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Wednesday, October 31, 2007

The Call For Judicial Reform

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

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

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

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

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

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

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

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

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


An Open Letter to YM Sultan Azlan Shah

Your Royal Highness,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, October 29, 2007

Mr Incredible (The Missing Sections)

I erroneously omitted reference to additional parts of the interview. This was entirely my mistake. The additional parts appeared under 2 separate captions. Both parts are reproduced below with my comments in bold/italics. I apologise for the error.


If you tell the truth, what is there to fear?

Q: The third party that brought forward the video clip says they are not going to talk to the panel; it is only going to talk to a royal commission.

A: We cannot be dictated to. Before we set up the royal commission and go to the next step, we have to verify first. This is a complaint against the judiciary. You have to verify the authenticity of the video clip first.

Of course, the authenticity of the video clip has to be verified. This however does not appear to be a difficult task. And there is apparently no need for the full clip in order to do so. So, it is possible to infer that the Government is keen to identify the identity of the whistle-blowers. This is worrying as it not only shows that the core issue may not be addressed but that, consistent with past practice, the whistle-blowers may face reprisal.

Q: If people come forward and give their statements to the panel, and the authenticity of the video clip is verified, what would the next step be?
A: If it was verified to be true, the next step would be to investigate the judiciary, the person there.

The process of ensuring that the video clip is in fact a genuine item does not require people coming forward. It is a matter of technology. Thus far, the rakyat have not been given any technical explanation as to why the full clip is needed for the process of ensuring authenticity. The Minister’s statement that the ACA only has to view the whole clip, without even taking a copy, reinforces this.

Q: Using what?

A: Maybe a royal commission.

Q: Why not just set it up from the beginning?

A: No, you can’t. If you set up a royal commission over something that is false, it’s a waste of time. It is important to verify the authenticity. The video clip is like a surat-layang (poison pen letter).

For every surat layang that comes along, should we set up a royal commission? There must be a genuine complaint before we set up a royal commission. For as long as we cannot verify the authenticity, equate the video clip to a surat layang.

A royal commission is a serious matter. So, the allegation must be serious.It has to be a genuine concern. It cannot be a surat layang, or a false video clip. Malu kita nanti. (Or it would be embarrassing.)

It is a genuine concern. And a Royal Commission is the only way the authenticity of the video ought be determined.

Q: There is less than two weeks for people to come forward with what they have. Are you hoping that they will?

A: I hope so. We set up the panel to investigate the authenticity of the tape.

The investigative panel, by its own admission, has no power.

Come forward, lah. Apa nak takut? Takkan kita nak bantai orang kita! (What’s there to be afraid of? We won’t beat up our own people!)

The Government has prosecuted whistle-blowers before. Irene Fernandez’s conviction is a stark reminder.

Every five years, we put ourselves up as candidates for election. If we do something wrong, do you think that people will let you go just like that? No way!

Q: Maybe the informants’ concern is not so much the government, but that the parties in the video clip might take action against them.

A: But that is something beyond us. Even for us, if we do something, the lawyer can also take action against us.

The Government prosecutes, detains at will and can do a range of things. The Minister is being disingenuous.

It is not only the informant who will be left unprotected, the government can also be sued by the lawyer.

The right to sue is separate and distinct from the range of reprisals a whistle-blower may face. Furthermore, the Judiciary is under scrutiny. One cannot expect the whistle-blowers to feel confident about their rights being held by the very institution they have implicated. This is a question of the whistle-blower’s confidence and not one of objective theory.

But that’s how it is. We can only do certain things. Beyond what we can do, we can’t promise. Even the panel can be sued.

Q: So how is anyone supposed to do their work, if they are not protected?

A: If you tell the truth, what is there to fear? If you write something about a person, and the person sues you for libel, you can plead fair comment, and you can get away.

If someone sues us, it does not mean that we are guilty, we have a defence — fair comment, doing our duty — you have to go to court, lah. The only thing that we cannot guarantee is that you will not be sued by anyone. But when you go to court, you have all these defences. What should you be afraid of?

Let them take us to court — bukan kita bersalah (we are not at fault). In court we will fight it.

Is the Minister willing to give an assurance that the ISA will not be used. The Judiciary is in issue here.

Q: Where is the Witness Protection bill now?

A: At the moment, it is at various ministries and agencies for their comments. When the cabinet approves it, the bill will be sent to parliament.

In other words, nowhere near a point where the whistle-blowers can rely on it

Q: You have said that even without a Witness Protection Act, the government can still protect witnesses.

A: There are specific acts which provide protection for informants. If the government decides that it wants to protect informants, like in the case of the video clip, that is something which we can do.

Q: So, why do we need a Witness Protection bill?

A: At the moment, the various protection (clauses) are in various acts, so it would be better if we could compile them into one singular act. At the moment this is berterabur (all over).

So, we want to protect the informers in general, so we should have one specific act.

This is well and good. The immediate question is what protects the whistle-blowers? The Minister has no answer.

Q: If someone were to come forward now, on the video clip, how much protection could you offer?

A: We can offer any protection, for as long as it is not against the Constitution or against any laws.

The Minister should explain how this is to be done.

Q: But that requires the person to come forward first. This is no guarantee of protection.

A: He can always communicate (his protection requirements) through a third person. Whatever we can do, we’ll do.

Much ado about nothing

Q: What happens, if, by the closing of office hours on Nov 7, no one has come forward to the Independent Panel) ?

A: Then, I think you, too, can conclude that there’s nothing to discuss. It’s (the video clip) not genuine. That’s all.

This is a baseless assertion. The authenticity of the video clip does not depend on any party stepping forward. This goes to show that there is apparently no will to investigate into the issues arising. There is enough circumstantial evidence to found the basis of an investigation.

Q: So, the conclusion is that there is no issue?

A: No issue.

What about the serious implications and the national interest?

Q: But at the same time, a video clip has been released, there’s been a walk, there’s been concern?

A: Much ado over nothing.

On the part of the nation. One wonders whether the Minister realizes he is a Malaysian Minister.

Q: So, the government’s not going to do anything?

A: What can we do? We already set up the panel, if people don’t want to come, what do you expect us to do? There’s nothing we can do. It’s not our problem.

It is the Government’s problem. It is a national problem.

Those people who are supposed to be informers or witnesses should come forward. If they don’t come forward, what can we do? You’re going to be angry with whom? With thin air? Close-shop, habis (it’s over).

