A matter of law, not policy

It looks fairly certain that the decision of the Court of Appeal on the use of the word “Allah” in the Malay version of the newsletter of the Catholic Church, Herald, will be appealed to the Federal Court. It is improbable that the apex court will deny permission to appeal, considering the obvious constitutional implications of the matter.

It is obvious that the Federal Court will have much to consider. Amongst the criticism leveled against the Court of Appeal is the suggestion that the Court had made a policy decision, as opposed to a legal one. Considering the reasons advanced by the judges concerned for their decision, there is substance to this complaint. 

The Court of Appeal was required merely to determine whether the High Court judge had arrived at a decision that was consistent with the relevant legal principles. That decision related to only one question; whether the Home Affairs Minister had exercised his powers in a manner that was justified in law in imposing the condition that the word “Allah” was not to be used in the publication. And while the Court of Appeal would have been right to interpret such law as it was required to for the purpose of deciding whether the High Court judge had erred, it ought not have gone so far as to effectively develop a legal framework for the protection of Islam. 

Settled principles of law dictate that the courts are not to substitute the decisions of administrators with those of the courts. All that the courts can do in affording judicial review is to consider whether the administrator concerned, in this instance the Minister, had adopted the correct decision making process, and whether the administrative decision challenged was reasonable having regard to the circumstances as they stood at the time the administrative decision was made. These legal constraints were in fact recognised by the judges of the Court of Appeal who discussed them in their respective judgments.

In this context, all that the Court of Appeal ought have done was to enquire into the reasons advanced by the High Court to quash the decision of the Minister. These reasons ultimately centered on one primary conclusion; that the Minister had no reasonable basis on which he could objectively conclude that the use of the word “Allah” in the Herald would be a threat to public order.

A review of this conclusion by the Court of Appeal would have entailed an objective consideration of the basis of the Minister’s decision, that is the factual considerations that the Minister took into account at the time he made the decision, with a view to determining whether his decision was one that any reasonable person in the Minister’s shoes would have made. For this purpose, negative reactions on the part of the public to the decision of the High Court were not relevant, it being a matter of established principle that the popularity of a decision of the courts is not the yardstick by which the correctness of that decision is to be measured. Were it otherwise, many a litigant would arrange for public controversy in order to gain a foothold in the appellate courts.

It must be appreciated that at the most fundamental level, the complaint of the Catholic Church was that the condition impacted on the right of the Church, and the members of its congregation, to express themselves fully. And while it is tempting to characterise disputes of such a nature as concerning the freedom of religion, this was really a case about the freedom of expression. From a constitutional standpoint, it is established principle that all Malaysians have the right to say what it is they want save where their right to do so has been limited by law on grounds of national security and public order. Such law must however be reasonable, and the restraint on expression limited to only what is essential to achieve the aim of the law. These constraints apply equally to any administrative action sanctioned by law.

It is telling that the current Deputy Home Minister has sought to justify the decision of the Court of Appeal by limiting it to publications by the Herald. And while the Deputy Home Minister may have a point, the case concerns only the permit to publish the Herald and nothing else, the assertion that the word “Allah” can still be used in Malay language bibles in East Malaysia wholly undermines the position taken by the then Home Minister that the use of the word by the Herald would result in public disorder. The Church has after all accepted that the Herald can only be circulated to the Church’s congregation.

Seen in this light, there was no necessity for the Court of Appeal to enquire into, and conclude on, what was integral to the Christian faith. It is not for the courts to define what is and what is not essential in any faith and I can see no reason for any superior court in this country to ever take such an extraordinary step. Not only is such a course wholly inconsistent with the various dimensions of the constitutionally guaranteed freedom of religion, it is unnececessary. 

Any concerns about the intersection of the free practice of religion and public order are addressed by the constitution itself. The freedom of religion is expressed in a manner that permits the legislature, and consequently the State, to encroach where required to by the dictates of public order. It is unnecessary for the courts to determine whether a particular practice is essential to a particular faith, or not, in such cases as the constitution focuses attention on solely the maintenance of public order. The courts are as such only required to consider whether a particular course of conduct on the part of the administration is justified by reference to the public order concerns asserted.

