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Wednesday, July 30, 2008

The Politics Of Race

The Politics Of Race

It is abundantly clear that the politics of race has slowly and surely brought to this country to the brink of disaster.

We are a nation divided, kept from strength by divisive policies that constantly remind us of our differences rather than our similarities and, in doing so, breed distrust and weakness. We have been reduced to nothing more than representatives of our different ethnic communities. Instead of being husband, father, wife, mother, child, lawyer, artist, accountant, doctor or public intellectual, we are instead Malay, Chinese, Indian or Other, the value we can each add to this society limited by the box that keeps us in our respective categories.

Though this may serve political interests, ‘divide and rule’ having always been a useful strategy for ensuring dominion, it does not serve our interests and those of the nation.

The NEP was intended to address disparities in income levels between the primary ethnic groups even as it addressed poverty across the board. I believe that over the years political interests had gradually hijacked the policy, so much so that Ketuanan Melayu has come to define the social contract for some while others believe that affirmative action is a permanent privilege of birth notwithstanding the policy having led to the enrichment of a small elite at the expense of the wider community and the nation.

Accepting that this is a contentious issue, consider instead where race based policies have left the nation and the Malay community respectively.

Where public education is concerned, though the policy has allowed for greater Malay student intake into institutions of learning at all levels, admission quotas and declining standards in a mass assembly style education system have led to the production of graduates, Malays and non-Malays alike, who are simply not good or confident enough to do what it takes or sufficiently experienced to deal with multi-racial existence. This has been influenced to an extent by political objectives that have suborned quality to quantity and, in having permitted race based appointments of educators, subjected the education system to a cycle that undermines it.

Seeing as how local graduates, diploma holders or school leavers form the bulk of the work force, in part due to more young Malaysians choosing not to return home after completing their studies abroad because they do not believe they can achieve the quality of life they aspire to here, this cannot be a good thing. It is no secret that the country faces a major human resource shortage.

This has had serious implications. One of the more evident knock-on effects is the impact it has had on the civil service. It is an open secret that race has played a big role, and continues to do so, in appointments and promotions, having resulted in a civil service made up almost entirely of Malays, graduates of local universities and schools in the main. In time, it has come to be dominated by persons who are not sufficiently equipped with the skill, knowledge and experience to do what they have to, unlike their predecessors.

The same can also be said of public institutions such as the Judiciary. Appointments to the bench have largely been from the Attorney General’s Chambers or the Judicial services and in this way the civil service experience, such as it is, has found its way onto the bench.

In all of this and more, race has figured very prominently, even though it should not have. It is not insignificant that of the ten Federal Court judges currently serving, eight are Malays, as are fifteen of the twenty serving Court of Appeal judges and thirty-three of the forty-eight serving High Court judges, the overwhelming majority of them having been appointed from the civil service.

This raises important questions. Though affirmative action may be a relevant consideration for us, what is the cost we will have to pay for it? Do we have to sacrifice our competitiveness and sustainability?

I think not. There are ways in which the poor and the disadvantaged, Malays and non-Malays alike, can be assisted without having to sacrifice the competitiveness of the nation or the individual Malaysian’s right to be the best he or she can be. Creating the methods by which this can be done requires maturity, a consideration of what this country needs in the long run and, above all, a jettisoning of political interests.

Sadly, it would seem that the Government has been incapable of this.

Take the Judiciary for instance. The Prime Minister has publicly admitted that we may not have the best persons for the job on the bench. It also appears as if race quotas have been imposed on appointments. How is it that that could have been permitted? The Judiciary is a crucial institution, a cornerstone of democracy that requires the best minds to function as it was meant to. Leave aside the fact that the Constitution does not authorize such quotas for the Judiciary, that justice can be served by reference to ethnic considerations defies logic and common sense. Justice is blind to all considerations, race and religion included.

That the Government was prepared to allow the Judiciary to be subverted in this way is indication enough of how it is that other aspects of governance have been approached, especially those essential to the functioning of the pluralist democracy that Malaysia is. It is hardly surprising then that race relations has taken on an edge that it never had before.

(Malay Mail; 29th July 2008)


NB. The special status of the Malays and the natives of Sabah and Sarawak is constitutionally enshrined in Article 153 of the Federal Constitution. As I have written elsewhere, this allows for measures to be taken in protection of these groups. Nothing in this comment is intended to undermine the significance of that constitutional provision.

Tuesday, July 29, 2008

Did The Boy Cry "Wolf"?

I am not partial to conspiracy theories; they tend to blur the lines between fact and fiction even as they obscure the paths to the truth.

