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Tuesday, December 30, 2008

A Nation In Progress

A Nation In Progress

The year draws to an end.

A kaleidoscope, 2008 defies description. In the swirl of colours and sounds, chords were struck and themes developed. I imagine an orchestra tuning up, falling silent and then suddenly and majestically playing a symphony of divine beauty.

Each of us an instrument, our voices lent themselves this year to the harmonies that described and cumulatively defined us as a society and a nation. In the silence behind each echo, we felt whom it is that we could be if we wanted to: one nation, one people.

2008 was the year that transformed us. We found our voices.

We may have voted for one candidate or the other, or even for one party in preference to another. We may have regretted our choices or felt vindicated in the time since or even suffered bitter disappointment for expectations not having been fulfilled. Whatever the case, this year we reclaimed democracy and the right to choose.

It does not matter that since March this year we have seen more political bickering than we would have liked to on either side of the divide, and within the ranks on either side. Any vision that emerges from a true democracy is necessarily the product of the synthesis of varied perspectives and opinions. There never is just one side to things and the heated exchanges about key aspects of our lives is something that we should welcome rather than fear. It is only the truths that flow from this crucible that are sufficiently strong to forge the foundations of a lasting civilisation.

Equally, it does not matter that the governments of the federation or the states made decisions that we would have preferred them not to. It does not matter that this politician or that one acted in a manner that we would have preferred him or her not to have. The reality is that for the first time in a very long time we have had these governments and those who form them behave with some regard to what it is we want; such is the power of the ballot box.

Enhanced opposition presence in parliament, the establishment of Pakatan Rakyat governments in five states and a courageous civil society have also allowed us to see all concerned as they really are, warts and all. We have come face to face with the fact that politicians are not very pretty to look at just as they have had to confront the fact that their fates do really lie in our hands.

And as each of us has come to feel more involved, our sense of belonging has heightened and with it our feeling of ownership. It is your Malaysia as much as it is my Malaysia and together, it is our Malaysia. With that awareness has come the understanding that each of us is responsible for what it is that we become. This has been accompanied by a nascent evolution of attitudes and orientation.

This is the breadth and depth of what it is we achieved this year. It has not been about reformasi but rather, transformasi.

The process is however just beginning and we must continue to be vigilant. As we offer thanks for what is that was bestowed upon us this year, let us not forget that there are those who do not want change. Race politics, with its attendant religious elements, and corruption also continue to threaten us. The latter has gravely undermined us through its insidious colonizing of the wider system and the political process. Its mark is evident in every aspect of our public system, so much so that we are now held to ransom by it.

As for race politics, despite it being self-evidently divisive it sadly continues to play out in the continued politicization of race and religion at great cost. Its destructive quality is seen most clearly in the distorting of legitimate efforts to find more effective methods of affirmative action as attempts to undermine the special status of the Malays under the Constitution.

As we move forward, we must commit to taking it upon ourselves to ridding ourselves of these difficulties. It is not sufficient for us to pay lip service to ideals; we must focus and act decisively. We must develop a more rounded understanding of the sensitivities and fears involved as it only through this that we will be able to develop the necessary language to build bridges with.

The light of the new year illuminates the recently cleared footpath that may ultimately lead us to where it is we should be getting. Though the way is treacherous, our belief that we can be all that we want to be will guide us if we let it.

I believe we want it to.

(Malay Mail; 30th December 2008)


Happy New Year to all.

On Gaza

Like many others, I am outraged at the acts of aggression being committed by Israel in the name of national security. Nothing justifies violence of the nature we are reading about, the killing of innocent non-combatants cannot be justified as collateral damage.

I am not in any position to write on Gaza in a way that would do justice to the very nuanced subject. Emotions do not always guide us in the right direction. I have however been following John Hilley's commentary on the subject. Perhaps you would like to as well (start here and go to related posts).


Tuesday, December 23, 2008

Through The Looking Glass

Through The Looking Glass

Living in Malaysia, one gets used to the farcical and ludicrous. Daily encounters in the media with those who claim to lead us have made many of us resign ourselves to the fact that life here in Bolehland (to borrow the delightful moniker from Martin Jalleh) is very much an acid-trip down a rabbit hole. So much so that one cannot help but wonder whether Lewis Carroll would have been bestowed a title had he wandered onto our shores; “Tan Sri” perhaps, considering how keenly he was able to visualize the Malaysia that would be.

This year, the award for most so would have to go to the Royal Malaysian Police. It outgunned all other candidates with its “Save The Children” themed efforts this past month. That and the “we detained her under the ISA to protect her” gambit in September, formulated with some assistance from the Home Minister, sealed it for me.

One has to acknowledge the sheer gumption of those who made the decisions to go with those justifications despite the obvious disparagement they would result in. Or could it be that we have misunderstood what was really a display of compassion, laughter being the best medicine for the many aches and pains we suffer from. Whatever the case, hats off to the men in blue for having out-farced all others, not an easy task looking at the range of candidates in this year of “Zero Opposition”.

Lest it be said that I am being cruel and cynical, allow me to say that I am not. I am in truth at a total loss as to how to comprehend why the force continues to position itself in the way it does when there is no need to. How the scenarios that have presented themselves this year - from journalistic expression to candle-light vigils of solidarity to road-shows aimed at promoting a fair, just and compassionate society, to name a few – could be perceived as being threatening of public order is mystifying.

I wrote an open letter in this column some time ago. In it I expressed the view that the force is not intended to police thought, the point being made in light of the way public assemblies were being regulated. It seemed to me then that senior police officers were taking the view that assemblies were not threats to public order if they were supportive of governmental positions. They however were seemingly such if they expressed viewpoints that could be perceived as being critical of the government.

Events since the letter was published, in particular the posturing over the blatant intimidation of those involved in the commendable JERIT campaign for transformation, have gone far to convince me that my surmise was in fact true. There is no other way to explain the inconsistency on the part of the force.

Which brings me to my point; the force needs to remind itself that we are allowed to think in Malaysia. The Constitution guarantees this, just as it allows us to express our thoughts and does not in any way limit us to saying things that are supportive of the government of the day. In fact, Malaysians can say what they want; if they however breach a law in saying what they do, they can be punished. That is why there is no law that prohibits speech; those laws only criminalize certain types of statements. There is as such clearly no basis for preempting expression.

This however begs the question of why the force is taking it upon itself to police thought in the way it does. Allowing access only to viewpoints that are supportive of leadership, and the half-truths this allows for, is propaganda. Is the system so far gone that the force has become a moving part in the propaganda machine of the State?

I would like to think not. The Royal Malaysian Police plays an invaluable role in the protection and promotion of democracy, in part through the fair and impartial enforcing of public order and security where this is necessary. For it to be able to fulfill its role, public confidence in the institution is essential. Sadly, justifications like those that we have been offered for unjustifiable and repressive action does not assist in this cause.

The truth is that police officers have more important things to concern themselves with than advancing petty political interests. Their jobs are difficult as it is and chasing activists, whether on bicycles or not, seems to be an unnecessary diversion of resources that are already stretched as taut as a drum skin.

Public assemblies really need little or no regulation. Malaysians have shown themselves to be capable of gathering and expressing their views peacefully and without rioting. The ceramah-ceramah that took place in the run up to March 8th and the various peaceful assemblies that have taken place since then, whether supportive of the government or pro-transformation, prove this.

And if the concern is not so much about those participating in the assemblies but rather instigators or agitators that might turn a situation ugly, then the force should be looking out for those disrupters of democracy rather than clamping down on democracy itself.

That is after all how it is supposed to be on this side of the looking glass.

(Malay Mail; 23rd December 2008)


Tuesday, December 16, 2008

The Gridlock

The Gridlock

Last Thursday evening, there was a horrendous gridlock in the city. The public holiday in Selangor and the rain had resulted in the usual mass of snarling and resentful drivers. There were no police officers to be seen in the Jalan Raja Chulan area and drivers were taking full advantage of this. They beat lights, cut lanes and forced their way forward to gain that extra inch that would take them closer to some perceived nirvana at the expense of the marginally smoother traffic an uncluttered yellow-boxed area of road would allow for.