Q: Would you be sad, if no one came forward?

A: Ya. I feel that if I make a complaint, and the government sets up a panel, I would be very pleased to co-operate. But when the government responded, by setting up the panel, it’s really sad, because we could have looked into the real issue.

But because this is a video clip whose authenticity has not been verified, then no further action can be taken.

The constant repetition of this phrase without any substantiation is grating. There are ways in which the video can be tested to show that it is a genuine clip. The Minister has not explained why these ways are not being utilized.

Sunday, October 28, 2007

Mr Incredible

Nazri's interview with Aniza Damis of the NST ('Interview with Nazri Aziz: The walk, the video, the panel', 28.10.2007) is classic Nazri. In his inimitable style, Nazri reminds us of how much we are to blame for the Government we have.

I am at a loss as to how to summarise the points he makes without doing him too much justice, so I have set out the interview below. It is a chilling indication of how far removed the Government is from the needs and aspirations of the people, of how drunk with power those who lead us are. It dramatically underscores the need for us to start thinking about what we need to do to improve the system around us. Judging by Nazri's comments, the Government is in no hurry as its interests, and by that I take it those of the individuals who form the government, are served.

My comments have been inserted (bold, italics) where necessary. The version set out is from the on-line edition of the NST. I have not edited text, but have compressed sentences for ease of reference.


Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri Abdul Aziz, who is the de-facto law minister, talks to ANIZA DAMIS about the controversial video clip, the judiciary, the Bar Council and bloggers

Q: Is there a crisis in the judiciary? Why is there a perception of there being one?

A: There isn’t a crisis. It’s a false allegation. The perception has been created by some people. When I go back to my constituency, nobody talks about it. When people do not go to the courts to settle their disputes, that’s when there’s a crisis. But I don’t see that. The few people who are unhappy, make a lot of noise. It is reported, people read, and think there is a crisis.

Crisis means it involves the whole country but nobody talks about it. I even asked my fellow members of parliament (MP) but nobody talks about it. So, what crisis are we talking about? The crisis is in the minds of those who created it.

This is hardly a surprising answer from this Minister. Is there a crisis? The answer is obvious. If true, the video shows that appointments and promotions were not made on merit but rather allegiance. It shows that corporate and political interests were factors, as well as patronage. It shows that at least one senior member of the Judiciary (if the conversation was in fact with a senior member of the Judiciary), responsible for appointments and administrative decisions, was beholden to external parties and was prepared to exercise discretion and make decisions by reference to external considerations. If true, the rot has gone deep. This is a crisis.

If it was not a crisis, why did the Government set up the Investigative Panel.

And, as for talking to his fellow MPs, the Minister is obviously not talking to the right MPs. The Opposition has been screaming for a Royal Commission.

Q: Some 1,000-2,000 lawyers were involved in the Bar Council walk. Are you saying that that many lawyers have been misled?

A: Only 1,000 went to the ground. There are 13,000 registered members of the Bar.

Q: You don’t think 1,000 is enough?

A: 1,000 of 13,000 — is that a majority? What’s the big deal?

In a democracy, the minority cannot control the majority. The minority does not speak for the majority.

The Bar marched. The Bar is charged with upholding, without fear or favour, the due administration of justice by the Legal Profession Act. The Bar and the Judiciary are the twin pillar of the justice system. It was and is a big deal.

Democracy is not about majoritarianism. It is about exercise of rights by the majority having regard to the rule of law and the Constitution, and with regard to the equal rights of all. If it was a question of simple majority, the law would be as dictated by the majority. Though the Minister appears to think that this is the case, this is not the correct position in law. The Constitution does not appear to figure in the Minister’s analysis. This is surprising considering the oath he took to uphold the Constitution when being sworn in as a Minister and a Member of Parliament.

Q: Aren’t the views of the minority also important?

A: But (they are) not (the) majority. If there are any decisions to be made, it has got to be the majority.

The views of all minorities are important. It is the Rule of Law, not Rule By Law. It is might for right, and NOT might is right.

Q: So, if you wanted to be convinced (that there is a crisis), you would need 7,000 lawyers to walk?

A: Even then, it’s still not important to us, because the lawyers are not the only people who use the courts. The ordinary people use the court in their disputes.

It must be a majority of the population who feel that there is a crisis. Otherwise, there is nothing.

The population, reflected by civil society, has turned to the Bar for leadership on this issue in light of its pivotal role in the justice system. Civil society itself has reacted. Civil society is made up of a range of interest groups, of diverse backgrounds.

If it did not matter, why was there a tremendous police presence during the march.

Q: Do you really want that many people marching in the streets?

A: No. You don’t have to have millions of people marching in the streets. Let the people decide, whether there is a crisis or not, through the legal means of sharing your dissent or anger — through the ballot box.

The events of Pantai Batu Buruk and all the other demonstrations held recently show how the Government would react to a gathering of the rakyat. Nazri himself has declared that the Election Commission is not independent.

A: Then you can say, “Let’s have elections once every three years then.” We have to work within the system that we have.

Q: So, what you are suggesting is, if people are unhappy with the judiciary, they should vote BN out?

A: Ya.

I disagree. The Government is not the Judiciary. The Judiciary is not the Government. I do agree that amongst other things, the rakyat should treat this as an election issue.

Q: But what if people want a BN government, but they also want you to ensure a clean judiciary?

A: So then go talk to the judges — why talk to us? I’m the Executive. How can they ask me to sack the chief justice (CJ)?

No one is asking the Minister to sack the Chief Justice. The rakyat are asking for a Royal Commission of Enquiry. The Minister is being disingenuous. The power to suspend and enquire is with the Agong acting on advice. The power to establish a Royal Commission is with the Agong. Petitions have been submitted to the Agong asking for a Royal Commission.

There is no question of speaking to the judges. The Head of the Judiciary is the Chief Justice. He is implicated.

Q: You’re the de-facto Law Minister. And they are not asking for a sacking — they are asking for a more transparent appointment system.

A: We’re talking about the independence of the judiciary. I don’t speak for the judges. You want to clean up the judiciary, go and speak to the judge.Then, once the judges decide, we will accommodate the procedures. Lawyers can criticise the judges or judiciary if they want to. But if I, as an MP, criticise, then I am interfering. So, the best thing the lawyers can do is speak to the judges — tell them how important it is to clean up the judiciary.