Even in those limited cases where a court is called upon to determine a question of fact that relates to the practice of religion, and in my experience this occurs exclusively in the Islamic sphere as, unlike the other religions of this country, the Islamic faith is regulated by law, the Courts only go so far as interpreting codified law, often with the assistance of experts.  For instance, in two matters that came before the Federal Court several years ago, it was contended that the legislature of the states of Terengganu and Selangor had acted without power in creating certain offences. The Federal Court availed itself of the views of experts in order to determine what the phrase “precepts of Islam” in the constitution meant. Similarly, in the early 1990s the Penang High Court took into consideration a fatwa in determining whether a person had died a Muslim.

It is unfortunate that the Court of Appeal felt it necessary to go as far as it did. Respectfully, the court appears to have substituted its own decision for that of the Minister, albeit to the same end. This was unfortunate, not least because the decision has fueled fears concerning efforts to establish the primacy of Islam in the public sphere and the implications this has. It has also overshadowed the emphatic declaration by the Supreme Court in 1988 that the public law of this country is secular.

Stripped of political implications, the case is one that is easily determined. It was made controversial by certain quarters for their own purposes. Regrettably, in failing to recognise the controversy for what it was, the Court of Appeal may have inadvertently laid the ground for the further machinations of those who would divide this nation.

It is my sincere hope that the Federal Court will appreciate that the case was only ever about whether the “Allah” condition was warranted, reasonable and accorded with the constitutional guarantee of free expression. Whatever the decision the court ultimately arrives on this narrow issue, it is imperative for the court to deal with the highly divisive policy dictates of the decision of the Court of Appeal. It can do so by underscoring that religion is a personal matter and theological debates cannot, and must never, be brought into the courts. 

MIS

(First published in The Edge on 19.10.2013)

And so it has come to this

Another merdeka day has come, and with it an opportunity to consider where it is that we are at.

Current affairs points to it having come to this; ideologues, of the totalitarian kind, saying things of very little value or sense in as loud as manner as possible, content in the knowledge that in Malaysia those who bray as brashly as possible and for the longest time usually win the day. And the reality is that very few are capable of doing that and, were they to try, would fail at the outset. For them (meaning most of us in this sadly undermined nation that has been held to ransom by its politics), some things are just too ridiculous to say.

Not for those who hold sway over the airwaves and the media it would seem. For them, it is perfectly normal to act as if the laws of this country, in particular the Federal Constitution, do not apply any more, except when convenient to them.

For them it does not appear to matter that the supreme law we were entrusted with in 1957 guarantees us a representative democracy in which a very clear line is drawn between the government of the day and the nation we live in. In this land, which belongs equally to all of us, we are allowed to express dissent or dissatisfaction with our elected government without that amounting to a lack of patriotism. We are allowed to say, if we think so, that those who claim to lead us are fools who do not have their minds wrapped around the issues that so fundamentally affect us in a way that circumstances required, be they shootings by the police, or the potential economic meltdown that appears to be staring at us over the horizon.

For them, nation and elected government are one and the same. Criticism of one is the other. Hence, we are facing the possibility of having to compulsorily fly flags and stand up when the national anthem is played in cinemas. All in the name of a misguided notion of what exactly I am not sure. As I see it, no one has expressed any disloyalty to the nation, in as much as many are critical of the government of the day.

The nuances are however obscured. Legitimate criticism is labeled sedition, even as those who label say some of the most scandalous things imaginable. Questions are taken as threats. Mistakes are treated as if they are declarations of war. To these quarters, the nation is under serious threat, under siege in the most terrifying way; we are about to explode, disintegrate, and be annihilated. If they are to be believed, the sky is about to fall on our heads.

For them, those who do not like the way the Government is doing things and say so undermine the stability of this nation and, to borrow an expression, should leave the country. Otherwise, they should be deprived of their citizenship. This, they suggest, is to stop any further undermining of the nation.

This seems to me to be a ridiculous state of affairs, one calling for intervention on the part of the Executive or the agencies of state.  The only thing that appears under siege, and I say this with the greatest respect to the freedom of those concerned to say what they think (and in the belief that the rest of us are equally entitled to say what it is we feel), is the seeming fragile personalities of these ideologues. So overwhelmed are they by the shifting sands of the Malaysian socio-political landscape that they have been taxed into a state of intellectual paralysis.

Islam is not, and could never be, under siege. It is the religion of the majority of the citizens on this country. It has been given legal status in a way the other major (or minor) religions of this country have not. Its administration is effected through a bureaucratic apparatus that, I think, is unrivalled anywhere else in the world.