Stuck in the mess, on the way to an appointment in the city, I had ample time to observe what was going on and to wonder why it is that those of who were on the road were seemingly incapable of spontaneously organizing ourselves in a way that would allow us to steer our way through the morass, albeit slowly. Wedged at a junction, it struck me that all it would have taken was for drivers on either side of the road to allow two cars to pass through either way at a time. But then it was not to be as someone had attempted to make a u-turn where traffic had made it impossible to do so, and stuck mid-maneuver he had now blocked the passageway.

We inched forward that evening, literally, and I ultimately left my car to walk to my destination. As I did, I noticed cars jumping lanes and rushing headlong on the wrong-side of the road. At one stage, I heard a collision and soon came across angry men shouting at each other. Confronted by a lorry being driven on the correct side of the road, one of these jumpers had tried to cut in and collided with a car. The man whose car he had run into was screaming at him for not having waited in line. Remorseless, the jumper was screaming right back, accusing the other of not having had the consideration to allow him in when confronted by the lorry. All round, drivers were blaring their horns.

Walking on, I mused over why it was that those who jumped lane had done so. It was something I, and it would seem quite a few others judging by the number of drivers who had remained in their lane, would not have done. Speaking for myself, it was not that I feared being caught breaking road-traffic regulations, there were no policemen present after all, but rather that I respected the order that the law, its purpose and inherent respect for others represented. Judging by the events that were occurring before my eyes, there was clearly a very practical dimension to the regulation against driving on the wrong side of the road. Why then did the jumpers feel differently?

On-foot and free amidst the chaos, I suddenly had an insight: there are a great many of us who have lost respect for order simply because we think that there is always a way to get around the consequences of our actions. There are many in the situation of the jumpers who will attempt to bribe a policeman when caught, encouraged by the perception that the policeman concerned will in all probability receive a reasonable bribe of a relatively small amount. Armed with this awareness, the way is open for almost anything and everything.

This is not just about traffic offences; the scenario plays itself out in other situations as well. Corruption is so endemic that it has for all purposes and intents become a way of life, skewing our value systems as it has done so. Considering all that happens around us on a day-to-day basis, I shudder to think what it is that our core values as a society are.

We are also not impervious to the examples set out by those who profess to lead us and it would be self-deluding to think otherwise. When they conduct themselves in a manner that suggests that they are above the law, be it through intimidation or abuses of power, then the average Malaysian will follow suit. For if the system can be made to support that kind of conduct on the part of the former then there is no reason why it should not be the same for the latter.

The harsh reality is that as a consequence our moral compasses no longer point true.

The gridlock in the city last Thursday evening could be, for all purposes and intents, a metaphor for the state of Malaysia. We no longer run in sequence, we see no value in doing so. We instead run our own courses in any way we think best for our own personal interests without any regard to wider Malaysia. Insular, self-interested action has become the order of the day with devastating consequences.

For those who would believe that in taking advantage of the situation,they are doing no more than adapting, the implications of their actions should be kept in mind. These will have deeply entrenched consequences, as we are already seeing. We are a nation that is slowly and surely descending into the lawlessness that contempt for the law entails.

The future that portends is not just about traffic jams and road rage.

(Malay Mail; 16th December 2008)


Sunday, December 14, 2008

Defining Ideals: The JAC Bill

The tabling of the Judicial Appointments Commission Bill 2008 in Parliament is a momentous event for what it implies.

For far too long, civil society’s concerns about the state of the Judiciary had gone unaddressed by the Government. It seemed that that the acknowledgments this would require, and their implications, were too problematic for the Barisan Nasional to generate the political will this would require.

Consequently, rather than deal with the situation Malaysians were emphatically told instead that all was fine. In this, warnings from various quarters and mounting indications that the institution was in a tailspin went unheeded. The nature and extent of injury this has caused to the institution and our system of law is something that we may never fully recover from without radical steps.

The value of the Bill is chiefly in what it allows Malaysians to do: to move forward and to start looking at solutions.

Though the rhetoric from the Government since March 8th has been welcome, there had been neither tangible acknowledgment of the need for reform nor any concrete indications that steps were going to be taken. The tabling of the Bill has however changed that and we are now on far firmer ground to do what needs to be done. In the same vein, it is also noteworthy that in promoting the establishment of an appointments commission, the Government has also conceded that the way in which judges had been appointed in the past had compromised the independence of the Judiciary.

The utility of the Bill must however be measured against its declared objectives. That the genesis of the Bill lies in the unfortunate events underlying the Lingam Video Enquiry cannot be ignored. These centered largely on the perceived absolute discretion of the Prime Minister to unilaterally determine the appointment and promotion of judges. I say perceived because there had been a time when the constitutional provision concerned had been understood to mean that the Prime Minister would defer to the choices of the leaders of the Judiciary whose advice would have been shaped through consultation with the leaders of the Bar. In this way, care had been taken to ensure that one person did not shape the Judiciary, even if that person was the Prime Minister. As the evidence that came to light during the Lingam Video Enquiry however showed, this had become the case over time.

In this context, for the proposed law to be effective it must substantially minimize, if not wholly extinguish, the risk of this reoccurring. In doing so, one would reasonably expect the Prime Minister’s role to be circumscribed in such a way so as to impede autocratic decision making on his part.

Regrettably, the Bill does not achieve this and instead goes a long way to preserve the absolute discretion of the Prime Minister. It does this in several ways. Firstly, it is not clearly stated that the Prime Minister can only recommend for appointment those persons whose names have been put forward by the proposed JAC. This suggests that the Prime Minister is not bound to do so and can make his own recommendations.

Secondly, the composition of the proposed JAC is worrying for not only involving the leaders of the Judiciary who, as experience has shown us, are not entirely immune from being beholden to their appointing authority, but also a Federal Court justice who might suffer from the same sense of obligation as his or her peers. Four other individuals who are appointed and can be removed at the sole discretion of the Prime Minister complete the JAC. It is evident that this scheme will not inspire much confidence, given our history.

There are other aspects that are equally indicative of a concentration of power in the Prime Minister over the make-up and functions of the proposed JAC. This is worrying for they collectively undermine the stated aim of the exercise for promoting rather than minimizing the role of the Prime Minister. The scheme of the Bill is not easily reconciled with the independence that the proposed JAC would require in order to function effectively.

There are some laudable aspects of the Bill. These include the creation of a duty on the Prime Minister to promote and protect the independence of the Judiciary as well as the characterization of potential conflicts of interests on the part of members of the proposed JAC. These are however of no real value if the core of the Bill is not crystallized correctly.

As other more notable personalities have expressed, all indications point to a need for more comprehensive study and extensive debate. In attempting to give meaning to the independence of the Judiciary, a cornerstone of our system, we are defining an ideal. This is a process that allows for no compromises.

(This comment was written for The Malaysian Insider where it was published under the caption "In current form, JAC falls short of inspiring confidence")


Thursday, December 11, 2008

Shaping Policy

I have said elsewhere that decisions of the Federal Court do not only determine the issues in the particular case the court decides on. Being the apex court and empowered to only hear appeals that involve questions of novelty or public importance, decisions of the court in many ways define the policy of the law. These decisions set precedents and are binding on all other courts.

In an ideal context – in which decisions are made impartially, correctly and with regard to all relevant considerations – this is a good thing. Decisions of the apex court would guide the administration of the law so as to ensure uniformity of decision making by the High Court and the Court of Appeal. This would allow for certainty in the law, a vital feature of a functioning system of law.

It follows then that in less than ideal situations, where decisions are made incorrectly or by reference to considerations that are not relevant to the issues being adjudicated, decisions of the apex court become problematic for setting bad precedents. As a lawyer, I have seen how judges struggle with getting around these bad decisions in attempting to do justice.

These less than ideal decisions are particularly problematic where they involve matters of governance, either at the level of government or lower down the chain of administration. Decisions of the apex court here would not only define the policy of the law, they would also shape administrative policy. In most cases involving the government or other administrative bodies, it is more usual that these entities would have been sued for alleged wrongdoing. By upholding or dismissing claims, the apex court would be setting down parameters and sending signals, one way or the other, to these entities.