It is for that reason that I have veered away from claiming that the events leading to the proclaiming by the Government, through its agents, that Anwar Ibrahim had committed sodomy and the events since have been aspects of a conspiracy aimed at undermining Anwar Ibrahim politically and removing him as a threat.

Until now, that is. The events of the last two days have made it impossible to preclude the possibility.

The revelation that a doctor had examined Saiful Bukhari prior to his having lodged the police report and found there to have been no indications of his having been sodomized are in themselves sufficient to put into question the validity of actions taken by the police to date. Any possible doubt as to this conclusion was put to rest by the manner in which the police dealt with the revelation of the medical report.

The New Straits Times, reported yesterday that:

Police have dismissed reports on the Internet that a private hospital doctor had not found any medical evidence of sodomy by Datuk Seri Anwar Ibrahim’s accuser as another attempt to sabotage police investigations.

Deputy Inspector-General of Police Tan Sri Ismail Omar said the reports were also aimed at confusing the people. Police, he said, were considering investigating the news website and a blog over their reports, which referred to a medical report allegedly issued by Pusrawi Hospital on Jalan Tun Razak.

"The news report claimed that there was no evidence that Anwar’s former aide Mohd Saiful Bukhari Azlan had been sodomised. However, Ismail declined to comment on the medical report itself, saying investigations were ongoing.

From this, it would seem that the position of the police on this is NOT that the report exonerated Anwar Ibrahim but RATHER that the news portal and the blogger (I presume these to be Malaysiakini and Raja Petra respectively since they broke the story first) conspired to sabotage on-going investigations by fabricating a story about a medical report that makes it evident that Anwar Ibrahim was not sodomized so as to confuse the public.

But wait.

The Deputy IGP declined to comment on the medical report. That and the fact that there has been no denial of the existence of such a report by the hospital concerned, point to such a report having been made. If that were the case, what sabotage could there be? Could the Deputy IGP have been concerned about the image of the force, the possible perception that it had been directed to ends that were not entirely proper? As things stood yesterday, prior to his statement to the New Strait Times, there was no reason to conclude that the police force had acted improperly as it was possible that the police knew nothing about the report and had pursued a line of investigation without having been appraised of all the relevant facts.

But then, the news report also confirms that a statement was taken from the doctor concerned, making it evident that the police knew about the medical report. This is something the Deputy IGP would surely have known.

So, what sabotage was there? This was a strong accusation, suggesting active interference with investigations with a view to derailing them. But if there was a medical report and it says what it does, and this is the truth, would that not facilitate investigations rather than impede them?

Why sabotage? The use of the word is disconcerting. As is the fact that the doctor has not been available for comment. The parallels with the sudden unavailability of Private Investigator Balasubramaniam after his sudden u-turn are worrying. Even if direct pressure has not been brought to bear on these individuals, it is manifest that the individuals concerned are sufficiently fearful of reprisal so as to have disappeared from public life. Above all, this points to things not being as they should be.

As things stand, it would seem there is no basis to form the view that Anwar Ibrahim sodomized Saiful Bukhari. The existence of the medical report puts into doubt the credibility of his accusation. The fact that Anwar Ibrahim has not been charged to date lends credence to this conclusion bearing in mind that the decision to prosecute can only be made if there is sufficient evidence for a court to convict the accused if that evidence was not rebutted by the accused (a prima facie case).

And if it is true that Saiful Bukhari was not sodomized, it is equally important that Malaysians be made aware of what prompted his accusation. The circumstances are ambiguous and suggest a range of possible motivations, range from a desire for attention on the part of Saiful Bukhari to the more sinister possibility of a full fledged conspiracy.

Whatever the case, in view of the possibility that the tremendous resources harnessed for the investigation into Anwar Ibrahim had been wasted on an exercise in futility, it would seem that there is sufficient basis for the police to commence investigation into these motivations, if only to attempt to restore confidence in the integrity of the force.


(Read also Tommy Thomas' incisive and thoughtful analysis on the impact of a second prosecution of Anwar Ibrahim for sodomy on Malaysiakini here)

Sunday, July 27, 2008

Why Has Anwar Not Been Charged?

I have been reading material that suggests that the publicity on the police report against Anwar Ibrahim is having an impact, even within the Pakatan Rakyat. It would seem that some in PAS are concerned enough to have allowed for discussions with UMNO to have become, or be seen to have become, more nuanced. Karim Raslan suggests that Anwar Ibrahim’s refusal to swear on the Quran is making enough people skeptical

I am not sure how correct this is. My sense, and I have written this elsewhere, is that enough people see the current events as being a politically driven, opportunistic or otherwise, initiative aimed at weakening Anwar Ibrahim and the Pakatan Rakyat.