The Malays, howsoever one defines the term (this is a vexed question that comes up from time to time), constitutionally or anthropologically, are not under siege. They form the majority of this nation. Their status has been recognised by several constitutional provisions, one of which provides a pathway to affirmative action. 

Malaysia is not under siege, except perhaps by those who insist on thrusting their perverse views of what it is they aspire to without regard to the sensitivities of others (those from all backgrounds) or the established legal framework. We are at peace with our neighbours, and no sovereign nation is threatening to invade us. We have a defense budget that ensures that we have the means to protect ourselves and we have friends who will come to our aid if need be.

Yet, despite this obvious state of affairs, the Executive has worryingly chosen to avoid involving itself. It has not sought to curtail, either by open dialogue with these ideologues or otherwise, this alarming trend. Further, from a third party perspective it seems like the agencies and institutions of state do not seem to be too concerned either. They appear to be relatively content with this alarming state of affairs, for them it is business as usual. The implications are of grave concern, some quarters may well believe that these ideologues may be justified in what they are saying or doing.  This will undoubtedly resulted in an undermining, some might say further undermining, of the system.

It will also serve to distract us from the real threat to this society, a lack of competitiveness that is the product of a administrative framework that has been tolerant, even accepting, of corruption, and that has been shaped not so much by reference to merit but rather a mélange of cronyism, racial preferences and politics.  Entrenched in this is a public service organization, and this includes the education system, that is struggling to remain relevant in the globalised world.  This lack of competitiveness has been the subject of recent discussion amongst a range of persons regionally who have an interest in this nation and its continued well-being.

Curiously, this is not something that the ideologues feel too concerned about. 

So, where does that leave us this merdeka? With much to think about, I feel. The, any, government of the day must start asking some very difficult questions, and look beyond its political self-interest. I would be surprised if it was not already doing so. The nation is floundering and is in desperate need of statesmanship. Parochial perspectives that ignore the fundamentals of this nation are, and will continue, to do much damage. The incumbent government must step up and start acting responsibly as a government of all the peoples of Malaysia.

And it can start by explaining to us, not with slogans or fancy advertisements but with concrete and decisive action, why it is that Malaysians have before them the endless possibilities that it seems to think we have before us.

MIS

(This comment was first published in The Edge on 2nd September 2013)

Of confrontation and reconciliation

And so the General Election has come and gone and the Barisan Nasional has been returned to power at the Federal level with a reduced majority.  Concerns that the election process were unfair from the systemic standpoint brought into focus by the Coalition on Free and Fair Elections (Bersih), and would become even more so during on election day, have spiraled into unequivocal assertions of wholesale electoral fraud. The extent of the matter is such that even the international press has felt obliged to air concerns on the part of some quarters that the elections were hijacked. 

The Pakatan Rakyat thinks so, as do a sizeable number of Malaysians, enough for several rallies on the subject to have been more than convincingly attended by Malaysians. The anger and disappointment being expressed goes beyond the normal frustrations of a voter whose candidate was not returned; it would be foolish to characterize it as such. It cannot be overlooked that, as rhetorical as it may seem, some have denied the legitimacy of the current government.

Much of this anger is directed at the Election Commission whose duty it is to ensure that all election officers shall act with fairness, impartiality and in compliance with the Federal Constitution. Some have asked for the Election Commission to resign. Lim Kit Siang, whose DAP has the second largest block of parliamentarians, has called for a bipartisan parliamentary committee to be put in place to recommend a replacement Election Commission.

No matter how one looks at it, it is manifest that the purity of the electoral process in the 13th General Election is severely under question. It requires more of a response from the Government that the sweeping dismissiveness we have seen thus far. Bersih, to public acclaim, has initiated the establishing of a “People’s Tribunal”. Rather than rejecting as the whimsy of a group of un-subservient non-governmental organisations - and it is prudent here to note that Tun Mahathir initiated a similar tribunal on war crimes not too long ago on the basis that the criminals, as he saw them, would not be brought to justice by a system they were very much a part of – the Government should view the idea as one that it should support. 

For one, it is in line with the national reconciliation that the Prime Minister promised on election night.  More fundamentally, the Government should support the idea – perhaps by advising the Yang di-Pertuan Agong to establish a Royal Commission on the matter – for it being a means to allow the truth to emerge, and to that end, a conduit by which the frustrations of a sizeable section of the community can be channeled. 