Put another way, bad or shortsighted decision-making could, and most probably would, result in bad administrative policy.

It is my respectful view that the decision of the Federal Court in the Highland Towers case (MPAJ v Steven Phoa [2006]) is a problematic decision for having immunized the State Government and local authorities from liability. It must be recalled that in its said decision, the Federal Court found that the MPAJ was not liable for its negligent acts or omissions for being protected under the Street, Drainage and Building Act (s.95(2)). In so concluding, the Federal Court had effectively told the MPAJ, and other administrative bodies protected under that provision or provisions similar to it, that they could act with impunity. One can only imagine how this has shaped attitudes of local councils throughout the nation.

There are two ways that the decision could be considered. The first is supportive of the decision for the court having applied the law as written. After all, the section does provide “…shall not be subject to any action, claim, liability or demand whatsoever…” and courts cannot rewrite the law.

The second is not supportive. Though the Court is obliged to apply the law, it is nonetheless obliged to apply it purposively with due regard to the intention of legislature. It cannot have been the intention of legislature to immunize all actions or inactions. The provision was obviously aimed at protecting the parties identified for acting (or not acting) within the scope of what could be reasonably expected of such parties, seen in the phrase “ accordance with the Act..”. There are situations, such as where the parties have acted in bad faith or in a manner not countenanced by the law, that legislature could not reasonably have intended to give immunity for.

I favour the second view not because my sense of social justice is appeased by it but because that view is more consistent with the guarantee of access to justice and equality before the law under the Constitution. These are features of the core of the Rule of Law; no person is above the law. This approach is also consistent with jurisprudence across the common law world on the subject. Significantly, the Court of Appeal in the Highland Towers case took the view that the MPAJ was not immunized from liability.

There are very real and practical implications of the decision of the Federal Court. Consider its impact on the state of affairs in Bukit Antarabanga. Going by the said decision, individuals who have lost everything have no recourse even if it could be shown that the local council acted with complete disregard to their interests. That cannot be right.

The decision in Highland Towers appeared to have triggered the start of a trend of protectionist decision making on the part of the court. In October this year, the apex court held in Government of Malaysia & 3 Others v Lay Kee Tee & 183 Others that such provisions rendered parties concerned immune from suit as a consequence of which such claims could be struck out without going to trial. The claimants there were denied their day in court unlike the claimants in Highland Towers.

The court in Lay Kee Tee raised another barrier to claims against governments by laying down a pre-condition to actions against governments (State or Federal) as follows: if one wants to sue the government for wrongs done by an agent of the government, then one must not only identify the agent, one must also make the agent a party (or defendant) to the action failing which the claim is struck off without going to trial. The court came to this conclusion through an interpretation of the relevant legislative provisions (Government Proceedings Act) that runs counter to established practice through the years both in the country and elsewhere in the common law world.

One sues the government for what is called vicarious liability. The Government not being a person, it cannot act other than through its agents. In law, where an agent is negligent, his principal is vicariously liable. There has never been any need to sue the agent in order to make the principal liable. One had merely to establish the wrongdoing of the agent to make the Government liable.

All that changed with the decision in Lay Kee Tee, which drastically altered the ground rules. Consider a situation like that in a pending action against the police and the government for inaction on the part of the police during the Kampung Medan riots. The claimant there claims that police officers stood by while he was being attacked. He now has to identify the police officers he says did not take steps and make them parties. How he does that is anyone’s guess especially since the police force is not about the volunteer the identities of those involved (this is fair considering that the burden of proof is on the claimant). Suing the government has always been difficult; it has become virtually impossible.

These decisions and others that have been too accommodating of unfettered discretion on the part of the authorities are worrying as they signal an unduly narrow view of fundamental liberties. They also indicate a misapprehension on the part of the Judiciary as to its role. The institution is not intended to blindly apply the law; it must infuse the law with those elements that mark this nation as a democracy founded on the Rule of Law.

Citizens must be allowed to seek redress for wrongs done to them by the State or its agencies; their right to do so cannot be rendered illusory. As emphasized above, this is not just a matter of one person’s wrongs being addressed and compensation. The decisions handed down have shaped policy and attitudes, and will continued to do so. If public officers are allowed to feel that they are beyond the reach of the law as they have been, they will act as they please and not necessarily in the way they are expected.

The Federal Court must appreciate more fully that its decisions are not handed down in vacuum. They shape society, sometimes drastically.


Wednesday, December 10, 2008

Forcing Accountability

The reoccurrence of landslides in Ulu Klang, Ampang, capped by the tragedy of Bukit Antarabangsa, is a compelling reason for the reintroduction of local government elections.

Amidst all the finger-pointing, justifying and spin-doctoring, one thing remains clear: that something is very wrong with the way the overseeing of hillside developments in that area, perhaps even other areas, is being managed. If it were otherwise, we would have not been seeing the scenarios we have since 1993 when Block 1, Highland Towers toppled.

Let me expand on why I have assigned blame in the way I have. Let us assume for a moment that the landslides are exclusively caused by soil-conditions, as some might have us believe. If that is the case then one must assume that the area is unsafe for occupation. That begs the question of why is it that housing estates were permitted to be developed in the area and people allowed to take up occupation there.

If, on the other hand, it is not just about soil-conditions but about the way in which housing estates are to be developed, then that points to a human factor and raises the question in turn of what is it that was done wrongly. Was it the case that policies were inadequate to address the situation or that translation of those policies into action was lacking? Or was it that poor judgment calls were made or even insufficient consideration given to compelling factors?

One would have thought that the enquiry conducted after the Highland Towers incident would have shed sufficient light on the matter to put things into focus and the numerous landslides since help keep them in focus. Apparently not, judging by claims of some residents of Bukit Antarabangsa that their complaints had gone unheeded, echoing assertions made by those who had suffered before.

The situation is made more complex by ambiguity. It cannot be said that all that needs to be know is known, except perhaps by a small group of persons who may not feel the need to make the full and frank disclosure required for a firmer understanding of what happened and what needs to be done. This is not surprising as it mirrors the way in which much of the public system is administered.

Put another way, there is shocking lack of transparency and accountability in the public system. a state of affairs possibly encouraged by recent short-sighted decisions of the Federal Court virtually immunizing governments and local councils from liability. This opaqueness not only keeps us blind to what needs to be seen, perhaps those who chose to live in Bukit Antarabangsa would not have done so if they had been adequately warned of the risks, but also what we need to do.

Which takes me to my point. Accountability and transparency needs to be forced on the system and a surefire method of doing this is by making administrators accountable through elections.
If the Pakatan Rakyat needs a reason to crank up its efforts to deliver on the election promise it made to reintroduce local council elections, here it is.


Tuesday, December 9, 2008

Respecting Change

Respecting Change

A friend of mine told me recently that he was considering home-schooling his two sons. A battle with the private international school where his sons are enrolled and fruitless encounters with Ministry officials who were either incapable of seeing his point of view or could not empathise nor appreciate his lack of options had brought him to that point. It could be that to many a civil servant, private schooling is an elitist luxury that one purchases at the expense of its ills and pains. If so, this overlooks the reality that for many in this country private schooling is not about snob appeal but rather a necessity in an increasingly competitive world.

Many a parent is caught in a conflict between wanting to avail themselves of public services, be they education, medical or otherwise, on the one hand, and doing the right thing for those they love on the other. They, like many others here in Malaysia, have been forced into these positions of conflict by a public system that has been increasingly undermined by political and vested interests despite the obvious consequences.

It is evident that for a nation to progress sustainably into the future, the pillars of the nation must be protected and continuously strengthened. Of these, much has been said of the Judiciary and the Legislature. We should however not underrate the significance of the civil service. It is crucial for being the engine that impels the nation in the direction it should. Civil servants serving in a diverse range of capacities from teachers, administrators, lawyers, doctors, engineers, surveyors, geologists and so on provide invaluable input and service. They reach far into this nation’s heart, its people, and provide the nurturing and guidance that keeps it safe and beating.