With all of this and more, the burning question for me is why is it that much drama later - from the highly publicized police report by the alleged victim to Anwar seeking refuge with the Turkish Ambassador to his medical examination – Anwar Ibrahim has as yet to be charged?
Considering the extent of the insistence by the Government as to there having been a basis for all that has happened, most importantly the taking into custody of Anwar Ibrahim, and the tremendous publicity given to almost every dimension of the entire sordid affair, there would be enough for the Public Prosecutor (the Attorney General) to have preferred charges already.

That is what I would have done if I was the person making the decisions (I can fantasize, small pleasures). I would have charged Anwar Ibrahim and asked for an early trial of the matter seeing as how Anwar Ibrahim, and everything that happens to him, is very much in the public interest. I would then have marshaled the evidence and presented it during the prosecution stage of the case. That would have served all interests, legal and political.

So, why hasn’t it been done? Could it be there that there is not enough to go to court on? Is the investigation aimed more at fishing than it is at forming a basis for a reasoned decision, one way or the other? Or could it be that the trial is already underway in the court of public opinion.

Judging by topical commentary, that seems to be the case. Everyone is going to town, it would seem, on Anwar Ibrahim. And, as much as Anwar Ibrahim may not draw the support of some, that is not fair. He is entitled to judged by way of a fair trial and not by way of a media frenzy.

As things stand, Anwar Ibrahim is innocent. He was acquitted of the earlier charge of sodomy. In law there is no question of factual guilt as opposed to legal guilt. His acquittal means that he was not guilty and the prosecution did not prove its case, no matter what some might say. As for the current allegations, they remain just that: allegations. Anwar Ibrahim has not even been charged, how can any one of us form the view that he did anything. The law applies equally to all.

Now can we get back to thinking about running the country ?


Tuesday, July 22, 2008

See No Evil, Speak No Evil

See No Evil, Speak No Evil

If the Anwar-Shabery debate was anything to go by, it is apparent that the Government continues to deal with things the way it has always done: by burying its head in the sand.

In his enthusiasm to point us at the global fuel crisis, Shabery Cheek appears to have blinded himself to the obvious flaws in the system the Government created and maintains. I waited in vain for him to cut out Anwar Ibrahim’s feet from under him by tactically acknowledging that long standing corruption had left us less capable of dealing with the crisis on hand for having robbed us of the invaluable resources needed for a more gradual and managed dismantling of subsidies.

But then, perhaps I should not single him out for blame. His perspective, that of the “there’s nothing wrong with the way we do things” variety, is one that appears to be shared by fellow members of the cabinet. Speaking of the concerns expressed by the US State Department on the current investigations into Anwar Ibrahim, Foreign Minister Datuk Seri Dr Rais Yatim is reported as having defended the application of the Rule of Law in this country.

Dr Rais had indicated that he wished to enter into a debate on the subject with foreign critics. I am very much a Malaysian and do not as such qualify. I am certain however that the Minister will not begrudge me a round or two in the ring with him.

Allow me to start with a few concessions. I concede that there is in place a written constitution that is the supreme law. I also conceded that the primary institutions of a system of administration of justice – the Judiciary, the legal profession and the police force – exist, as do laws that are enacted by elected representatives in legislature. Additionally, I agree that provision is made for the appointment of judges, prosecutors and a host of other officers who man the system.

But then, so do Zimbabwe and a number of countries in which the rule of law has collapsed. Burma in fact only recently unveiled a sparkling, bright constitution filled to the brim with the requisite bells and whistles.

The point here is that the mere existence of the institutions that make up a system of administration of justice does not in itself give rise to the Rule of Law. That only exists when it can be said with certainty that the system by which justice is administered is one that is competent, of integrity and independent. The Minister might say that we have such a system. His fellow minister, the Home Affairs Minister might say it too. Their views, as relevant as they may be, are not definitive.

Neither is that of the Prime Minister, the Foreign Minister, the Home Minister or the de facto Law Minister or the entire cabinet. It would not matter even if they assembled at the top of the Twin Towers along with every other Barisan Nasional member of parliament and proclaimed it to the heavens. The only relevant point of view is that of the rakyat. As the Minister fully appreciates, a system is only effective if it inspires public confidence. Like justice, public confidence is in part a question of perception.

The question is whether the Malaysian system inspires confidence. I think not and the average Malaysian cannot be blamed for thinking it.