I’m sure the judges are also concerned about their image. And if they so decide, and say, “Look, it is time that we change", then we will accommodate them — amend the Constitution, or whatever. It has to come through the judiciary — not from me. When they (the lawyers) went to the prime minister they are asking him to interfere. Tak boleh (Cannot).

Twenty years ago, they were very angry with us. The prime minister used the procedure to sack the CJ. Now you are asking us to use the procedure to do the same thing? Why is it that 20 years ago we cannot do that, but now we can? Is this at the whims and fancy of the Bar Council members?

I feel their problem is with the individual; not with the system.

There is a Malay saying: Marah nyamuk jangan bakar kelambu. You are upset with one individual, you want to throw away the entire system. Later, if you have another system, and you don’t get along with the CJ, do you want to change the system again?

The Minister is being evasive. The system has been utilized by the Executive to appoint the Judges we have. The video, if authentic, reveals how the system has been manipulated. This manipulation, if true, has been permitted through the system simply because it is not transparent nor is anyone directly accountable for the appointments.

The system of appointments and promotions is, as such, open to abuse. This is why the system needs to be improved. An improvement can only be in the interests of the nation as it will directly manifest in the competence, quality and independence of the Judiciary. That is why the Bar has asked for the establishment of an independent commission for the appointment and promotion of judges.

Speaking to the Chief Justice is out of the question. He is implicated. He who is to be judged ought not judge. It is as simple as that. The Government itself is implicated and should not be acting in its own cause.

Q: But if we had a transparent system, perhaps all judicial appointees would be acceptable to the people.

A: But if you have a royal commission for the appointment and promotion of judges, you might not agree with the decision, too, because members of the royal commission are also human beings. Tell me, who appoints the commission? The system is the same. The appointment of the commission will be made by the king, on the advice of the prime minister. The commission would be there, but the Bar Council will not be happy, and then you’ll have another system (change).

The Minister is being evasive. A system can be fashioned to ensure, as best as possible, the right process and, accordingly, the right appointments on the basis of merit, competence and impartiality. The English system, recently introduced, relies on a Judicial Appointments Commission which makes recommendations. Though the Lord Chancellor is entitled to reject the recommendations, he must give his reasons in writing. These reasons can thus be scrutinized.

The members of the Commission could be senior members of the civil society, the civil service and retired judges. They must, of course, be persons of integrity and in whom the rakyat have confidence. This is not an impossible requirement. The Minister should not allow his cynicism to stand in the way of good judgment.

Q: Can the commission be appointed by consensus or stakeholders?

A: Why stakeholders? Stakeholders are people too. Do you want to have an election? You know what will happen — people will campaign to become members of the commission and then they’ll be compromised, because they want to be chosen by the people. And then the judges will have to kow tim (settle) with them again — it’s the same thing.

The Minister appears not even to have considered the many models available, some of which have been found to be satisfactory. There is a wealth of literature on the subject.

Are we to change just because 1,000 lawyers are unhappy? The Constitution must be amended by two-thirds of MPs; and the two-thirds represent the majority of the people. If we MPs are not convinced, how can we amend the Constitution? We can’t listen to the views of just 1,000 lawyers. Since when was the view of 1,000 lawyers more important than that of the 11 million who voted for us?

Lawyers are not the only stakeholders. It is also the people in the streets — they are the ones who go to court.

A former Chief Justice, Tun Dzaiddin, recognized that public confidence in the Judiciary was at an all time low when he came into office. Nothing has changed since then. Independent international monitors, such as the World Bank, have noted a decline in public confidence. This is not only about 1,000 lawyers. This is about a system that should work the way it should.

And do all the Barisan MPs agree with the Minister?

Q: You have said the government was happy with the current system of appointments. Why?

A: We found that the system works for us. We inherited this system (from the British), and for 50 years it has served us well. Something which has not brought us any problem, why should we change?

The system works for the Government? Perhaps the Minister should explain what he means by this statement. The system should work for all. That is what ‘independence’ means.

The system shifted in practice post 1988. There has been minimal or no consultation with the Bar on appointments and promotions. This had been the practice before 1988. There appears to be no coherent basis for promotions, this has been at the whim of the Chief Justice. The video, if authentic, points to this fact.

If we need to change this system, we would need a clear indication from the judiciary.
Even then, before you change you have to go and see the Malay rulers. Out of courtesy, you have to tell them. Any slight change, we have to see the Malay rulers first. Once they agree, then you’ve got to get the agreement of the judges also, because this involves them.

The question is has the Government seriously appraised the situation? What steps has it taken to do so. Have the Rulers been appraised. All we have heard is dismissive remarks.

I am only interested in no interference by the Executive. When I became minister in charge of the judiciary, I wanted to make sure that what happened 20 years ago should not happen now. So, please do not ask us to interfere with the judiciary.

The Minister is not in charge of the Judiciary. The Chief Justice. The Minister of Law is responsible only for the administrative aspects of the system, not the justice system.

We are interested in there being no interference by the Executive too. The video, if authentic, shows that there was and could still be interference. The letter written by Syed Idid J showed that there was interference. There appears not to have been any meaningful investigation into the allegations in the said letter. If there had been, the rakyat have not been told of the same.

The prime minister is a good man, he respects that, so he doesn’t interfere. That’s why you can see judges now making decisions which may sometimes be negative towards the government. That’s okay.

I am glad the Minister thinks so. I wonder when Hishamudin J and other deserving judges are going to be promoted.

They are free to make their decisions without interference. The same goes for how judges should be appointed. But if the call for change comes from the judges, it’s okay.

Q: Is the tenure of the chief justice going to be extended?

A: I don’t know. I don’t know anything.

If he is the Minister in charge of the Judiciary as he claims, why does he not know?

Q: The video-clip issue will not yet be settled at the time of his retirement (scheduled for Thursday). Don’t you think that it’s rather unfortunate for him to retire before this matter is settled?

A: I don’t know whether it’s fortunate or unfortunate. That is the prerogative of the prime minister.

Q: Has the prime minister indicated anything to you?

A: No. As I said, I don’t interfere. I only do things which the prime minister asks me to do. I never ask about things that I am not supposed to be making decisions or that I am not supposed to know.

The Minister admits that his views are those of the Prime Minister.

Q: If you just take into account what is printed in the media and what comes out in the blogs, it would appear that there is a crisis in the judiciary.