Civil servants oversee every aspect of the system from schools to hospitals to hill developments. It is therefore crucial that those who take on the responsibility of administration be suitably qualified for their jobs. This is both a matter of competence and integrity. There is no excuse for not having the best possible persons for such positions, be they teachers or director generals of Ministries.

Even a cursory glance at modern Malaysia would show that this is sadly not the case. If it were otherwise, we would not be stuck in the rut that we are. The nation lacks sparkle, energy and drive. Hamster like, we run on the spot in our wheels of misfortune as the system, such as it is, wears itself down at the expense of the future we could have. Can we really say that we have the best people for the job in the various ministries, departments and agencies that we rely on to make sure this country runs at the optimum level in all respects? I think not.

It seems that the only employer that does not complain about poor levels of competence, at least publicly, is the government. This is understandable. The civil service has always been potentially useful as an employment bank, a direct means of furthering agendas, for control and, for all these reasons, winning votes. Somewhere along the way, that potential was harnessed, and welfare and privilege elements exploited to justify abuse.

The notion that employment in the civil service is an aspect of welfare or privilege is self-serving and dangerous. The civil service is so inextricably linked with our future, giving meaning to the adage “we reap what we sow”. This is not just about the alarming number of unemployable local graduates and school leavers, as worrying as that is, it is also about bad decision making with sometimes catastrophic results, tangible and intangible, and other equally significant aspects.

Things are definitely not as they should be in this nation. We are slipping far behind as we drown in a dizzying cocktail of lackadaisical attitudes, a total lack of imagination, mind-numbing incompetence and corruption. Mediocrity has become our standard. And though we rush to justify and distract from failings, be it for having allowed our tertiary institutions to slip into the “not worth bothering” section of the rankings or the increase in corruption, this is not addressing the problems.

Change became a catchword this year with even UMNO elites claiming it for their banner. If we are sincere about transforming Malaysia, the alarming state of the civil service must be addressed.

For this, ground-rules must be set and respected. Politicians must learn to respect the intent underlying civil service regulations that restrict political involvement: civil servants must be left alone to do what needs to be done. They do not serve political parties; they serve the government of the day. Additionally, key sectors of the civil service must be made impermeable to appointments based on race quotas and be defined only by appointments based on of high levels of competence and integrity.

Above all, politicians must learn to respect the civil service for the fundamental role it plays in nation building. Change is in its hands.

(Malay Mail; 9th December 2008)


Tuesday, December 2, 2008

What Is The Pakatan Doing?

(Update, 6:48 pm: Anwar Ibrahim has apparently denied that an offer was made to Arif Shah. See here)

I am travelling today for a symposium overseas and had much to do and deal with before I left. Time constraints prevented me from writing an opinion piece for Disquiet in print. My apologies.

If I had had the time, I would have written on what I think and how I feel about the Pakatan Rakyat, more particularly PKR, offering a Deputy Chief Minister’s position to Datuk Arif Shah Omar Shah (if reports are true).

I do not think this is the kind of example that the Pakatan wants to set and I am wondering how it is that those who lead the coalition could have even thought of making such an offer (if true). There has already been intense debate about whether cross-overs should be accepted as a point of principle, with the DAP having been very clear about its disagreement. Accepting a cross-over and offering him a plum position in the administration is something that far more extreme.

There are several ways this can be looked at. What does Arif Shah offer that so many of those who have struggled for so long in the pursuit of change-for-the-better cannot? His UMNO credentials? His network of UMNO supporters? The insult his defection would amount to?

Even if the defection of UMNO were to be the result of his defection, and I do not necessarily think that would be the case, is that worth the message it sends out about the Pakatan: that the Pakatan is a coalition that is prepared to pay whatever it takes to get where it wants to. Because if a deal has in fact been struck with Arif Shah, that is what the Pakatan is doing.

And it would seem that that is what the Pakatan has become.

What happened to the adherence to principle that underlay the Pakatan’s election campaign? Has the value of principle lessened since? Have we forgotten the kind of campaign that Arif Shah was associated with in Permatang Pauh, the obscenities, the racial slurs and incitement, the entire circus? Are we overlooking the fact that Arif Shah wants to leave UMNO for the way his has been treated (according to media reports) rather than for his rejection of UMNO’s ideology?

And above all, has Anwar Ibrahim forgotten what it is that motivated the rakyat on March 8th? It was not blind ambition, it was the pursuit of a better Malaysia.

How Arif Shah becoming a Deputy Chief Minister of Penang takes us closer to that objective is something beyond my comprehension. Even if it leads to the taking of Federal Government, I am certain that must have something to do with the offer, I question whether a Federal Government achieved on the back of personal interests is a government I want.


Tuesday, November 25, 2008

Striking A Pose

Striking A Pose (Of Crime And Punishment)

THE recent ruling by the National Fatwa Council on yoga has resulted in a range of responses, from dismay to unqualified and devoted acceptance. I must admit to bewilderment in part because of all the pressing issues that confront Muslims in this country, many of which directly pertain to matters of social justice, yoga was one of the least expected amongst those that demanded urgency. It would have been useful for the Council to have directed its mind and resources to matters of faith that complement efforts aimed at the nurturing of an inclusive, just and compassionate society.

That being said, a ruling has been made. I say ruling because until and unless the ruling is endorsed by the fatwa committees of the various states and the Federal Territories and then gazetted (published in the official government journal), the ruling is not a fatwa.

The administration of Islam is a matter that falls within the exclusive purview of the state under the Federal Constitution and, as such, where fatwas are concerned within the sole domain of the state fatwa committee. In this context the National Fatwa Council allows for policy consultation at a federal level to facilitate a more unified vision of the practice of Islam, each state being legally entitled to pursue its own vision.

Within the state, it is for the Majlis Agama to take steps to gazette a ruling of the state fatwa committee. The resultant fatwa is prescribed by the respective state law as being binding on all Muslims as a dictate of Islam. They are duty bound to abide by and uphold the fatwa unless permitted by Islamic law to depart from it in matters of personal observance, belief or opinion. The burden of establishing that an exemption is permissible is however on the individual as state Islamic criminal law provides that acting contrary to fatwa is a criminal offence.

It is significant that despite a fatwa being for all purposes and intents a ‘law’ the breach of which is punishable, there is no need for rulings to be referred to the State Legislative Assembly before they are gazetted and become binding as fatwa. Seen in this light, it could be said that the Majlis Agama and the fatwa committee are therefore legislating.

The pressing question arises as to how this can be sanctioned in view of our Constitution having put in place a system of law-making centred on legislatures constituted by duly elected representatives. The making of binding fatwa in the manner provided for is a glaring anomaly from the dictates of the democratic processes enshrined in the Federal Constitution.

It is this very concern that drove a team of us to taking up two challenges in the Federal Court involving persons allegedly having been involved in deviationist Islam not too long ago. Amongst other things, our clients had been charged with acting contrary to fatwa; charges that for the reasons explained above took us to heart of law making.

In its decision earlier this year, the Federal Court disagreed with us and upheld the validity of the fatwa making process. With respect, in so concluding, the Federal Court in effect allowed for a subverting of Parliament, and the accountability the institution is intended to promote, in this extremely crucial aspect of the constitutional framework by giving licence to the religious bureaucracy to autonomously fashion a parallel system of law outside the established legislative structure and the supervision it envisages. I clarify here that I do not intend to cast aspersions on the qualifications, character or aims of the members of the respective majlis-majlis and fatwa committees. The implications of the decision of the Federal Court are however not easily reconciled with the very purpose of legislative power being constitutionally entrenched in the legislature, and the value of this entrenching to wider society.

The rakyat elected representatives to the legislature to ensure that our respective views were presented and taken into consideration as well as to allow us to have oversight over the processes that ultimately shape our lives. Our representatives should be making law as well as overseeing its making.

Legislature cannot be permitted to delegate its essential legislative function in any field, even to a well-intentioned specialist committee. This is not just about Islam; it is equally about all the other fields that specialist committees might be created for in the same way.