Through the last decade or so, we have heard from authoritative personalities of the low level of public confidence in the Judiciary. The events that resulted in the Lingam Royal Commission of Enquiry and its damning conclusions and recommendations merely reinforced belief that all was not well in the Judiciary and that something had to be done. The Government has recently acknowledged the need to appoint the best persons for the job and the need for reform to allow for that.

Where the police force is concerned, a separate Royal Commission of Enquiry had found that abuses of power and corruption was sufficiently widespread for it to make numerous recommendations including the establishment of an Independent Police Complaints And Misconduct Commission. No significant changes have been made since the recommendations and the IPCMC remains a concept on the proverbial drawing board. No basis for increased confidence there, even if that was possible bearing in mind police actions over the last year or so.

The Attorney General’s Chambers has not been spared. Questions had been raised of the Attorney General’s conduct when he was second chair in the prosecution of Anwar Ibrahim in 1998. The underlying issues were not raised, a matter that the Federal Court had reason to take note of. Since then the issues have come up again, this time as the subject of investigations by the Anti-Corruption Agency. This and recent decisions taken by the Attorney General have raised eyebrows, Malaysians being very aware that like the Inspector General of Police, the Attorney General is dependent on the largesse of the Prime Minister.

The public image of these institutions has taken a serious beating, so much so that it would not be unreasonable for the average Malaysian to believe that the entire system needs an overhaul and until that is done the system will not work as it is meant to. With draconian laws such as the Internal Security Act and the Official Secrets Act in active use, it would not take much for one to believe equally that the law is an instrument of the Government and that the Government is above the law.

And that, as the Minister undoubtedly appreciates, is Rule By Law. Over to you, Dr Rais.

(Malay Mail; 22nd July 2008)


Wednesday, July 16, 2008

6 Years...

... and counting.

184 Plaintiffs commenced legal action against the Federal Government and the Governments of the States of Perak, Selangor and Negri Sembilan. They were made up of farmers, workers, dependants of persons who had died and persons who had suffered personal injury, all having suffered injury from the so-called Japanese Encephalitis outbreak of 1998. They claimed that the Governments had mishandled the situation, misdiagnosing JE when it was in fact something very different and more dangerous, Nipah Virus. They claimed that the Governments had tried to cover this up, insisting that it was JE even when it became clear that it was not.

The High Court struck out the action on a technicality in 2002, taking the position that the specific agents of the government who had done wrong should have been joined, instead of just the Governments. Leaving aside the fact that this was impossible, bearing in mind the number of persons involved, there was (as we saw it, and still do) no legal requirement for this to be done.

The Court of Appeal reinstated the action in 2005, taking the position that there was no need to do so and that this was an appropriate matter to be taken to trial, it being amongst other things in the public interest.
The Federal Court granted leave to the Governments to appeal and heard the appeal yesterday. Six years later, we are still dealing with preliminaries.

The Star carried a report today. It says it all. Whether the Plaintiffs get their day in court is up to the Federal Court.


Note that the proceedings at this stage are merely at the preliminary stage. What was said was based on what has been set out in the claim of the Plaintiffs. These facts have as yet not been found to have occurred

Outbreak actions protected by law

PUTRAJAYA: The Government’s actions in addressing the 1998-99 Nipah virus epidemic are protected by law, the Federal Court heard.

Senior Federal Counsel Datuk Mary Lim submitted that the provisions provided by legislation offered absolute protection.

She said this was even more so when the orders made by the chief ministers in the affected states for certain actions to be taken over the existence of viral encephalitis in animals, including culling, had gone unchallenged.

Lim, representing the Federal Government and the state governments of Perak, Selangor and Negri Sembilan, was making submissions in an appeal against a suit filed by 184 pig farmers and the next-of-kin of those who died during the epidemic.

The senior federal counsel also argued that the suit was defective because it named the Government as the principal defendant for tort or a breach of a person’s rights.

She said this contravened the Government Proceedings Act 1956.

“You cannot sue the Government directly for tort. You can only sue the Government vicariously,” she said, adding that those who had committed the torts had to be made parties to the suit.

Malik Imtiaz Sarwar, counsel for the plaintiffs, argued that the question of immunity was based on law and facts, and that these protection provisions were applied provided the necessary elements were fulfilled.

“However, based on our pleadings, there was a great deal of misdemeanour on the part of the Government,” he said.

Citing examples, Malik Imtiaz said the Health Minister had reiterated on several occasions throughout the epidemic, which started in September 1998, that Japanese Encephalitis (JE) was a disease affecting the animals.

The minister, he said, had even assured the public that consumption of pork was safe, as JE could not be transmitted that way.