A: To me, if there were no newspapers, if there were no blogs, then it’s just mere chit-chat in the coffeeshop. That’s all.

And the video is obviously fictional as well. The view in a hole in the sand is not a comprehensive. Acting like an ostrich will definitely make the Government myopic.

Q: Coffeeshop chit-chat is not important?

No. The people are important. This is a government elected by the people, for the people. So, people means the majority. If we didn’t have blogs, if we didn’t have newspapers, who in this world would know about it? But because of technological developments, you are able to chit-chat (about it). It’s just chit-chat.

It is not just chit chat. There is meaningful discussion taking place in society. But then, the Minister has already declared that as the Government has two-thirds of parliament, nothing else really matters.

Q: But the fear that is felt is genuine.

A: So what do you want me to do? Ban all these bloggers? Shut down all the newspapers? I don’t think so. We must live with the fact that this is now a modern world. Technology has enabled us to get to know each other so news gets moved faster.

No, the Minister should address the concerns and fears. He, and the Government, should recognize that they serve the rakyat. The rakyat does not serve them.

Q: So, you don’t think it’s important to try to address the worries of these people?

A: No. It’s not important. Why do you put so much importance on bloggers? You know what rubbish has been written in the blogs?

The Minister has admitted that the he, and by virtue of his acting only on the instruction of the Prime Minister, and the Prime Minister do not care about the worries of the people.

Whether blogs carry ‘rubbish’ is a matter of opinion. The rakyat are allowed their opinions. Just as the Minister is.

Q: Do you read blogs?

A: I don’t. I don’t waste my time. The few pieces that people print for me are just rubbish. I’d rather spend my time to do things that are constructive; that go down directly to the people who are really in need of the help of the government. Our bloggers are really not up to standard. When they put up something, it’s not something that they want to discuss in a very intellectual way. It’s more because of their anger - the language they use. Why should I read all this rubbish? When the standard of our bloggers is upgraded, then probably I will look at what is written. But anyway, they are a minority. My concern is for the majority.

A Government’s concern should at all times be for all, and never just for the majority. Who is the Minister helping, who are these people who are in need of help? Is the Minister willing to admit that the press is regulated in a manner that has denied Malaysians of crucial information. Blogs have been at the forefront of bringing to interested Malaysians opinions and information essential to their making informed decisions.

Q: Indians in Malaysia are a minority. Does that mean that they don’t count?

A: No, not in that minority sense. I am talking about bloggers. When you talk about minority in the sense of perkauman, they are very important, because they are our rakyat, a rakyat that needs to be helped. Bloggers don’t need to be helped. They are merely throwing rubbish into the blog.

I have no concern for and care about bloggers.

The problems of Indians as a minority is different from the problems of the bloggers. You must appreciate that. I don’t care about the bloggers, but I do care about the minority Indians. In my constituency, I take care of them. You can go to my constituency and see what I have done for the Indian minority. I was the one to open the training in Mara for the Indian youths. These are my concerns.

Good for the Minister. He should perhaps share what constructive measures have been taken by the Government to address the needs of the Indian community, in particular hard core poverty, education and employment needs. It would be interesting to hear how the Government has approached the question of addressing the needs of marginalized communities in a sustainable and coherent manner.

Q: What did you mean when you said that, by walking, the lawyers were behaving like the opposition?

A: Lawyers have got stature in the eyes of the public. And they are apolitical. Also, I have told them that we will work together; never again should the confrontation of 20 years ago be repeated. It doesn’t look good when the government is at odds with either the judiciary or the Bar Council. So, I opened up the doors, I’ve helped them in many ways, to hasten the Legal Profession Act (Amendment) for instance. I did not close my door to them. So, I was surprised when they suddenly decided to walk and demonstrate. I feel sad, because these are lawyers — my profession also — and I would rather see them being accorded the respect that should be given to them.

If the memorandum is from the Bar Council, they would have been given an appointment to see the PM. I would have preferred that the memorandum was brought to the PM’s office. They would sit down with the PM, discuss for one or two hours, and then hand the memorandum over.

But by walking, it is like you are already partisan, you have already made up your mind to oppose the government; that you cannot work with the government, that’s bad.

The Bar is apolitical. It is neutral. Its sole concern is the due administration of justice.

There is no question of opposing the Government. The Government has emphatically declared its position on the question of a Royal Commission. The Bar has submitted countless memoranda, including one on the establishment of an independent judicial appointments commission. The Minister himself has rejected the need for such a commission on the basis that the Bar does not matter, only the majority does.

The Bar has also correctly taken the position that the question of the video is a serious and urgent one. The Government appears to have taken the contrary position.

Peaceful demonstration is a universally recognize method of expressing a view on a matter of crucial significance. Peaceful demonstrations are not the sole province of the opposition.

Q: Bar Council president Ambiga Sreenevasan said the reason they walked was that they felt all their appeals were falling on deaf ears.

A: It will fall on deafer ears, I can tell you.

And the Minister wonders why the Bar marched?

Q: But why would you want to cover your ears?

A: They should know — they are lawyers. Their profession is adversarial. When they go in to court, there are two sides — the defendant and the plaintiff. Even the two counsel cannot agree on how the law should be interpreted. So, you need the judge.
So, they fight. But at the end of the day, they respect the decision made by the judge. They go out, shake hands, that’s it.

In giving their views on the judiciary, they must understand that there are two sides to the argument. And theirs may not be the right one. So they must accept the decision. As lawyers, they should. They cannot expect that whatever memorandum they give to us, we must agree.

Why couldn’t they have called to make an appointment? I’m sure the PM would have met them.

Deafened ears do not lend to constructive discussion, Minister.

Q: Maybe walking just says that they are partisan towards justice?

A: I wasn’t complaining about their memorandum. It was the way they did it — demonstrating on the street. The opposition was there. When you go on the street, how are you going to stop the opposition from coming in?

In a meeting with the PM, those who are the opposition — who are not genuine lawyers — cannot go in. You should be apolitical. You are an NGO, you are not an opposition party. You have stature, you’ve got a position in public, people look at you with respect.

But the moment you take to the street, who is going to respect you? They’ll laugh at you. There are people who are laughing at you — but they don’t write in the papers Bodoh punya kerja! (fool’s errand).

The only laughter we hear is that of the Minister. This is a serious issue. His responses clearly reflect a cavalier attitude. If this is the Government’s attitude, we can only infer that the Government is in no rush to get to the truth.