The limited numbers of a committee cannot compare to the full weight of the august houses of Parliament. That some of those in parliament may be of questionable competence, some might say sanity, is of no relevance as it is the underlying principle that is in issue. Allowing for a divesting of legislative power and control is most certainly a state of affairs that will wholly undermine democracy and true nation building.

Consider it from a different perspective. Would a State Legislative Assembly have enacted the offence of practicing yoga? I have my doubts, not least for the heated debates that the tabling of a bill to create the offence would have resulted in. If this were the case, then how is it that the system allows for the criminalising of yoga by the ruling of a committee and the mere gazetting of that ruling?

On the other hand, if a state fatwa committee were to produce an expert opinion that was then made the basis of a bill tabled in legislature, would it not be conceivable that with logic and reason, the bill would be carried? More work might have to be done, as explanations would have to be made that much clearer and factual basis of concerns set out coherently. However, considering that laws are being made, these are necessary prerequisites in any event for such grave efforts.

In the meanwhile I wait with bated breath for the next fatwa. Who knows, it may be about corruption.

(Malay Mail; 25th November 2008)


Subsequent to this article being submitted for publication yesterday, the Perak State Religious Department has acknowledged that it is necessary for His Highness the Sultan of Perak and the state Fatwa Committee to consider the matter before the policy can be implemented in the state of Perak. The Sultan of Selangor has also indicated reservations (see here). The gazetting of a fatwa requires the assent of the Sultan.

Tuesday, November 18, 2008

Policing The Constitution

Policing The Constitution

(An Open Letter To The Inspector General of Police)

Dear IGP,

Let me firstly acknowledge that yours is not an easy responsibility to bear. The task of policing is certainly a difficult one. It calls for the fine balancing of the many different interests and expectations that will allow for security without undue compromise of the freedoms that mark this nation as a democracy. Far too often, the choices that have to be made are those that will be remembered more for their being unpopular than their having been effective.

As a lawyer, it strikes me that there is a way to make navigating these difficult waters easier, if only slightly. The power to police stems as it does from law enacted for that purpose. The Police Act and the Criminal Procedure Code are not only the maps by which you chart your course, they are also the justification you offer for actions that might be viewed as unfair. After all, the Royal Malaysian Police does not legislate; it merely enforces the will of the legislature as codified into the statute books.

This approach could also extend to areas where the law vests police officers with a discretion the exercise of which is a matter than can only be determined by reference to the particular circumstances of a given situation. Though in these cases the particular legal provision in issue may be silent as to how it is a police officer is to act, it should not be overlooked that the Constitution is the supreme law of the land. In enumerating the fundamental liberties of citizens, it has provided the context and limits of enforcement. Seen in this light, it become evident that the primary role of the police force is to ensure that the constitutional framework is maintained as it was at all times intended to be: one that guarantees the freedom for Malaysians to aspire to be all that they are without fear of reprisal.

It is from this perspective that I question the wisdom of your policy on the matter of public assemblies.

I acknowledge that the legislature has by virtue of the Police Act imposed the requirement of permits for gatherings in public places on pain of sanction. I note however that the police force has taken it upon itself to exclude certain types of gatherings from the requirements of the Police Act. This seizing of discretion, for it could be said that the statute allows for no such discretion, is understandable for were it to be otherwise we would see many a family arrested for picnicking in public parks. By any definition they would constitute the assembly of three or more persons in a public place the Police Act targets.

This however makes the point that it is not necessarily the case that all gatherings in public places without permits are unlawful assemblies; it is only those that the police force deems such that are. Experience shows that this has however been markedly selective.

Compare, for instance, the experience of protestors outside the Bar Council and UITM students demonstrating against the admission of non-Malays this August with the treatment of participants in the anti-ISA vigil held earlier this month. While the third event had dispersed, spontaneous peaceful gatherings of small groups of citizens were acted against with force and culminated in numerous arrests. Though the earlier two events were by any comparison that much more aggressive, no action was taken despite the protest outside the Bar Council having disrupted a closed-door event.

Circumstance suggests that your officers believe there to be basis for their action and for treating events differently from one another. Objective scrutiny point to that basis being an apparently misguided notion as to what it is that constitutes a threat to public order. It appears that the third event, and others like it, was perceived as being disruptive of public order not so much for the event itself but rather the anti-ISA message it sought to convey. It seems that this was considered to be dangerous for its seemingly anti-establishment sentiment, a conclusion reinforced by conditions imposed by the police for a similar event held last Sunday. These included prohibitions on the lighting of candles, the wearing of anti-ISA t-shirts and the making of any statements supportive of the release of detainees.

In contrast, the first two events did not convey any such sentiment.

If this is in fact the case, that policy needs to be reexamined. The approach it entails is grossly unfair. It also exposes the police force to attack and criticism in a manner that is unnecessarily undermining of respect for the institution at a time when more needs to be done to shore up public confidence

It is not for the Royal Malaysian Police to police thought and speech through preemptive enforcement; that is not its fight. Malaysians are guaranteed the freedom of thought in as much as they are guaranteed the right to express themselves, either alone or in peaceable assembly with others. The nature of views expressed is not a matter for the police force to concern itself with; ensuring that Malaysians are free to avail themselves of the guarantees afforded to them under the Constitution to live out democracy as it was intended is.

Malik Imtiaz Sarwar

(Malay Mail; 18th November 2008)


Tuesday, November 11, 2008

Keeping The Faith

Keeping The Faith

Over the weekend, the blogosphere was filled to the brim with posts and comments concerning Justice Syed Ahmad Helmy’s decision to release Raja Petra.

Many expressed surprise at the Judge having had the fortitude to rule as he did, going against the grain not being the easiest of options. Some were unfeelingly dismissive of the decision and its significance to Petra and his family, and to society as a whole. One of the theories advanced was that the decision to release Petra was engineered by Prime Minister Abdullah Badawi as part of a campaign of political maneuvering against Deputy Prime Minister Najib Razak. Others cynically suggested that it was typical of the lawyers involved, myself included, to have made self-servingly positive statements concerning the Judge and the decision as we had won the case.

These comments made me wonder. Have we really been so thoroughly wrung that all hope and optimism have been bled from us? Are we so broken that we are incapable of appreciating the tiny and not so tiny miracles that happen in our lives every day?

Last Friday, as the first sob of joy escaped captivity in a courtroom that had been stilled by uncertainty, as the first tears of redemption rolled down cheeks that had been numbed by countless disappointments, I was reminded again that it is our collective faith in what is right that has consistently forged the way forward. As the cheers erupted from the many Malaysian throats present, and the Judge attempted to restore order, I understood that as our ties together as a community have strengthened so too has that faith. I saw, as Alice Walker pointed out recently to Barack Obama, it is we who we have been waiting for.

It does not matter what those who scoff say, justice was done last Friday.

No matter what we call it or how we dress it up, detention without trial is cruel. Stripped of everything, a human being has only his or her dignity and conscience. It is to these most fundamental of elements that the right to fair trial and the presumption of innocence speak. It is these elements that preventive detention aims to destroy. They are torn apart in the same way that the lives of those detained and their families are.

The due process of law ensures that the number of people who get shut away erroneously is small. A person charged with a crime in this country has at least two tiers of appeal. His conviction would have been scrutinized at least three times by several judges. A person detained without trial is detained with the stroke of a pen wielded by a Minister who is presumed to be objective enough to do what he needs to do in a way that ensures there is no possibility of error.

Where is justice? If the reasoning of the Minister is to be accepted, it does not enter the picture.

The Minister contends that detentions are a matter left by the law entirely to his subjective discretion. This means, he reasons, if he decides that an individual is a threat to national security, a court has no option but to accept this as a truth. This being the case, there is no need for the Minister’s conclusion to be justified. Extrapolating this analysis, the Minister is not required to argue that the justice of the case favours continued detention without trial. Justice is as such not a feature of the analysis and injustice an irrelevant consideration.

The Judge obviously felt otherwise. His observation, made in the course of his reasoning, that the law could not be understood as empowering the Minister to arbitrarily detain individuals for reasons that had nothing to do with the statute such as, for instance, simply having red hair, was illuminating.