The lawyer pointed out that an expert who had suggested the possibility of another type of virus had also been reprimanded for questioning the “official theory”.

Malik Imtiaz said it was only in March 1999 that the Centre for Disease Control in the United States identified the virus as a new strain – subsequently named the Nipah virus – and classified it as P4, a pathogen that could only be handled by personnel in safety suits inside a secure lab.

“All the while, we had the Health Minister telling people to eat pork and that it was safe,” the lawyer submitted.

On the contention that the Government could not be sued for tort as a primary defendant, Malik Imtiaz agreed with Lim but pointed out that the suit had spelt out that the Government acted through its agents.

However, he disagreed that those agents had to be named as defendants in the suit saying it was only necessary to identify them and establish the liability.

Justices Arifin Zakaria, Nik Hashim Nik Ab Rahman, and Zulkefli Ahmad Makinudin reserved their judgment to a date yet to be fixed.

The suit, filed in 2002, was struck off by the High Court the same year before the Court of Appeal restored it in 2005.

Anwar Ibrahim Arrested

At 12.55 pm, outside his house. He was due to give a statement to the police at 2.00 pm.

We should remain calm and await further developments. From media reports, it would seem that Anwar Ibrahim was prepared for this and has lawyers at the ready. If he is being arrested in connection with the alleged sodomy, then he should be brought before a magistrate within 24 hours and be charged unless a remand order is obtained to allow for further investigation. The offence is bailable and I see no reasonable basis for bail being refused.

The authorities must take every care to ensure that nothing untoward occurs. We in turn should not be reactionary.


Tuesday, July 15, 2008

The Human Condition

The Human Condition

I was seventeen when Operasi Lalang took place.

In Singapore for my A Levels, I was far removed from the drama that preceded and followed the massive Internal Security Act crackdown of 1987. Loathe as I am to admit it now, I have to confess to having been largely ignorant of the political tensions that had led to the mass detentions and even less so about the kind of things that could happen to a Malaysian if he or she happened to be in the wrong place at the wrong time. The ISA was simply something that never really came up in conversation.

Until that year.

Karpal Singh and wife, Gurmeet, have been family friends for as long as I can remember. They still are. I was in school with four of their five children, being particularly close to the two eldest, Jagdeep (Penang State Assembly member) and Gobind (Member of Parliament). As they were closer to my age, we had more in common, having the kind of fun and getting into the kind of trouble that teenagers would. It was a time of hilarity, not an unhealthy dose of stupidity and, above all, great friendship. Something that Mr Karpal figured in as much as he could despite his insanely busy schedule.

I was told that Mr Karpal had been detained by my mother in a terse telephone conversation. Everyone was fearing the worst, the unfolding events were reminiscent of May 13, far fresher in the mind then than it is now.

It took me a while to come to grips with the notion that Mr Karpal had been detained. Ignorant, I asked my mother what crime he had committed; he was a lawyer after all and a man who stood by the law. She had a difficult time trying to make me understand how it is that the Government could detain someone at will, for no crime other than standing up for his principles. I laughed when she told me that the Government had declared that Mr Karpal was a threat to national security. I stopped laughing when I realized that she was being serious.

I thought of the boys, my friends, wondering how they were taking it. Their father had disappeared into an unknown that was terrifying for its lack of shape and form. Stories of abuse and mistreatment were leaking through, stories that have more recently been given form by the award of RM2.5 million in damages to Malik Hussein for his being tortured during his detention in 1998.

I could not return to Kuala Lumpur then so I saw Jagdeep a few months later when he visited. He was no longer the playful and mischievous boy I had last seen about six months earlier. There was a stillness and resolve I had not seen before. He was quiet, withdrawn and spent most of the visit talking about how sad and angry he was; for not being able to do anything for his father, or his mother, and at the unfairness and utter injustice of it all. Dr Mahathir had taken away his father with the flick of a pen with no real thought of what it is that was being done to the family. Or perhaps that was part of the strategy, a conclusion that the continued detention of the HINDRAF 5 points to.

I saw Gobind a short while later. His emotions were a reflection of those of his brother. The anger was palpable.

Those impressions have lived on in my mind and heart. I have seen the same emotions play over the faces of those I have tried to help in the years since; anger, pain and a deep resentment at the arbitrariness and arrogance of power.