It would not be sufficient to point to the courts, as some have done, as a means of addressing the matter of electoral fraud. For one, in as much as the Chief Justice may be trying to rebuild public confidence in the Judiciary there is still some way to go on that journey. There are still traces of the suborning of the institution by the Mahathir Administration, not least the amendment to vital provisions of the Constitution, as is the lingering perception that the courts may not be as cut off from the Executive as they should be. It is of no value to say, as one UMNO parliamentarian did recently, that Anwar Ibrahim or other members of the opposition seem to have no problems with the courts in light of his utilizing the judicial process to gain redress for defamation.  That is a facile point of view that does not do justice to the complexities of the subject of judicial independence.

For another, in the minds of many, the perceived electoral fraud appears to have been coordinated and to that end had a systemic nature to it. Many point to the revelations that have sprung from the on-going Royal Commission on Project IC to underscore their concerns that foreigners voted in the elections. If true, this necessarily involved state actors who may have well abused powers in doing what they did. This is a matter that the Election courts may not be in a position to address as fully as the situation warrants.

The Election courts are creatures of statute. They are limited in the scope of their scrutiny. In part this is due to a restrictive approach that the apex court has over time laid down. This requires such courts to act strictly by reference to the legislation that circumscribes such courts, rather than the underlying purpose of the law. As such, though the courts recognize the need for due emphasis to be given to the overriding principles of democracy, and the need to protect the purity of the election process, they are often times left powerless to deal with what might reasonably be perceived as electoral impropriety by an unduly strict interpretation of the legislation imposed on them by the apex court. 

This approach has left lawyers and petitioner having to navigate through a minefield of procedural obstacles that have ultimately drastically reduced the number of, otherwise potentially, successful challenges. The strictness of this approach has, in my respectful opinion, undermined the right of the voter to a free and fair election and the associated right of meaningful access to justice. As was observed by Justice David Wong Dak Wah, now Judge of the Court of Appeal, in 2008:

“In my view if a 'strict observance' approach is adopted by the courts, those rights will definitely be diluted. Take the case of the right of access to justice. If a 'strict observance approach' is adopted, no citizen will be able to act for himself or herself to file an election petition because surely as night follows day the petition would be knocked out by preliminary objections. Further if the respondents' contention is sustained, the petitioner will have to go through the relevant provisions of the Election Act, Election Offences Act or Election (Conduct of Elections) Regulations 1981 with a fine tooth comb and put the relevant provision in the petition. That would be a task which a petitioner will not be able to fulfill. I say that for the simple reason that day in day out in our courts, judges, Sessions Court Judges or Magistrates have seen it fit to amend charges in criminal cases when they held that the charge had been wrongly framed by the prosecution. In those criminal cases, the charges are drafted by qualified lawyers and yet they had been found to be wrong. So in election cases, what chance does a person who wants to file an election petition himself or herself have? My answer would be next to none and that would in my view make the constitutional right of access of justice an illusionary one. The remedies of law should be accessible to the ordinary people and laws should not be interpreted in such a manner that only rocket scientist can access remedies in the law as that cannot ever be the intention of Parliament.” 

Having regard to the nature of the complaints made public thus far, challenges would in effect require the mounting of cases of either corrupt practice or electoral offences. This would require the petitioners to state from the outset, with great specificity akin to the framing of a criminal charge, the exact wrongful act done, the time and place of the wrongdoing, and the persons involved. The nature of things may impede that process. 

Some may recall that Zaid Ibrahim’s election petition in respect of the by-election for the Hulu Selangor parliamentary constituency put in issue amongst other things, Najib Razak’s promise at a rally that the Government would donate RM3 million to a school in the constituency if the Barisan Nasional candidate were returned. Though the promise was a matter of public record and the subject of intense national discussion, the petition was struck out as Zaid Ibrahim had not pleaded in the petition itself the identity of persons in the hall at the time the promise was made. Zaid had the information and was ready to subpoena the persons concerned at trial, but never made it that far. His well-intentioned desire to protect the individuals cost him the opportunity.

This is not to say that the aggrieved should avoid the courts. They must seek recourse and present their respective cases as best as they can. I doubt however that the court actions will in themselves serve to assuage the discontented amongst us.