Was his reasoning correct? I would like to think so. The Judge merely applied the law as framed by the legislature and in doing so gave expression to the intention of the drafters of the law: limiting preventive detention to the kind of exceptional “terror” situations described. The Federal Court may however take a different view, just as it may of the points of submission we made that the Judge disagreed with. We will get to argue these again if an appeal is lodged.

Was I happy that the Judge decided the way he did? I would have been foolish not to be, not least for Petra being reunited with his family. Do I think positively of this Judge? Most certainly for having shown me that it is not audacious for any of us to hope as we do. Would I have been disappointed if we lost? I would have but far less than if the Judge had not given us the excellent hearing he did. As we left court on the day we presented arguments, all of us understood that we had had the hearing that all of us wanted: a fair one.

And to those who suggest that the Judge was influenced, I say this. You do a disservice to yourself and to this nation. Had you been in court, you would have seen as we did a Judge keeping the faith.

(Malik Imtiaz Sarwar was counsel to Raja Petra Kamarudin. He is the current President of the National Human Rights Society and blogs at


Friday, November 7, 2008

Free RPK: Habeas Granted

We won.

Decision handed down today by Syed Helmy J. Habeas corpus granted, RPK to be released forthwith. He is to be produced before the Shah Alam High Court by 4 pm today to allow the Court to direct the release.

Credit to the Judge, who was fair and judicious in his approach (he disagreed with our argument that section 8 is unconstitutional), the team of lawyers who put their heart and soul into the hearing and our opponents, Tuan Wahab and Tuan Dusuki, who were professional in their outlook and approach.


Tuesday, November 4, 2008

Finding Equilibrium

Finding Equilibrium

Zaid Ibrahim’s impassioned call for a rejection of race politics last Friday at the LawAsia conference is one that deserves its place in history. His plea for the restoration of democracy and the Rule of Law has reverberated throughout the nation.

This is not surprising. Zaid’s message is rooted in an obviously deep and heartfelt commitment to the nation and the interests of all its citizens. Where the Malays are concerned, he is strident in his rejection of policies that have left the community struggling against a siege mentality that robs it of its ability to meet the challenges of a globalizing world. As he observes, the “Malays are now a clear majority in numbers. The fear of their being out numbered is baseless; they are not under siege. The institutions of government are such that the Malays are effectively represented, and the there is no way the interest of the Malays can be taken away other than through their own weakness and folly.”

Equally forceful in his defence of non-Malay interest, Zaid laments attempts by politicians to do away with a social contract that guarantees “equality and the promise of the Rule of Law” in favour of one that promotes a supremacist ideology that ultimately serves only the interests of an elite. This, he opines, has left the nation deeply divided and cut off from the democracy and Rule of Law so vital for the sustainable and inclusive development that all Malaysians need, irrespective of race and religion.

Put another way, Zaid has given voice to what it is most Malaysians think: that we need to be united to face the future. The founders of this nation understood we could, appreciating that there was no reason for fear and that we had every reason for mutual respect and dignity. Fear mongering has however kept us apart and from seeing the threats that confront us, and what we need to do to counter them.

Zaid’s message is persuasive for its simplicity and self-evident truth. He must be credited for having been able to say what had to be said, as it needed to be said.

If there is any doubt as to the legitimacy of the viewpoint expressed, then we need only consider the reactions from senior UMNO members entrenched in the leadership structure of the party. These reactions not only make it evident that Zaid hit the nail on the head, they also show why it is UMNO and the Barisan Nasional need to seriously reconsider how to make themselves relevant. Two responses are illustrative.

Perlis UMNO liaison chief and former Menteri Besar Datuk Seri Shahidan Kassim had this to say, according to media reports, “Zaid should repent. Otherwise he should get out of the ‘rumpun Melayu’. Paraphrased by BERNAMA, his explanation for this was that “if Zaid continued to question the Malay supremacy concept, then he should no longer be a Malay as a Malay should be defending the Malays and not running them down.”

But, is that not what Zaid was doing? Apparently not, for the New Straits Times reported Home Minister, Datuk Seri Syed Hamid Albar, who is incidentally an UMNO supreme council member, as saying that Zaid was “a traitor to his own race and should apologise for his remarks.”

Both responses are so self-defeating that they boggle the mind. They typify the might is right attitude that Zaid speaks out against. Being senior UMNO members, both individuals must be open to the possibilities. As Zaid put it, if “affirmative action is truly benchmarked on the equitable sharing of wealth that is sustainable, then we must confront the truth and change our political paradigm; 40 years of discrimination and subsidy have not brought us closer.”

Zaid was not alone in expressing concerns about the way things are. At the same conference, His Royal Highness Raja Nazrin Shah, the Raja Muda of Perak, called for a rejection of discriminatory policies. The Raja Muda observed that the “consequence of not empowering citizens or, worse, disempowering them, is to create a deep sense of alienation and hostility. Indeed, it is very often an overwhelming sense of alienation and powerlessness that causes the rash acts of violence that fracture societies. It gives these citizens every reason to seek to divide society in order to redress their dissatisfactions. This is bad and insensitive politics. On another level, we cannot morally turn our backs on the fundamental responsibility of ensuring that all stakeholders in our society, no matter how small or seemingly insignificant, have a place under the sun.”

The ideal could not be better articulated. Malaysians, all of us, want our place in the sun. We do not wish to live in fear, looking over our shoulders all the time. There is more than enough for us all to share in. We have been blessed with a nation so abundant with resources and so rich with potential that generation upon generation will be able to live in peace and prosperity. The only catch, if it can be called that, is that we need to be left alone to find our equilibrium. Only then can we get on with the task of doing it right.

(Malay Mail; 4th November 2008)


Tuesday, October 28, 2008

Running Away

Running Away

A few days ago, I was talking to a friend. A meandering dialogue, it was really an excuse for us to reconnect as friends do. And as these exchanges tend to, we drifted into matters of family. She spoke about her children, her brother, the usual assortment of fears and hopes, funny moments, painful ones. I reciprocated.

At some point I began to talk about my father. And as I progressed into my narrative, she suddenly remarked that it was as if I was describing someone very different from the person I had talked about a year and a half ago. I thought about it and understood that she was right. The person I had just been describing was a warm, humorous and slightly dotty academic who, in the recounting of his madcap adventures across the globe in search of his truths, came across as a less sexy version of Sean Connery in his role as Indiana Jones’ father. The father I had described the year before was a quiet, reserved man so removed from his context and so driven in his academic research that he was virtually impossible to relate to. So much so that I had at times wondered what it was that he was running away from.

It struck me then that my father had not changed. I wondered whether I had been romanticizing my account of my father. Writers tend to exaggeration in the name of art, they call it artistic licence, and I was really a closet writer who had stumbled into the practice of law. But then I reconsidered, if that were the case why had I not done that before and, if the truth were to be told, our relationship had always been disjointed. I saw that there had to be another reason.

The more I thought about it, the more I became convinced that I was the reason. I had changed, it seemed, and in as big a way that allowed black to have somehow become white. How that had happened, what had caused that shift in me, these were things I was less sure of.

Over the next few days, I kept on going back to that insight, twisting and turning it in my mind to look at it from different angles. I gnawed at it like a dog with a bone, trying to extract its essence. Slowly, my ruminations took me through the ebb and flow of the preceding year. Gradually, realization dawned.

At some point, I had accepted him; the good, the bad, everything. More crucially, I had accepted that I was his son and that without him, I would not have journeyed down that road that allowed me to become who I was and who I was becoming. My father may have been running, but I had been on my own long distance run. One that had instead of taking me towards where I wanted to get to had taken me away from it. I had stopped running. There was no reason to any longer; there had never been one.

And I saw then that we had to stop running away from who it is that we are.

For years we have fought off any idea of a real Malaysian identity, one in which we could just simply be Malaysian without having to underscore whether we were Malay, Chinese, Indian, Kadazan, Iban or anything else. We have done this not because we know that we cannot have such an identity but because we have preferred to believe in a fiction that had over the years been constructed on the foundation of pain, anguish and hopelessness that enforced separation from one another has caused us all.