Q: Is there anything wrong in walking for your beliefs?

A: No. But that is the way of the opposition. If you are a political party, we can understand. But if you are a respectable society, that’s not an honourable way to do it — not when the government accords you respect.

How can you bring yourself so low? The moment you do that, we don’t respect you.
If I say to you, “M****r*****r you!", can you say, “Eh, let us sit down, we’ll talk about it.” No! You are lawyers, man! People respect you. So, do it in an honourable way.

When the president of the Bar Council wants an appointment with the PM, she or he gets it. That’s how it is. That’s what I wanted, and I would have accommodated that. But they didn’t contact me. I was waiting. Ambiga knows my doors are open.

But, deafened ears, Minister? And profanity is really unnecessary. But then, the Minister is from the same political party as others who use vulgar language in parliament. One begins to wonder whether this is the UMNO ethos.

Q: If, for instance, the Bar Council wants to take that avenue now, can they still take it?

A: They can. I have already told them, go and engage with the judges. But if they ask me to do what they want me to do towards the judiciary, I won’t do it because I am the Executive.

There is no question of engaging the Judges. The Chief Justice is the Head of the Judiciary. He is implicated.

Q: The Bar Council claims that they have never been able to get an appointment with the CJ.

A: He’s retiring anyway.

I told them, “Fairuz is also a human being. Kalau you criticise, criticise, criticise dia — dia mana mau layan you.” (If you keep criticising him, he won’t entertain you). I can get a lot of things out of you if I talk to you nicely, but if I start shouting at you, do you think you will accommodate me? No way!

Extremely mature, Minister. Diplomacy is important but should not be the end all and be all for matters of national importance.

Q: But you are more than an ordinary person. You are also the de facto law minister.

A: But you cannot divorce me from the fact that I am also a human being.

The Minister reminds us often enough by his conduct.

Q: That’s very irresponsible.

A: Human beings, there are ways, how you do it. You want something, you talk. You don’t shout, and then expect to get something, no way.

So, pride and ego before justice and the national interest.

Q: Why didn’t the government empower the panel to compel witnesses?

A: Because we have to first determine the authenticity of the video clip, to make it into a formal and genuine complaint.

And how does a powerless panel do this?

Q: What if the video clip is genuine, but the person doesn’t want to come forward?

A: That’s not our problem. We have already set up the panel, it’s for them. As I’ve said, if I was the one who made the complaint, I would be very happy, I’d come (forward) and co-operate. There’s nothing to fear.

(Opposition MP Lim) Kit Siang said to me this morning (Wednesday) the problem is not that they are afraid of the public taking action against them; but they are afraid of the government.

I think that’s no excuse.

Explain to us then the prosecution of Irene Fernandez and Lim Guan Eng, the continued threats of ISA detention and other threats of reprisal. Explain to us how the whistle-blowers are going to be safe and secure, Minister. There is no legal protection for whistle-blowers. The Government is implicated. Where do witnesses turn to for safety.

Q: Why can’t you set up something that can compel a person to come forward?

A: Then you are forcing people. We want it to be voluntary. When you make a complaint to the police, are you being forced to make the complaint, or do you genuinely want to complain? You see, that is the problem (with the current situation). You have to come to us.

Even if you don’t trust us with the tape, then we can always tell that fellow to come, show the tape, then we see, and you can take back the tape. But even then they don’t want to come forward. And their reason is that they are scared of the government. That’s not a reason.

That is the reason. It speaks volumes about the Government and the rakyat’s perception of the Government. We are a long way from "cekap, bersih dan amanah."

Update: It has been brought to my attention that I had not captured the full version. The missing sections and my comments can be viewed here. My apologies for the inconvenience.

Saturday, October 27, 2007

The Prime Minister Is Angry

The Prime Minister is angry. Again.

Like a record, scratched beyond redemption.
We hear it, again and again
‘Angry’. ‘Outraged’. ‘Disappointed’.
Nothing changes though,
it’s all the same, all the time
What he does when he’s angry,
maybe he forgets when he’s done being angry,
I don’t know. You just hear it.
Again and again

And if he is so furious, so incensed
Why does he still smile?
In all those damned posters
hung all around town,
the giant billboards that, perhaps
are there to remind him of who he is
He smiles in the media shots too,
kissing multi-racial babies in the time of election

He smiled at that party they threw
at his house, that party for the rich and famous
As he kindly celebrated our country’s birthday
on our behalf, sparing us, of course,
the trouble of having to clean up.

That smile. Always that smile.
I wonder whether he was told that
That was THE smile,
the one that would launch a thousand ships
or at least two or three or four,
super economic corridors
I wonder how many attempts they made,
before they got it right, the photo they used

I wonder why he chose that one
Perhaps they said it made him
look strong. Firm. A leader.
‘No, Y.A.B., a GREAT leader!’
Maybe all the others they took were spoilt,
and no one wanted to tell the old man
Just like they forgot to tell the Emperor
that nakedness had nothing to do
with transparent leadership

Perhaps they should have used
a different picture, perhaps not
That is no leader, great or small, smiling down at me,
I do not see a Star. I am not inspired
by the smugness, the touch of vanity
and the smell of decay that seep out like a sepia stain
from the edges of that smile.

You’re angry, are you, Prime Minister?
Tell that to the Malik Husseins,
and the countless who have suffered in silence
As their collective future was sacrificed
in the name of avarice and arrogance at the altar
of political ambition. Choked into silence
by assassins who stuffed the Constitution
down their throats

Tell us you are angry, when you
string those responsible up, like the posters
you smile from. When you deliver to us
the promised land that you seduced us with
Tell us you are angry only when you accept
responsibility, are willing to account.
Only when you give us back Malaysia

You’re angry, are you Prime Minister?
Keep it, say it, to yourself as you
adore yourself in the mirror
each morning. We are not interested.


Friday, October 26, 2007

The Independence Of The Election Commission

The Election Commission is a constitutional body. It is established by the Constitution and given a specific mandate by the Constitution.

Article 113(1) provides that:

"There shall be an Election Commission, to be constituted in accordance with Article 114, which, subject to the provisions of federal law, shall conduct elections to the House of Representatives and the Legislative Assemblies of the States and prepare and revise electoral rolls for such elections."