It would equally be irresponsible for the Government to continue to allow attempts to divert attention from the problem by means of racist and extremist rhetoric. This is going to do great damage to the nation, and deepen fissures that highly divisive policies, and an extremely racialist election campaign that the Barisan Nasional unashamedly took credit for, have created. It is truly a sad state of affairs that Malaysians in this time and age are being subjected to this kind of venom. And it says much about the Barisan Nasional government that Malaysia remains one of the very small group of countries that have yet to ratify the 1966 International Convention on the Elimination of All Forms of Racial Discrimination. 

In the same vein, it would be foolhardy for the Government to resort to strong-arm tactics involving the suppression of peaceable assembly and expression. This would only serve to inflame the situation.

The way forward for the Government on this issue is self-evident. It needs to confront the subject and deal with it in a transparent and accountable manner. This obvious truth makes it equally plain that Najib Razak may have no choice in the matter.

MIS

(This comment first appeared in my 'Rule of Law' column in The Edge on 18.05.2013)

Resolving doubts about GE13

It is apparent that a sizeable enough number of Malaysians harbour doubts about the validity of the declared outcome of the 13th General Election in light of numerous complaints of electoral fraud. Given the possibility of fraud having occurred, possibly on a large scale, it is simply not open to Malaysians to accept the analysis of results now offered to them by reference to voter sentiment. This is more so for the fact that the popular vote was in favour of the Pakatan.

In this context BERSIH’s intended Peoples’ Tribunal is a welcome suggestion. It will allow Malaysians an opportunity to present proof of electoral fraud, such as there is, and look to answering the question of whether the polls were hijacked, and if so, by whom. I look forward to hearing more details of the proposed initiative. Such evidence that may come to light would then provide foundation for further initiatives.

The National Human Rights Commission (SUHAKAM) should facilitate the enquiry. Vested with statutory powers, it is empowered to do so in a way that BERSIH is not. It would be useful for persons with proof of fraud to lodge complaints directly with SUHAKAM.

I hope the Barisan Nasional Government of the day, and the institutions of the State will view this process as necessary, not least for the fact that it will allow those Malaysians who feel aggrieved, rightly or wrongly, to channel their frustrations in a constructive manner. To that end, they should look to facilitating the enquiry as well.

MIS

We, the people

And so the General Election is finally here. 5^th May 2013, a date some are calling, to borrow a phrase from Nehru, our tryst with destiny, and yet others, our day of reckoning. There is no doubt that there is electricity in the air as Malaysians wait out these final days for the General Election that seemed to have taken forever to materialise. This election, it would seem, represents a true opportunity for something.

For many, the decision of who to vote for, one way or the other, was made the day the 12^th general election results were announced on that fateful day in March 2008. Others though, made less certain by the events since then, have an important decision to make. It is perhaps to this constituency that I offer my comments.

I wrote in February (“A heartfelt choice”) of the three primary issues, as I see them, that ought to determine our electoral choices: the rule of law, corruption, and social inclusiveness. I stand by that determination and reiterate that if we are truly concerned about the future of our young, then our choices must be made on the basis that any government we vote in ought have at the forefront of their policy framework measures that address these subjects.

It appears however that these concerns, as fundamental as they are to some of us, do not seem to resonate as strongly with others. Political loyalties, vested interests, fear, amongst other things, are obscuring the implications of our circumstance. They ask whether there is anything wrong with the way things are. After all, it is suggested, Malaysia has done fairly well for itself all things considered. It is no coincidence that the Barisan Nasional campaign is aimed at reminding voters of this as well as warning them of the implications of change. The unsubtle message that is screamed from billboards and advertisement in the mainstream media, leave no room for doubt as to the point the Barisan Nasional makes.

I think Malaysians need to remember that we have a harmonious society because we are a harmonious people. We have stability in spite of, and not because, of our political leaders. Even the most cursory look at the events of the last three decades would reveal a campaign of divide and rule on the part of those leaders, one intent on reminding us of, and playing up to, our differences. No matter how one dresses it up, the politics of race and religion is devastatingly divisive. And yet, we have managed to live together in peace, weathering potential points of crisis that were contrived to render the goodwill that continuous coexistence over generations nurtured. This is not only a point of pride; it is a deep source of confidence and inspiration. We are a resilient people and we must not forget that.

I appreciate that this in itself is not enough to convince those who harbour doubts about embracing the uncertain. It is however a good point to start any consideration of what it is we should be doing when we stand before the ballot box. It also sets the context for the choice that we have to make.