It is in the interests of those who prefer to say that a Malaysian identity, a Bangsa Malaysia, is a myth, or that it can only be built around a national identity that prefers one aspect of our beautifully diverse lives, to perpetuate the reasons that keep us apart. The proof that what it is they say is the myth and that each and every one of us has a role in creating, nurturing and evolving our national identity, lies all around us. We just have to want to see it: the way we eat each other’s food and how that food has in a way become all our food, the way we celebrate each other’s festivals with as much gusto as we would ours as if they were our own, the mixed marriages and the children they have blessed this country with, the common dreams and ambitions, the aspirations of our young, our collective destiny.

What are these if not aspects of who it is we all are?

What makes us uniquely Malaysian is our difference and the way we embrace it as one community, warts and all. If we could begin to see that, then that day when we topple that foundation of illusions, and with it that edifice that has for far too long cast a gloom over us, will dawn.

My father is my father and I am his son. I am a Malaysian and I want to stop running.

(Malay Mail; 28th October 2008)


Saturday, October 25, 2008

Free RPK: The 2nd Habeas Corpus Heard

I am sorry for not having done this earlier. It has been a busy week.

As you would have already read, the hearing went on as scheduled before Justice Syed Helmy. on 22nd October 2008. The hearing went smoothly, with Justice Syed Helmy giving both sides a fair hearing. I do not think anyone in court, Marina and family included, who could have asked for more. We were given every opportunity to say what we needed to in the way we wanted to.

There were some administrative glitches that could have been exploited for benefit, but counsel for the government very graciously chose not to. With an accommodating Judge, we got over these minor humps very quickly and got straight to what needed to be done: the hearing itself.

Azhar Azizan Harun and I presented the case for RPK. Azhar (a.k.a. Art Harun of Navel Gazing) is an old friend and a well-regarded advocate. Though specializing in commercial and corporate law, he has always maintained an interest in public law. As soon as news got out that RPK had been detained, I got a call from him asking for news of developments. Once he knew that I was involved, he immediately volunteered to “carry bags” (some of you may have noticed the comment on my earlier RPK postings).

Ashok Kandiah and Neoh Hor Kee once again handled the solicitors’ aspect of the brief and, as before, from the time the detention order was issued did all that could humanly be done to get us as quickly and smoothly as possible to that hearing that morning. They, together with Amarjit Singh, J Chandra and Sreekant Pillay, helped put together the case that we presented that morning.

As I had noted in an earlier RPK posting, we were faced with one serious obstacle, judicial attitudes towards a provision in the Internal Security Act. The provision, section 8B, ousts the jurisdiction of the court to scrutinize acts done by the Minister in the exercise of discretion under the ISA except on procedural matters. There were decisions of the courts that suggested that this immunity from review applied to all cases.

If correct, then this meant that the scope of review was so narrow so as to be virtually meaningless. This would, for all purposes and intents, mean that one could not point to bad faith on the part of the Minister (acting outside the scope of his permitted powers) leaving the Minister to detain at whim. In my view this could not be correct, as this would allow for highly undesirable consequences, in particular the misuse of powers with impunity.

On this footing, Azhar and I split the arguments. I was to take the first attack.

The arguments were technical and I will not bog you down with detail. I can summarise my arguments as follows:
  • For reasons going to constitutional pre-conditions to legislating exceptional laws such as the ISA, and in particulars sections that allow for detention without trial, section 8 is unconstitutional;
  • Section 8B does not oust the jurisdiction of the court to consider whether the Minister was acting with jurisdiction or where the issuance of the order to detain was a nullity (void in law) for having been done without jurisdiction. As such, the court would have to consider whether the elements making up the state of affairs contemplated by the ISA – threat by a substantial body of persons that actions of the specified kind would be taken – were present at the time the detention order was issued as these were preliminaries to the existence of jurisdiction. Further, if it was contended that the Minister had acted mala fide (in bad faith), then the court was to consider this contention as this was an act not in accordance with the ISA itself (the law does not permit acts of such a nature) and as such not within the ambit of section 8B;
  • The Minister had acted without jurisdiction, as the preliminaries to the existence of his jurisdiction to detain did not exist. There was no threat by a substantial body of persons and RPK was had not acted nor was he threatening to act in any of the manners specified. The Minister had no jurisdiction. This contention was reinforced by the fact that the Islamic authorities had not seen it fit to charge RPK for insulting Islam. These authorities had exclusive domain over matters of administration of Islam and as such, the Minister could not have acted without fist having obtained authoritative confirmation from these authorities that RPK had insulted Islam;The grounds of his detention were incredible and as the Minister had explained himself through his grounds of detention, which were before the court, the court could not ignore this. Further, the Minister had not established that RPK published the writings on Malaysia Today or that RPK owned Malaysia Today;
  • The detention infringed RPK’s freedom to profess and practice Islam under Article 11. Though the Constitution permits the enacting of exceptional legislation that contravenes the right to life (Article 5), the right to a fair trial (Article 5), the right to free movement (Article 9) and the right to free expression, assembly and association (Article 10), it does not permit the contravening of the freedom of religion. RPK had stated in his affidavits that e write as a Muslim, guided by the Islamic principle of amar makruf nahi mungkar. As such, his writing was an expression of his faith and conscience;
Azhar then took the factual arguments on bad faith arguing that the Minister had acted for collateral purpose – to silence RPK for being a vocal critic of the Government of the day. He pointed to the pending criminal proceedings for sedition and criminal defamation and RPK' being innocent until proven guilty, and the fact that no action had been taken by RPK that could be said to constitute a threat to national security nor had he threatened to take any such action.

Counsel for the Minister argued, in essence, that the court was not permitted to scrutinize the decision to detain as this was a matter left entirely by law to the Minister, i.e. it was in his subjective discretion. Further, section 8B shielded the Minister from scrutiny, even on bad faith, and the only permissible challenges were those realting to procedure. That being the case, as long as the procedures were complied with and the Minister said that there was basis for the detention in his view, the court had no power to review.

We concluded the arguments on the 22nd itself, thanks to the Judge having cleared his schedule to accommodate us. At the conclusion of arguments, the Judge indicated that he needed to time to go through the comprehensive submissions and the law.

The Judge scheduled his decision for 7th November, the first date he could do so on. The Judge noted that this was a habeas corpus but explained that this was the earliest he could manage. This was fair in view of the seriousness of the arguments and the fact that the court has other matters before it.


Tuesday, October 21, 2008

The Ends Of Justice

The Ends Of Justice

In 2001, ten reformasi activists were detained by the police under the ISA, amongst them Ezam Mohd Noor, Tien Chua, Raja Petra, Abdul Ghani Haroon and N Gobalakrishnan. Habeas corpus applications were filed, challenging their detentions for being groundless and in bad faith as the detainees were in no way threats to national security.

In the order of things, the applications of Ghani Haroon and Gobalakrishnan came up before Justice Hishamuddin Yunus who was then a judge at the Shah Alam High Court. A team of lawyers led by R Sivarasa presented their case and as the issues involved were complex, the Judge reserved his decision to a later date to give himself more time to fully consider the submissions and the law.

It was decided by the team that I would appear before Justice Hishamuddin on the day he was due to deliver his decision. If the decision was favourable, I was to obtain a statement from both Ghani Haroon and Gobalakrishnan as to what had happened during their detention by the police. The detainees had not been permitted to see their lawyers from the time they were detained. Five of the other eight detainees had had their habeas corpus applications disallowed by Justice Augustine Paul, then of the Kuala Lumpur High Court, and his decision was under appeal to the Federal Court. Any information I could get was relevant to whether the police had acted in bad faith and would be of great significance to the appeal.

The team was however concerned that should the court free Ghani Haroon and Gobalakrishnan, they would be rearrested as soon as they stepped out of the courthouse. This was not an unknown occurrence, Karpal Singh having been famously rearrested upon his being granted habeas corpus in 1987.

