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Sunday, June 26, 2011

Preemptive intimidation

So, the police have started their campaign of 'preemptive arrests'. There were activists arrested in various towns/cities yesterday, ostensibly for distributing 'inflammatory material'. As many have already commented, the suggestion that material recommending electoral reform is inflammatory is ludicrous. This is more so in light of YB Nazri's recent observations about our sedition laws being outdated.

And if it is incitement that the police are worried about, then there are more stark instances that are deserving of attention.

The police campaign appears to be aimed more at intimidation, apparently on the misconceived basis that this is a legitimate means to preserving public order. It is not, simply because every one has the right to dissent and express such dissent. This is something that the police appear to recognise; demonstrations and marches have been permitted in recent history, more notably when they involve causes that run consistent with the politics of the Government.

When the police want to, they are fully capable of allowing mass gatherings and controlling public order. Just google "Kuala Lumpur road closures". Even as I write this there are hordes of people running past my office. They're not running from anyone or anything, they're involved in a marathon of sorts. Roads have been closed for this event, as HAKAM members trying to get to my office for our AGM have found out to their consternation.

The preemptive police campaign is inflaming a situation that politics has made tense. What started out as a peaceful expression of unhappiness over the electoral process has now become, to paraphrase the Deputy Prime Minister, a threat to national security. He is concerned that the BERSIH Rally will send the wrong signals to the international community, in particular investors. Well, we might ask the Deputy Prime Minister, what sort of signal does mass arrests send?


Saturday, June 25, 2011

Datuk T and the Administration of Justice

The charge was for screening a pornographic video in public. The three 'Datuk T' pleaded guilty. And yet, one of the three declares that his mission had been accomplished. What mission was that? The screening of pornographic videos? Apparently not, it was to have it made public that:
  • the video had been examined by an expert;
  • the expert was 99.99% certain that the man in the video was Anwar Ibrahim; and
  • Anwar Ibrahim is as such not the man he claims to be.
The question is if that was the mission, why not declare it publicly, even prior to their being charged in court? After all, from media reports Defence counsel appears to have been as much in the know as the prosecution. It also appears that prior to being charged, the three knew they were merely going to be fined and were prepared for that eventuality.

This has grave implications, especially when one considers the events that took place in court. In my view, the more important events were:

  • the DPP read out a Statement of Case which delved into matters that were not relevant to the charge. The charge was the screening of a pornographic video. Was it necessary for the prosecution to establish that the man in the video was Anwar Ibrahim, or any other person for that matter? It clearly was not. And yet the DPP thought it appropriate to make assertions pertaining to matters that were not only extrinsic to the charge, they were based on purported evidence that had yet to be tested or determined to be sound. It is not clear whether the alleged expert report was produced to the magistrate. It appears not;
  • the Magistrate permitted the DPP to do what he did without appearing to have thought it appropriate to direct the DPP to limit himself to the case. In doing so, the Magistrate had, albeit perhaps unwittingly, permitted a judicial process to be employed in a means it was not meant to. If there were reasons behind the extraordinary measures taken in court, then the magistrate may have, albeit perhaps unwittingly, permitted the administration of justice to be exploited to that end.
Much disappointment has been expressed at the way in which matters unfolded in court. This has been misconstrued by some as unhappiness at the fact of Anwar Ibrahim's alleged foibles having been exposed. Criticism of the events have been represented by these quarters as attempts to subvert the truth about Anwar Ibrahim.

But that is the point. The proceedings in court were not about Anwar Ibrahim. They were about Datuk T having committed criminal offences. The events of yesterday must be looked into by the Judiciary and the Attorney General's Chambers.


Monday, June 20, 2011

A matter of dignity

A matter of dignity

Everyone has his or her idea of what a perfect world is. Some might say that society should be less regulated and more space given for personal freedoms. Others might argue in favour of more regulation and control. Some might expound a more racialist perspective while others may be happy with just a modicum of fairness.