It is not a choice, as some might have you believe, between Najib Razak and Anwar Ibrahim, or even between the Barisan Nasional and Pakatan Rakyat. It is rather a choice that is far more fundamental, one between leaving the way things are now and doing things a different way. This is where the question of what is wrong with the way things are now comes up.

I could attempt to answer this by pointing to all those things that I think are deeply problematic once more. Allow me however to adopt a different approach by asking instead whether we could be doing things differently in a way that would allow us, the nation, to achieve what our potential truly enables us to.

In a recent article for Bloomberg, William Pesek argued “Malaysia needs to more to get off the road to mediocrity”.  In explaining his position, Pesek very credibly argued that the nation’s biggest problem is complacency and that in being change resistant, the government has allowed “nations as diverse as China, Indonesia, the Philippines, Thailand and Vietnam to leapfrog us” to a point where Malaysia is now competing with them for “the same infrastructure dollars, factory projects, bond deals and stock issues.” Singapore, has in the meanwhile, he further asserts, “become the beneficiary of many of Malaysia’s best and brightest, who have emigrated in search of a more merit-based economy.”

It is difficult to credibly argue against this. Just as it is to argue against the obvious need on our part to introduce “reforms that will revitalise the system as a whole”.

Cynics might sneer at this as being wildly theoretical or, alternatively, point to the reforms that the Government has promised us. The problem with the reform-speak of the Government thus far is that it has remained as not much more than rhetoric. True reform would mean, amongst other things, dismantling the construct that the Barisan Nasional depends on for its own vested interests. Pesek insightfully describes the difficulty that the coalition faces as Najib Razak having to navigate

“a 13-party coalition whose interests are as entrenched as any in the world. His partners are pushing back quite assertively, afraid of losing the Malay vote they could once take for granted.”

It is no surprise therefore that Ibrahim Ali has been permitted to contest as a candidate in Pasir Mas over the Barisan Nasional candidate assigned to constituency and Zulkifli Nordin is now mysteriously championing the cause of Indians in Shah Alam. Perkasa is the kind of right-wing vehicle that some of Najib Razak’s partners prefer notwithstanding it being the antithesis of “1 Malaysia”.

True reform is not about to happen as along as the Barisan Nasional remains the way it is. In the aftermath of the 2008 General Election, there were rumblings from within that change was needed. Some five years later, the changes have largely been cosmetic. So much so that I think it is reasonable to conclude that the Barisan Nasional will not reform itself unless it is forced to. What Pesek suggests cannot be dismissed as the ramblings of a foreigner who knows nothing about the country. He has put in words what many of us think but are reluctant to say.

The truth is that our economy is not as vibrant as we have been led to believe. A raft of laws designed to keep critical information away from us has left us dangerously ignorant of the true economic status of the nation. From what is visible to us, the outlook is gloomy. We should remind ourselves that Idris Jala, Minister in the Prime Minister’s Department said in 2010 that unless we rein in borrowings and subsidies, we could be facing bankruptcy by 2019, our trajectory reflecting that of Greece. Instead of reigning in spending and subsidies, we have experienced spending and subsidising in the intervening period on an unprecedented scale. Money, it would seem, is going out of fashion in Malaysia. So much so that the Government is literally giving it away.

Add to that endemic corruption and one is left to wonder whether Malaysians are ever going to have another opportunity to try to bring us back from the brink.

I am not saying that the Pakatan Rakyat is the answer to all our problems. It too is saddled with its own difficulties and deficiencies. The premise of its campaign however points to systemic reform of a kind that indicates a potential start to the gargantuan task of righting the ship of state. Amongst them is a promise that the rule of law will be reinstated.

If nothing more, this offers a new way of looking at things and offers a more certain way to remove the Pakatan Rakyat from government when the time comes. And at the very least that offers us a chance at establishing the more conventional system of government that the founders of the Constitution envisaged and ridding ourselves of autocracy.

I think that is a choice worth making.

MIS

(This comment was first published in The Edge, 27.04.2013 as "A choice worth making") 

A heartfelt choice

Going by the talk about town, this may be my last column before the next General Election. It may therefore be opportune to consider what this General Election means to some, if not all, of us.