Further to this, Article 113(2)(i) provides that

“..the Election Commission shall, from time to time, as they deem necessary, review the division of the Federation and the States into constituencies and recommend such changes therein as they may think necessary in order to comply with the provisions contained in the Thirteenth Schedule; and the reviews of constituencies for the purpose of elections to the Legislative Assemblies shall be undertaken at the same time as the reviews of constituencies for the purpose of elections to the House of Representatives.”

From these provisions it is manifest that the Election Commission is charged with the heavy responsibility of ensuring free and fair elections through the preparation of the Electoral Rolls and the delineation of constituencies.

That a key aspect of the Election Commission is its neutrality is, as such, self-evident. It is not answerable to the Executive nor to the Legislature. Its powers are not conferred by the Executive nor the Legislature. Its powers are conferred by the Constitution itself, there being no higher legal authority.

It is also self-evident that the effectiveness of the Election Commission is measured by the confidence of the Rakyat in the Election Commission. For the democratic process to succeed, it is vital that Malaysians believe that General Elections are free and fair. Public confidence is crucial. For this reason, the task of appointing the members of the Election Commission falls to the DYMM Yang Dipertuan Agong and the Conference of Rulers and NOT the Executive. Article 114(1) provides:

"The Election Commission shall be appointed by the Yang di-Pertuan Agong after consultation with the Conference of Rulers, and shall consist of a chairman, a deputy chairman and five other members."

It is significant that the Constitution does not require the Agong to act on, with or after considering the advice of the Executive. The only condition imposed by the Constitution is in Article 114(2) which provides that:

"In appointing members of the Election Commission the Yang di- Pertuan Agong shall have regard to the importance of securing an Election Commission which enjoys public confidence."

In further safeguarding the neutrality of the Election Commission, a Commissioner cannot be an undischarged bankrupt, cannot engage in any paid office or employment outside his/her duties of as a Commissioner, cannot be a member of either House of Parliament or of the Legislative Assembly of a State (A114(3)).

Further, under Article 114(4A), the Chairman of the Commission shall be disqualified from holding such office if after three months of his/her appointment to such office or at any time thereafter he is or becomes a member of any board of directors or board of management, or an officer of employee, or engages in the affairs or business, of any organization or body, whether corporate or otherwise, or of any commercial, industrial or other undertaking, whether or not he receives any remuneration, reward, profit or benefit from it.

These provisions are clearly aimed at ensuring impartiality towards the discharge of function by the Election Commission. These safeguards are complemented by a protection of the remuneration of Commissioners through a provision for the same by Federal Law and the charging of such payment upon the Consolidated Fund (A114(5)). Such remuneration cannot be altered to disadvantage after appointment (A114(6)).

The foregoing clearly puts paid to any suggestion that the law pertaining to the Election Commission was/is designed in a manner that made it subordinate to the Executive or the Legislature.

The only involvement of the Legislature is where terms of office other than remuneration, are concerned. These can be provided for by Federal Law (A114(5A)). Additionally, the rules that the Election Commission puts in place to discharge its function are subject to Federal Law (A113(5)). This involvement is limited and does not, and in any event cannot, justify the undermining of the independence and function of the Election Commission.

The Election Commission is intended to be as independent as the Judiciary and the other Constitutional bodies including the office of the Auditor General and the Attorney General. The constitutional scheme of safeguards is similar.

Any act on the part of the Executive to interfere with the independence of the Election Commission is an unconstitutional, and I would say an illegal, act.


Thursday, October 25, 2007

Thank You For Your Kindness, Nazri

Has Nazri got it right this time?

Nazri is quoted in Malaysiakini ('Nazri scoffs at EC ‘independence’):

“We all know that we have the EC Act. If you take that into account, the EC is bound to the legislature and it is also tied to what we would approve. “So, don’t get too excited when discussing the EC’s independence because it cannot act freely - it is tied to the legislature.”

Those of us who have reacted have obviously misunderstood the genius of the man. Unlike many of his counterparts, the Minister may have been merely stating a truth. The EC is not independent, it considers itself an extension of not just the Government and the Barisan Nasional but UMNO itself.

In doing so, Nazri has been charitable to those of us who have been championing a free and fair election. He has given us proof of what many have only been able to speculate about. For this, Nazri should be given our gratitude. For in doing so, he has shown us that we should be diverting our energy into far more productive things.

For obviously Nazri knows that the Election Commission is NOT a creature of statute; that is it is a CONSTITUTIONAL BODY established under Article 113 and 114 of the Federal Constitution; that by virtue of it being a constitutional body it owes duties in law to, and serves, THE RAKYAT and NOT the Government of the day or the Legislature, which the Government happens to control at the moment, as Nazri constantly reminds us.

Obviously Nazri knows this. If he did not, then he would not be fit to serve as a Minister, nor would he be fit to remain on the Rolls as an Advocate & Solicitor.

Obviously Nazri knows this is the theory of the law. But, being the practical and extremely busy man that he is, he is not concerned with theory. The law, he understands is only as effective as the individuals, and the agencies they make up, that enforce it.

The chairman of the Election Commission seems to support Nazri’s point of view. He has not seen the necessity to correct Nazri.

My fellow Malaysians, we must understand that these are men of incredible intuition and aptitude, compassion and understanding, like the Speaker of the Dewan Rakyat. For like his colleagues, the Speaker understands that theoretical duties and responsibilities mean nothing without their being enforced. His consistent rejection of Opposition motions, the most recent casualty being the rejection of Keadilan’s Emergency Motion on the Judicial Crisis (see Malaysiakini, 'House speaker throws out Lingam tape motion'), is testament to the dynamism of the man.

Thank you, YB and all you men of action.


Sunday, October 21, 2007

Malik Hussein And The Independence Of The Judiciary

The Deputy Internal Security Minister, Datuk Fu Ah Kiow, is wrong. The decision of Mr Justice Hishamudin Yunus in the Malik Hussein suit against the Government for his wrongful detention and torture under the Internal Security Act (ISA) is not testament to the judiciary being independent (see ‘Decision Shows Judiciary Independent’, The Star, 21.10.2007). To the contrary, it is concrete evidence of there being basis for serious concern about the Judiciary and its independence.

The judgment has been declared a landmark judgment simply because the Government lost. When one considers the case brought by Malik Hussein, it would be difficult to see how any judge could have ruled otherwise. This is not to say that the judgment is not exceptional. It is for the fact that it is higly unlikely that many a judge would have ruled against the Government the way Justice Hishamudin did. The judgment is a testament to the independence and integrity of Justice Hishamudin, and his unwavering commitment to the rule of law.