In 2001 a team of lawyers – Haji Sulaiman Abdullah, R Sivarasa, Christopher Leong and I - argued an ISA habeas corpus appeal in the Federal Court. In the course of submissions, we pointed to the fact that even during the height of apartheid in South Africa, the liberties of individuals detained under a similar preventive detention law had been better protected, as marginally as that may have been, by the courts there. It was a point that struck home both in court and outside it. I had thought that I could think of no better way to illustrate how oppressive the ISA and the system that supports it are

That impression changed recently. ISA detainee, Shahrial Sirin, has been in detention without trial for seven years. On July 2nd this year, his seventeen-year-old daughter, Aina, was admitted to Kajang Hospital, her death imminent. Shahrial only came to know of Aina’s condition the next morning and, after struggling with red tape, left Kamunting under escort at 5 pm. Aina died before he could reach her. He was prevented from being with his daughter by nothing more than the administrative whimsy of a Minister who for his own, wholly subjective, reasons believes that Shahrial is a threat.

Just as any one of us could be.

The ISA is a cruel law. There is no justification for its continued existence or any system that supports it. I am beginning to think that if the Pakatan Rakyat can promise us nothing more than the repeal of the ISA, it deserves to form the government. We can build everything else from there.

If a person has committed a crime, then let him or her be charged and tried in court. No wrong is so evil that it deserves to be exempted from this process. The presumption of innocence and freedom are not fictitious notions, they are the essence of the human condition.

(Malay Mail; 15th July 2008)


Tuesday, July 8, 2008

An Ode To My Mother

An Ode To My Mother

A few days ago, a friend of mine was telling me about how her six-year-old son was beginning to assert his individuality in a quest for increased autonomy. An inquisitive and highly intelligent child, he could not see why his being prone to illness and the fragility of technology should stand in the way of his sole custody of the remote control to the air-conditioner in his room. No slight matter, this was a question of sovereignity as he could not, in his view, feel secure in his possessory rights until he had control of the remote. Needless to say, two remotes and several bouts of fever later, his mother has a very different view of things.

Leaving aside the fact that in my considered view his insecurity was not unreasonable, bearing in mind the recent decision of the International Court of Justice on Batu Putih, it got me thinking. About personality, identity, the what and why of who we are, and the bonds that keep us together.

I remember an early attempt to wrestle with the nature of my relationship with the world at large. I was about five, in the back seat of my mother’s car, on the way home from somewhere, and I suddenly wondered what would happen if I opened the door. There was only one way to find out, and so I did. It was amazing, a real ‘Ben Hur’ moment for posterity; wind in my hair, ground flashing by, the neighing of horses in my mind’s ears. My mother took a different view. Till this day I have not figured out how she was able to slap me, into the car and not out of it, close the door and lock it, all while she was driving.

This was to be a recurring theme in my relationship with my mother; the narrowing of the eyes, the hiss of breath expelled and the sudden blur of hand, every single time my sense of individuality collided with her perspective of how things should be. Like when I decided that having hair was just too much trouble at thirteen and shaved my head or when I cut school at fourteen to conduct an anthropological study of a toddy shop.

The slaps stopped into my late teens but I still got the narrowing of the eyes and the hiss. Like when I called in from Benares during the height of the Barbri Mosque riots and tried to fool her into believing I was safe by telling her I was in a quiet, sleepy town called Varanasi. I could not see her eyes then, but I could feel them narrow, just before I heard the hiss.

One would think that when in 2006 posters calling for my death as a traitor to Islam were being circulated, there would have been much to think about. There was simply no space in my mind; I was worried about how I was going to tell my mother. A few years earlier, together with three other lawyers, I had been involved in an important Internal Security Act case in the Federal Court. We won, and got ourselves on the front page of the newspapers. I called my mother and got hissed at. The prospect of stardom apparently did not quite balance out the probability of reprisal.

So it got to a point where I thought that I had to take the offensive. I sat my mother down and told her that I was a product of bad up bringing, that I did what I did because I had been raised the way I was. And if she did not believe it, I could call upon at least five to six thousand Islamists who shared my view. She at least had the courtesy of laughing before narrowing her eyes.

To be fair, if I was in my mother’s shoes I would be having serious anxiety issues. It has not been easy for my parents and I owe it to them to acknowledge that fact and their continued faith in my knowing my own limits. Amidst the scolding, the lectures and the hissing, there was an understanding that the only way they could protect me from harm was to allow me to find myself, and that this was a journey all of my own. I think, above all, it was this that persuaded my mother not to refer me to a psychiatrist when she discovered the short stories I was writing at fifteen (she came close to it though).

I am still on that path and the eyes still narrow, though less so for my brother having dutifully, and very usefully, provided grandchildren that serve to distract. My family gives me the space to do what I need to, and the space to find my way back to them, life continuing its cycles in its own time. It is the same for my friend, her son and her family, as it is for countless other Malaysian families throughout the country.