I thin it is safe to say that many of us are tired of how politicking appears to have become the raison d’etre of government. It appears to me that somewhere along the way, the politicians lost sight of the truth that no matter what the politics of the situation were, the end objective had always intended to be the due governance of the nation, be it in accordance with one set of policies or the other. And once they lost sight of that truth, it seems that it was simply put of their minds; political brinksmanship became the cause in itself.

I believe that this was more evident in the period since the last General Election, and that this was partly due to the fact that for the first time in a very long while, there was a credible opposition that, to the extent that they were capable of, presented a different perspective on how things are and where things might be headed. The incumbent parties have had to increasingly address policies, issues and practices that have come to be questioned by voters. This was a radical shift from a political landscape defined exclusively by the incumbents.

Simply put, the world is no longer as the Barisan Nasional says it is; as the Prime Minister unfortunately found out during the Barisan Nasional Open House in Penang, a growing number of Malaysians now see a world beyond that construct.  Fundamentally, they want to live in a society grounded in social justice and one in which they believe that their interests are being looked out for. 

An objective consideration of the state of the country would give any reasonable voter basis for a belief that that is not currently the case. The standard of public services is questionable, be it in healthcare or education. The cost of living has increased in a way that is not commensurate with the earning potential of many Malaysians. Corruption appears to be unbridled. Public institutions do not enjoy the confidence of the people in a way they did two decades ago.  As scandal after scandal is left without response or reaction by the relevant authorities, the Rule of Law appears to be nothing more than a catchphrase employed to rally a flagging crowd. 

And worryingly, the incumbent government continues to be dismissive about these legitimate concerns, characterising them as misperceptions brought about by parties intent on undermining the government. So much so that the incumbents are growingly being described as having lost the plot.

This then is the context in which the voter sits as he or she grapples with the question of how it is they are to achieve the society they aspire to. Some are worried about change and its implications. This is understandable; change is never an easy thing, sometimes requiring us to embrace uncertainty. Others are more gung-ho, perhaps having less to lose or firmly believing that there is no other solution.

Whatever the case though, I believe that there are critical issues that confront this society in a way that requires an urgent response, issues that serve as indicators marking the way forward if we recognise that every single ballot cast is a means to our desired end. The primary issues, as I see them, can be summarised as follows.

Firstly, the Rule of Law.  This is not just about the courts and lawyers. It is a far wider concept that embraces the principle that the Government and its agencies are accountable to the people. It equally embraces the principle that no one is above the law. It calls for immediate action to restore the credibility of the Judiciary, the Attorney General’s Chambers, the Royal Malaysian Police and the Malaysian Anti-Corruption Commission, amongst others. It equally calls for a repeal of all laws that do not serve, or even impede, the cause of democracy.

Secondly, corruption. Unaddressed corruption is bleeding this country in a way that is harming it drastically. The fight against corruption must be focused on not only punishing perpetrators but also in sealing the fissures that allow for it. It calls for transparency and accountability that is premised on a freedom to, and of, information. The government of this country cannot be permitted to administer it by stealth.

Thirdly, social inclusiveness. Divisive policies, in particular the politics of race and religion, must be dismantled and replaced with policies that give the interests of every single Malaysian due regard.  Every one of us must be brought into the protective embrace of the State. 

The problems underlying these issues have festered for a while and are now threatening to overwhelm us. The incumbents have in the recent past attempted to assure us that they are being addressed, that more time is needed. The challengers tell us that they will address the same if given a chance. I appreciate that talk is cheap, and that it is nearly impossible to find a politician that is not willing to overstate or understate a point to gain an advantage. The situation however calls for an evaluation, to the extent that that is possible. 

More fundamentally, it calls for self-respect. It is indisputable that the state of affairs is highly unsatisfactory and requires action. Reforms are sorely needed, not just for us, but also for the generations that follow. The way forward lies in what our heart tells us is going to allow us to protect those generations.

MIS

(This comment was first published in The Edge on 16.0.2013)

The human dimension

I have said before that the push for efficiency within the courts is something to be lauded. I have at the same time argued that administrative changes introduced to reduce the backlog of cases in the superior courts should not come at the price of the quality of justice. Numerous comments by lawyers at the recent Annual General Meeting of the Malaysian Bar about the litigation experience, none of them complimentary, have prompted me to revisit the subject.