My brief was as such to come up with a way to keep our two clients within the courtroom and get a statement from them before they were rearrested, if this was to occur. This was not going to be easy and I remember thinking that law school had not prepared me for this. There I had learnt of an ideal world where decisions of courts were respected not just in letter but also in spirit.

The decision was handed down as scheduled late in the morning. Nerves had denied me any sleep the night before and were making me nauseous. Justice Hishamuddin began to read out what we were to soon discover was a comprehensive and admirable treatise on the liberty of the individual and the care with which that right was to be safeguarded against executive arbitrariness. Armed with the Constitution, his hand guided by justice and humanity, the Judge struck down the detentions with all the condemnation that oppressiveness deserved.

I did not know that at the outset of course. As Datuk N H Chan, formerly of the Court of Appeal, muses in his book ‘Judging The Judges’, keeping audiences in suspense was one of the small pleasures of being on the bench. Justice Hishamuddin exploited that privilege and saved his conclusions to the end. There were hints though and as I began to believe that we might just win, a shiver ran down my spine. It, and the immense satisfaction that I felt at seeing the law serve the ends of justice as the judge granted habeas corpus, have stayed with me till this day. That memory, and the undying hope that it gave life to, have taken me back into court time and time again since.

It was a Friday and the Judge directed that our clients be produced in court that afternoon to allow him to direct their release. I was grateful for the extra time this gave me to come up with a firmer plan of action. Though I knew what I was supposed to do, the details were more than slightly hazy.

Thankfully, adrenaline works wonders. As we made our way to the courthouse, it was clear that something was afoot. There was a tremendous police presence in the precinct and in the court complex. Roadblocks had been set up and visitors were being screened. It was apparent that the police expected trouble and it was not difficult to see why. Though by winning supporters would be jubilant, not angry, an outburst could occur if provoked in the way a re-arrest would.

I felt outraged. We had fought hard and fair, and we had won the day. Surely, that could not just be wiped away.

If it was naiveté that fueled my emotion, I was glad. By the time I got to my feet, all nervousness was gone. Luck was also on my side, it would seem. Datuk Hishamuddin had had to walk through the throng of police officers as well. As I pointed their presence to the Judge and expressed my concerns about the possibility of a re-arrest, he turned to counsel for the government and asked whether this was going to happen. Counsel was equivocal and the Judge was not impressed. Turning to me, he said that I could take it that there was going to be a re-arrest and asked what I wanted.

This was the moment of truth. Noting how he had concluded that the detention was unconstitutional and inhumane, I explained how the wives of the detainees had been informed and were on the way from Penang even as I spoke. I urged him to consider how unjust a re-arrest of the detainees would be and reminded him how, as a High Court Judge, he was empowered to give any direction to give effect to my clients’ constitutional rights. I asked that he restrain the police from re-arresting the detainees for a period of twenty-four hours and then I prayed.

Justice Hishamuddin granted the order. Our clients saw their wives and families. They were never re-arrested under the ISA.

(Malik Imtiaz Sarwar is counsel to Raja Petra Kamaruddin whose habeas corpus application is scheduled before the Shah Alam High Court on 22nd October 2008. He is also the President of the National Human Rights Society and blogs at

(Malay Mail; 21st October 2008)


Wednesday, October 15, 2008

On Unity

The River

In the valley of Kadisha where the mighty river flows, two little streams met and spoke to one another.

One stream said, "How came you, my friend, and how was your path?"

And the other answered, "My path was most encumbered. The wheel of the mill was broken, and the master farmer who used to conduct me from my channel to his plants, is dead. I struggled down oozing with the filth of those who do naught but sit and bake their laziness in the sun. But how was your path, my brother?"

And the other stream answered and said, "Mine was a different path. I came down the hills among fragrant flowers and shy willows; men and women drank of me with silvery cups, and little children paddled their rosy feet at my edges, and there was laughter all about me, and there were sweet songs. What a pity that your path was not so happy."

At that moment the river spoke with a loud voice and said, "Come in, come in, we are going to the sea. Come in, come in, speak no more. Be with me now. We are going to the sea. Come in, come in, for in me you shall forget your wanderings, sad or gay. Come in, come in. And you and I will forget all our ways when we reach the heart of our mother the sea."

Khalil Gibran, "The Wanderer" (1930)

Tuesday, October 14, 2008

All The King's Men...

All The King's Men...

I wonder what it means for the future of this country that Datuk Mukhriz Mahathir, a current UMNO favourite son and most certainly one whom the dizzying heights beckons, has taken the view that matters pertaining to the reform of the Judiciary are not a priority. As was reported in an article in The Sunday Star, the Honourable Member of Parliament for Jerlun questioned the need for judicial reform. He claimed that Malaysia would not crumble without these reforms and, in any event, they did not benefit the Malays or UMNO.

I would have thought that the question of whether the Judiciary and the wider system of justice are in need of reform is moot. Even without the acknowledgment by the Government earlier this year that steps had to be taken to restore confidence in the Judiciary, it is glaringly apparent that all is not as it should be. Standards of judicial competence are worryingly low as is public certainty of the integrity of the judicial process. This latter aspect is no longer a matter of speculation, delusion or political spin; the conclusions and recommendations of the Royal Commission of Enquiry on the VK Lingam video made things explicitly clear: things need to be sorted out.

Matters of judicial competence and integrity impact across the board; they are neither race nor political-party specific. Bad or skewed decisions hurt the wider legal profession and the nation as a whole as much as the litigants involved. One of the biggest difficulties practicing law at the present is the lack of certainty in the law, in part for there being a slew of decisions that have been adjudged without due regard to principle or precedent. In becoming precedents themselves, these decisions have undermined the foundations of not only the legal system but also the system of commerce that it supports. Commerce being wholly dependent on the certainty that only an effectively functioning legal system can provide, the current state of affairs is anathema.

It is for this reason that when entering contracts pertaining to Malaysia, many a commercial party now take pains to stipulate that the law of the contract is not Malaysian law and that dispute resolution is to take place outside the country. That is a cause for great concern, one that we have ignored for far too long to our own detriment. A weak system of justice does no favours for the country in which it exists; it is a sure path to failure for driving investment away, much as we are currently experiencing.

Is this not a matter that affects the Malays and UMNO as much as the rest of us?

This is not just a matter of our all being Malaysians and having a common future. Malays are as much litigants before the courts as any other Malaysian. They are as involved in business and corporate deals as much as the next person is, even more some would say. A cursory perusal of the law journals would show just how far, just as they would the fact that they accuse, or are being accused, of cheating and breaching duties, or murder, rape or theft, just like anyone else. UMNO itself is capable of being dragged into court just like any other society and has in fact been there before.

Surely a stronger, independent and more competent Judiciary would benefit these quarters, as much as they would everyone else? After all, justice is supposed to be blind.

I think Datuk Mukhriz Mahathir has much to offer this nation, in parliament and outside it. His reasoning in this instance is however sorely misconceived. The said article suggests that he has formed the view that the reforms are an expression of anti-Mahathirism, notably that of Datuk Zaid Ibrahim. Though I will not speak for the former Minister in charge of legal affairs, he is more than capable of doing that for himself, I will say that the potential UMNO Youth Chief may have mistakenly confused an articulation of the need for reform with a personal attack on Tun Mahathir.

The call for reform started long before Datuk Zaid Ibrahim made headway in UMNO. It was prompted by the serious consequences of the 1988 attack on the Judiciary and the Rule of Law. Many in one form or the other, including the Judiciary itself and great legal luminaries such as His Royal Highness Sultan Azlan Shah, have taken it up. Their message is clear; something needs to be done.

The Malaysian Judiciary was once respected throughout the Commonwealth, it no longer is. Its foundations have suffered a beating from the shockwaves that emanated from the events of 1988. The testimony at the Lingam Commission hearings showed how much they still reverberate and, for that, how precarious the position of the institution is.

Is it in danger of collapsing, taking the nation along with it? Only time will tell. The question for us all, Datuk Mukhriz included, is whether we want to wait to find out.

(Malay Mail; 14th October 2008)