Whatever the case, the realities of a societal existence compel us to find middle ground, a state of being where one has as much freedom to be human and to do all things vital to dignified existence as such while respecting the next person’s right to do the same. This calls for compromise on the part of everyone who chooses to co-exist in a given society. This compromise necessitates relinquishing the right to ‘self-help’ to those tasked with administering that society.

In Malaysia, that compact is entrenched as an essential feature of Malaysian existence by Constitutional guarantees of fundamental liberties.

Though the administering of a society would necessarily involve some measure of regulation, the power of the state to regulate is not an absolute one. Its responsibility to do so is to be balanced against its responsibility to protect those freedoms that define that society. Any intervention by the state, and the character of such intervention, is to be determined by reference to both these considerations.

There is however an unfortunate tendency on the part of our government to focus only on the need to protect public order. This often obscures the equally important responsibility of the government to protect the dignity of its citizens. The question that is more often than not overlooked is what is it that gives us dignity.

The right to express, either as individuals or as a collective, is a crucial element in what it is that defines us as who we are. In most cases, the power to express ourselves is really all that those of us without access to the corridors of power have. Individuals may be stripped of their belongings and status, they may be constrained in a number of ways, but they do not stop being human as long as they have the ability to express who it is that they are to the world around them. The HINDRAF rally of 2007 illustrates that point clearly.

For some, the need to express may be satisfied by their choice of the colour or design of their car, or outfit. For others, the need may be greater. They may wish to say that they are not happy with the state of government or that they are frustrated at the lack of response from agencies charged with administering elections. As much as some may disagree with their view, it is not for anyone to say that they have no right to think or feel what it is they are feeling.

In the case of those seeking reform, their right to speak up is reinforced by the fact that Malaysia is a democracy. We elect our governments. For them to have the continued confidence of the rakyat, the integrity of the process by which they have been elected must be seen as being unimpeachable.

That does not appear to be case though. Going by what BERSIH 2.0 is saying, a significant number of Malaysians believe that the process cannot be seen as being unimpeachable. This is not just about whether there is electoral corruption or whether there has been ballot stuffing, it goes deeper into the question of whether the system of elections as it is allows us to achieve the aim underlying general elections. Issues have been raised about re-delineation exercises, campaign periods, equal access to mainstream media by all political parties, amongst others. These are undoubtedly significant features of the process that all Malaysians ought be concerned with.

BERSIH says that it has attempted to raise these matters with the relevant agencies but thus far its efforts have not got it anywhere and no resolution has been achieved. For this reason, BERSIH says it needs to express itself as a last resort through a rally. Judging by the studied silence or avoidance of those charged with responsibility over elections, it appears to be all that BERSIH, and Malaysians who support its cause, can do.

In any modern nation state describing itself as one established on the Rule of Law, there would be no difficulty. BERSIH organizers would be told that they would have to march along a particular route, with a sufficient number of wardens at a particular time. The police would go to great lengths to ensure that those marching in the rally would be safe and would be able to go about their business uninterrupted.

And if there were a group of individuals opposed to the BERSIH rally, and wished to march in protest, then the police would direct them to march along a different route.

Our government however opposes it and says that the need to preserve public order is more a priority than allowing Malaysians to express themselves on the subject. With impunity PERKASA puts a spin on the matter and asserts that its supporters are happy with the way things are and will endeavour to thwart the BERSIH rally with a counter-rally.

The police are weighing in as well, giving notice of preemptive arrests in the face of no permit having been issued for the proposed rally. The posturing makes it clear that no permit would be issued in any event.

In conducting themselves as they do, the government and the police have sent a strong signal to Malaysians that they do not consider the right to express themselves on the subject as being of any importance. In doing so, they have effectively told Malaysians who support the cause that their dignity is of no relevance. That they should just stomach the system as it is.

Is there really any cause for wonder at the fact that Malaysians increasingly seem more inclined to take to the streets?

(An edited version of this article appears in my 'Rule of Law' column in The Edge this week)