In May 2001, Justice Hisahmudin ordered the release of Reformasi activists, Abdul Ghani Haroon and N Gobalakrishnan from detention under the ISA. They had been detained along with Ezam Mohd Noor, Raja Petra and 6 others. His judgment, which I had occasion to describe then as a ‘pioneering judgment’, was a tribute to constitutionalism and the protection of the individual from arbitrary acts of the Executive. The habeas corpus application for Ezam Mohd Noor and 5 of the others came up before Justice Augustine Paul (then in the High Court). The same grounds were advanced in support with Sivarasa leading the team there, as he had for the Ghani Haroon/Gobalakrishnan application. Justice Paul dismissed the application and held that the detentions were lawful (see here for commentary).

The day Justice Hishamudin declared the detention of Ghani Haroon and Gobalakrishnan, he also made a ground-breaking order restraining the police from re-arresting Ghani Haroon and Gobalakrishnan for a period of 24 hours.

A very short while later, Justice Hishamudin was quite suddenly transferred to the Civil Division of the Kuala Lumpur High Court. By coincidence or otherwise, he was not able to hear any further habeas corpus applications. He however went on to deliver several other very important decisions including the one in which he, correctly in my view, declared the Federal Court judgment in the notorious and highly controversial Ayer Molek case (see here for background) to be unconstitutional. Along the way, he also delivered judgment in favour of Anwar Ibrahim in the defamation case brought by Anwar against Khalid Jafri and also presided over the assault claim brought by Anwar against the Government and the former Inspector General of Police, Tan Sri Rahim Noor (see 'A Judge of the big events', The Star, 20.10.2007)

I have the highest regard and the deepest admiration for this man of principle. I moved the Court for the order suspending the re-arrest Ghani Haroon and Gobalakrishnan. Justice Hishamudin’s sense of fair play and justice came to the fore that day as he recognized that a re-arrest would be inhumane. It was a defining moment, and it shaped my understanding of how far the interests of justice could be advanced with a just man on the bench.

He embodies all the qualities that a Judge should have. His humility, patience and judicious temperament are well known at the Bar as is his willingness to learn from the lawyers appearing before him.

Which takes me to my point. With all these qualities and more, why is Justice Hishamudin still a High Court judge? He was elevated to the High Court bench in 1995. He has an excellent track record. Judges elevated after him have made it to the Federal Court, a court in which Justice Hishmudin should be sitting.

Perhaps it is these very qualities, cherished by the Bar, that has kept Justice Hishamudin in the High Court.

So, is the judgment a testament to the independence of the Judiciary? I do not think so. It is a testament to how unacceptable the current way in which Judges are elevated and promoted is. It is a testament to the challenges faced by those judges who have had the fortitude to act in accordance with the law and their judicial conscience in hard cases, challenges that, if there truly was judicial independence, would be non-existent.

For those of you who have not signed the People’s Parliament Petition – Save The Judiciary – please do so. The Judges need us as much as we need them. E-mail your name and IC number to (to view the petition, go here).


Friday, October 19, 2007

Forgive Me

Forgive me, God
I looked into the Quran today,
I really looked.

Found nothing to support racism, corruption
Or the breaching of sacred trust
I read verses, I read between them
And no matter how much I tried,
I could not find anything about it being alright
to lie, cheat, steal and
to hurt, really hurt, people.
Injustice, it seems,
is not mandatory
is not permissible

I looked in the Quran today,
I really looked
And I did not find Malaysia

But then, who am I
To dare read and presume understanding,
Who am I to have the audacity to believe.
Who am I to think, to appreciate
what God expects of me,
all by my sorry self
when I was obviously given only
half a mind, and half an intellect
Safely esconced with the ulama,
the other halves lie there,
waiting for eternity
My passport to Heaven

Forgive me, God
For reading
Forgive me, God
For believing enough
to want to believe
Forgive me, God
For thinking that the Quran
was for me

I looked into the Quran today,
I really looked because I thought
that was what You wanted of me

I am sorry


Sunday, October 14, 2007

Eid Mubarak

A belated Eid Mubarak to all of you. And my thanks to all of you who made the effort to send me Hari Raya greetings.

I spent the first day of Eid with my family in Penang. At dinner last night, I watched 2 nephews, a niece and a cousin horse around on a sofa (and no, there was no partridge in a pear tree). What struck me was between the 4 of them, there was a blend of chinese, malay (and I am not even beginning to attempt to work out the ancestry of the Malay side of the family), punjabi and tamil blood-lines.

All Malaysians, all Muslims.

As with every Eid, the forced time-out is a period for some reflection. And there was a lot to think about this year.

I was in Singapore last week-end with about 200 highly intelligent, articulate, empowered individuals, all under the age of 40. We were there for the Asia21 Summit, an annual event organised by the Asia Society for young leaders from Asia and the US to share experience, develop ideas and gain strength from each other. The range was very diverse, with journalists, investment bankers, civil society activists, entrepreneurs, each one doing something significant with their lives and touching the lives of others. The most striking feature of the individuals there, I think, was their eager anticipation of the future and their belief that they could do something important to effect a change, big or small. They all looked like (and as I got to know them, I also got to know that) there was so much promise in all that lay ahead for them. As uncertain as it was.

I had trouble trying to understand how this made me feel, mainly because I was not sure what I was feeling. As the event unfolded, I began to realise that I was feeling a mix of distress and envy. You see, I realised that if things went the way they did in this country, it was no point hoping for anything. Because, whatever we did or said or hoped for, things were not going to change unless ...


Some say, that things are fine the way they are? Are they? The well to do: they do not send their kids to public shools if they can help it. Let's not pretend. The parents who can afford it send their children to private schools. We pay tolls for the highways we use. And if we can afford it, we go to private hospitals simply because we do not feel confident about the standard of medical care available. And judging by the stories we read in the papers, can anyone blame us?

So, what do we pay taxes for? Roads, we pay. School, we pay. Health care, we pay. Privatisation seems to be the most important word of the times, Islamization aside.

So, what do we pay for? I am not too sure. But I know what it is we are we are not supposed to be paying for. Corruption, endemic, core rotting corruption.

Yeah, right.

We pay for corruption. Through our noses. Inflated costs, transfer pricing. We pay for the robbery that happens around us.

