these security officers what I would not even dream to expect from our security personnel.

I walked away into the departure area trying my very best to look like a thwarted terrorist. I figured it was the least I could do for them. After all, everyone deserves a little sunshine in their lives from time to time.

I tried not to think about what would happen if they chanced upon someone who was really intent on mayhem.

MIS