And I wonder, when did we stop doing that for each other as a community?

(Malay Mail; 8th July 2008)


Friday, July 4, 2008

Rule By Law

It has become manifest that the Rule of Law has collapsed in Malaysia.

Even if Anwar Ibrahim were to be found guilty of sodomy, the court of public opinion would have acquitted him. Even if the Deputy Prime Minister were shown to be wholly unconnected with the events underlying the Altantuya murder trial, that court would have already found otherwise. It would not matter if all the police officers, prosecutors and judges in the country were to say otherwise or if all the untruths, one way or the other, were undone. Malaysians, or at least a very large number of them, have lost faith in the system.

The Rule of Law does not exist merely for there being present the institutions of the administration of justice. Courts, prosecutors, a legal profession and a police force do not in themselves give rise to the Rule of Law. That can only occur if they collectively function in a manner that allows for the full confidence of the Malaysian public. Without such confidence, these institutions are nothing more than empty shells.

There is no longer a basis for continued public confidence in these institutions. Where the police and the Judiciary are concerned, this is a state of affairs that has for all purposes and intents been formally recognized by two Royal Commissions of Enquiry. The office of the Attorney General is suborned to the Executive and its impartiality has been put in doubt, its decisions and conduct having become increasingly questionable. The legal profession has been largely neutered by self-interest or the need for self-preservation.

Corruption or abuses of power are perceived as permeating throughout.

The intensifying sequence of events that has played out these last few weeks has done little to build confidence in the system. If at all, it has eroded what little faith there was.

The need for reform is widely acknowledged, even by the Government. That little or no real reform has taken place is similarly widely known, as is the politicking that stands in the way. A system that works to vested interest, even if it is a shell propped up by laws that have been beyond challenge, is after all a system with value for those whose interests it serves. In it, existence is a game of chance played out in an arena of fear and unchecked power, and umpired by laws utilized in aid of the arbitrariness of Government.

We should not fear and yet that is what we do. For how can it be otherwise under a Rule By Law. Under it, might is always right.


Why Balasubramaniam's First Declaration Is Still Significant

P Balasubramaniam has made an about turn and released a new statutory declaration. From media reports, it appears that he claims that those parts of his original Statutory Declaration that pertained to the Deputy Prime Minister were made under duress.

He has not been forthcoming with particulars of his purported duress. This is unfortunate as it raises many questions that the Malaysian public is deserving of answers to. As I understand it, the inflicting of duress in law requires the subjecting of a person to the kind of treatment that would leave that person with no doubt that he or someone close to him would be in grave danger, life and limb, unless that person cooperated with the person inflicting duress.

Is Balasubramaniam saying that representatives of Keadilan inflicted duress or that his previous lawyer did? We cannot overlook the statement given by Anwar Ibrahim at the same press conference yesterday in he explained how Balasubramaniam had come to make the Statutory Declaration. From this perspective, the accusation of duress is not a trivial one as it carries grave implications and consequences.

In the same vein, if in fact the police were in contact with Balasubramaniam yesterday, after the press conference at which he released his original (and now retracted) Statutory Declaration as the media suggests, the police should also make it clear to the rakyat what it is that transpired, if only to clear up any doubt as to the circumstances in which Balasubramaniam retracted his original statement.

I say this because the original Statutory Declaration was itself of grave importance and carried with serious implications. I have noted that some writers have been quick to question or dismiss the value of the original Statutory Declaration for it allegedly being hearsay, or put another way, containing only second hand information not directly within the knowledge of Balasubramaniam.

I do not share this view. Allow me to explain why.

The law requires direct evidence of a fact. Second-hand knowledge is considered to be unreliable. However it does not follow that ‘hearsay’ evidence is not admissible or irrelevant in all cases. Evidence is multi-faceted and is never merely proof of one fact. Considered from different angles, a single piece of evidence may tell more than one story.

For example, A tells B that A had stolen some money. B then tells C. C’s evidence of the conversation is not admissible as an admission by A or as proof of theft. Put another way, A could not be convicted purely on the say so of C. Evidence of A having committed the theft would have to be put before the court, in one form or the other. This is the essence of the hearsay rule.

However, this does not mean that the fact of B telling C is of no relevance. The fact is that A and B had that conversation and though C’s evidence may not be able to establish the truth of what was told to him by B, it can establish that such a conversation took place. The law permits this. If admitted, such evidence could be considered as ‘circumstantial evidence’.