Are we sure where our dollar goes? Are we sure that we aren't paying for something that we should not be paying for? Are we sure that the State is paying for what it should be for something it really needs? I am not sure anymore. Look at the Auditor General's Report. Listen to our Ministers; the self-jusitfying, self-perpetuating rubbish that they seem to believe that we believe.

Who needs the cartoons, the funny comics. The Malaysian cabinet is as much a joke as Malaysians need.

Accountability is a swear word in this country.

And does anyone in charge care? I mean, really care? I challenge: name me one person in the cabinet who is a statesman. Someone who is actually looking at the long term rather than the short term. Someone who is larger than the politics that keeps him/her afloat? Name just one, for I am at a loss.

Eid? Hari Raya? It's not there to thank the fact that we survived Ramadhan. It's there to remind us of who we are, who we should be, and who we shouldn't.

I sing Negaraku. I am a Malaysian. This country is mine as much as it is anyone else's. Were it otherwise, I would be singing Negaramu.

Eid Mubarak all, but only if you think that something needs to be done about where we are headed. And if you are, then start doing something about it.


Thursday, October 4, 2007


"If we look at this conflict as a straightforward eyeball to eyeball confrontation between Empire and those of us who are resisting it, it might seem that we are losing.

But there is another way of looking at it. We, all of us gathered here, have, each in our own way, laid siege to Empire.

We may not have stopped it in its tracks - yet -but we have stripped it down. We have made it drop its mask. We have forced it into the open. It now stands before us on the world's stage in all its brutish, iniquitous nakedness. Empire may well go to war, but it's out in the open now - too ugly to behold its own reflection. Too ugly to rally its own people."

Arundhati Roy, 'Confronting Empire'

Wednesday, October 3, 2007

Crisis Of Justice Demands Urgency

Perhaps YB Nazri was correct when he observed that there was no judicial crisis. What we are is a crisis of justice that embraces the whole nation. As explained in my post on why the Royal Commission is crucial, if the video is authentic, the implications and ramifications are mind boggling.

A crisis of this nature requires an urgent response. What we have seen however is the complete opposite. There has been no move on the part of the Government to seek that the Chief Justice take a leave of absence. The Investigative Panel is gradually cranking itself up to speed to an end no longer uncertain. In my earlier post, I suggested that there was ambiguity about what determining the authenticity of the tape meant. That has since been cleared up. The chairperson of the Investigating Panel, Tan Sri Haidar is quoted in The Sun today (see 'Probe panel meets tomorrow on damning video-clip') as declaring:

"The meeting will examine how to go about verifying the authenticity of the video (from a technical perspective). Our task is purely confined to that."

What happens after that? Another cabinet meeting, another panel, more time? And what happens in the meanwhile, we pretend that everything is alright? And what if the investigations finally reveal that the concerns of civil society were founded and that justice had been skewed to improper end? Does the Government then expect all of those who are before the Courts now, or who have been before the courts in the period of time in issue, to just shrug and say "let by-gones be by-gones"? There is already talk of litigants going back to court to set aside judgments on the basis of apparent impropriety.

The lack of urgency on the part of the Government is a strong indication of a lack of appreciation of the seriousness of the matters at hand. A more sinister interpretation of this attitude suggests that the Government may not be keen on getting to the truth, or to the truth too quickly. Does the Government not see that a tainted judiciary and the possibility of the uncertainty in the administration of justice is potentially destructive to its own interests, to the extent that those interests are separate and independent from the interests of the rakyat, as much as it to those of the rakyat?

And as for YB Nazri, what can be said has been said eloquently by KJ John in his latest comment for Malaysiakini ('Here's the crisis, Prime Minister!'):

"It is said that, in the country of the blind, the one-eyed is king. How true, but before our so-called law minister believes this to be so, let him be forewarned that more than 2,000 lawyers have already marched to say that they can see with both eyes and that they are not color-blind when it comes of issues of justice."

The Government should start taking this seriously. Lawyers talk of flood-gates. There is a tsunami on the way.


UPDATE: The Investigative Panel has since confirmed that it does not have any power and will be dependent on individuals voluntarily appearing before the Panel to provide evidence. Datuk Shankar is quoted as saying:

"The panel has got no legal power at all. The only authority that it has been given is these terms of reference and then to compile a report and send it to the appointing body. We have no power to administer oaths, to compel witnesses to come to us [...] We have no immunity under the law either."

This echoes a reiteration of the limited mandate of the Panel by Tan Sri Haidar who is quoted as confirming that the mandate is :

"confined to the authenticity of the video clip because we are not going into the merits of whether (there is any) truth of the content. Our terms of reference is to verify the video clip, stop there. After that is up to the government to decide."

(see Malaysiakini 'Haidar: We have no power' and 'Q&A: Don't throw stones at us')

Sacred Bureaucracy?

Egyptian blogger Nora Younis writes of how she was required to specify not only her religion but that of her lawyer at the Real Estate Registration Office in the city in which she lives:

"Yesterday morning I went to the Real Estate Registration Office to sign a notary form, appointing my lawyer. There, I was surprised to discover that I was required to prove my religion and the religion of the lawyer I wanted to appoint. And because I wasn't planning to get married to the lawyer yet, it never crossed my mine to ask him about his religion before this. All that I wanted was a competent lawyer for a specific cast and I don't think it will effect me or the Egyptian state whether he was Jewish or Shinto or even an adherent of the sacred carrot!" (read more here at

Makes me think of where we are headed with the way things are going here with the so called Islamization of this country. And before anyone says it, the fact that it is happening elsewhere does not make it any better. Bureaucratic process is not sacred just because it is is put in place in the name of Islam. For those who think otherwise, I would be glad to hear from you - in a constructive manner. If bureaucracy was sacred and divine, as some can be understood to suggest, explain how a Malaysian syariah court judge and a religious department officer have been charged for corruption (see here). Or is the Anti-Corruption Agency blaspheming too?


Monday, October 1, 2007

Free-Burma Campaign

Urgent. Received this message from the Free-Burma campaign. Go to for details.


Free Burma!
International Bloggers' Day for Burma on the 4th of October

International bloggers are preparing an action to support the peaceful revolution in Burma. We want to set a sign for freedom and show our sympathy for these people who are fighting their cruel regime without weapons. These Bloggers are planning to refrain from posting to their blogs on October 4 and just put up one Banner then, underlined with the words „Free Burma!“.