Seen in this light, it is clear that the original Statutory Declaration was of great significance. In it Balasubramaniam categorically stated that he gave information to the police about the conversations he had had with Razak Baginda and Altantuya AND that such information was excluded from his statement AND that the Prosecution did not ask him any questions about this aspect of the information he gave to the police. These pieces of evidence were not hearsay as they were matters directly within the knowledge of Balasubramaniam. They were also manifestly relevant.

Additionally, for the reasons explained above, the fact of the conversations between Balasubramaniam and Razak Baginda and Altantuya respectively were also of relevance for equally suggesting an alternative or additional line of enquiry that the police ought to have looked into but apparently did not.

The about-turn and the possible, though as yet uncertain, involvement of the police do not do any good for the already seriously undermined confidence of the rakyat in the justice system.

We deserve better.


Tuesday, July 1, 2008

A Matter Of Faith

A Matter Of Faith

More than ever, we need to remind ourselves of the fundamentals. Our fundamentals.

I am a Malaysian. I want my country to be a country in which every citizen has his or her place and has the opportunity to live life in the fullness that each and every one of us deserves.

I want public education, public health, public transport and the public services to be world class and, to that end, I want to see every single sen in every single ringgit I pay in taxes to be used for what it is meant to be used for: creating a secure life for all of us. I want to have competent administrators with vision and I would like to be able to look at an official without having to wonder, even fleetingly, whether he or she is corrupt.

I do not want to wake up angry each morning at the state of Malaysia. Fed to the teeth on a diet of scandal for breakfast, arbitrariness for lunch and abuse of power for dinner, with a whole lot of political intrigue for snacks in between.

Those are my fundamentals. And I think they are also those of many other Malaysians. I would say all Malaysians but I do not think I can fairly include the politicians who lead us.

For them, fundamentals are things like politics, super corridors, mega- projects, race-politics, equity participation and, of course, incidental things like sodomy. These are heady obsessions that take up a lot of time and energy, as does having to tread treacherous political waters.

Which makes me wonder whether these politicians have the time to deal with the more mundane business of governance. Looking at the way things are, it would seem that they do not.

The Government seems to be in a perpetual holding pattern with no real decisions being made. It would seem doing as little as possible and preserving status quo is the best way to ensure political advancement. Ministers routinely fend off demands for results, improvements and reforms with the kind of political double-speak or compromise calculated to buy the time needed to make it someone else’s problem. The continuing decline in standards in schools and public services, the seemingly increasing corruption and crime, and the host of other very sad and painful realities that have become the norm despite the repeated and very loud pleas of civil society is proof enough of the phenomenon that we have come to know as ‘government’.

Everything, for all purposes and intents, is merely a means to a political end.

In fairness, the same could arguably be said, though to a lesser extent, of some of the politicians on the other side; flexing their new muscles, adjusting to the idea of influence and popularity and, of course, the thirst for even more power. It is significant that the opposition landscape has been so dominated by little other than September 16th this year.

All this inescapably points to one conclusion. The buck really does stop with us, the rakyat. The political process is skewed to a political end whose fundamentals are far removed from the realities of our lives. If no one is going to take charge as the situation requires, we have to. At the heart of the Bangsa Malaysia ideal is ownership; we own this country. It is the field we till, reaping what we sow

Which is why, as significant as the events of the weekend involving Anwar Ibrahim may be, we cannot allow them to distract us from the business of getting our lives back in order. There is much for us to do.

We should not be distracted from the fact that despite the promises of judicial reforms, nothing of lasting significance has been done. We are yet to see a bill for the proposed Judicial Appointments Commission or the reinstatement of the pre-1988 Article 121 that underscored judicial independence. It is not even evident whether cabinet supports the initiatives. For Zaid Ibrahim seeming to be a lone voice in the wilderness, one cannot help but think there are those who view these reforms as threatening.

And just as we have yet to see any developments on the recommendations of the Lingam Commission, there has been no further sign of traction on the proposed Anti-Corruption Commission initiative. Corruption is at the heart of the nation’s ills. The inability of the Government to implement an equitable and effective response strategy to manage the hardship caused by increased fuel prices is clear testament of the extent to which this nation has been undermined by corruption. Though an independent anti-corruption body is clearly of crucial importance to the revitalizing of this nation, we have heard precious little since the initial fanfare.

For these and other equally significant reasons, we must remain calm in the face of ongoing events, as destabilizing as they may be. We must keep our eye on the target; an inclusive, equitable and competitive Malaysia.

These are challenging times. Effecting and managing change was never going to be an easy process. Whether we see it through to its end is entirely in our hands. It is a matter that depends on our continued ability to believe in ourselves and in a Malaysia that belongs to all Malaysians.

It is a matter of faith.

(Malay Mail; 1st July 2008)