Before turning to what I consider to be the possible reasons for what we are facing in the courts, I wish to underscore a fundamental aspect of the subject that seemingly has been lost in the tumult of reform. The Judiciary is there to mete out justice to parties who turn to it in search of the same. Though it seems to be an obvious point, the need to do justice is pivotal to the resolution of disputes. It is not enough for courts to adjudicate if one party goes away feeling that justice has not been served, a state of mind that one cannot brush away as the feelings of a disgruntled client.

Litigants go to court expecting that due consideration be given to the facts of the case, the points of argument made by counsel for the parties, the relevant legal principle and the competing interests of the parties. 

These are fair expectation on their part. Unlike those of us who are directly involved in the legal profession, either as lawyers or judges, and as such are exposed on a daily basis to the process as we move from one case to the next, the litigant is someone who has been forced into the process by circumstance. He is not there by choice, there are those who have not in their lifetimes needed to go to a court for a judicial determination, and his involvement engenders an experience that is altogether different from that experienced by lawyers and judges. The litigant is personally, and is therefore emotionally, invested in his case. 

Having said that, in my experience a losing litigant does not necessarily walk away feeling resentful if he feels he has been given a fair hearing. It is his experience of the process that defines this outcome. It is for this reason that one of the legal maxims that has come to most characterise the judicial process is “justice must not only be done, it must be seen to be done.”

Judging by the comments at the Bar meeting, a number of judges seem to have forgotten this in their rush to complete their caseloads. The complaints ranged from judicial temperament, with lawyers lamenting the fact that judges were acting injudiciously, to judges not having spent enough time with their files to fully appreciate the nature of the matters before them or the issues in contention, to judges not affording counsel the opportunity to present their cases to the fullest. Underscoring this were comments that pertained to the competency, or lack thereof, of some of the judges.

The question of competency is a critical one. There is no point of litigants resolving their disputes before adjudicators who are not truly qualified to do what that task requires. Incompetent judges will not only commit injustice, they will undermine public confidence in the Judiciary as a whole even as they create dangerous precedents that will impact across society. As I have said before, it is incumbent upon the Chief Justice to determine the means by which he can audit his judges.

That aside, and more pertinent to the point I wish to make, the question of how judges treat litigants, and their counsel, is one that directly relates to their respective litigation experiences. And it has struck me that somewhere along the way the process appears to have veered off course. In the rush to decide cases, it sometimes feels that the expectations of the litigant no longer matter.

This is where the matter of caseloads and efficiency comes up. Judges are under tremendous pressure to dispose of cases. The statistics are impressive and basis for pride. They however raise the question of how it is that judges, in particular those in the Court of Appeal, can dispose as many appeals as they do. The number of disposals is high and sitting in court waiting for my cases to be called up has given me an insight into how hard our judges have to work. It however has given reason to ponder how it is they manage to dispose of as many cases as they do.

Appeals arise from either interlocutory decisions of the High Court, that is decisions made on applications to the court prior to the final determination of the case, or from final determinations. The former category of decisions is easier to deal with as they do not finally determine the case and are fairly standard. Decisions in the latter category are an entirely different thing. They are made after a full trial during which the judge would have heard and seen witnesses after which the judge would have been addressed on the law and the facts as they appeared to either side.  In most cases, the trial judge would have prepared written grounds of judgment in which an explanation of how it is that judge arrived at the ultimately conclusion is laid out. Appeal courts, guided by counsel as they are, have to scrutinise the record of proceedings to determine whether there is an error that warrants intervention on the part of the appellate court. 

This is not an easy course of action. The appeal court is not entitled to substitute its own views of the trial judge as the trial judge had the advantage of hearing testimony and, through that, getting a direct feel of the case. The appeal judges on the other hand view the proceedings remotely, through what it is that is in the record of the case, including the trial transcript. 

For this reason, over hundreds of years, the appellate process has been refined to a framework of carefully thought out principles of appellate practice. These principles ensure that the system is not up-ended and that the appeals court only interfere where there is just cause to do so and in a manner consistent with the interests of justice. The application of these principles in any given appeal is a matter that takes time. It is not for purely academic reason that another legal maxim, “justice rushed is justice denied”, came into being.

I have been in the Court of Appeal on days where a particular panel is determining a sizeable number of appeals after full trial in addition to the other appeals or applications before the court. And this is to be done within the limited period spanning from 9 am to 4.30 pm. And while the lawyers and litigants may go home to celebrate or commiserate, the judges go back to the case list they have to deal with the following day.

It is thus not surprising that, going by the comments noted above, judges are not able to read their files as thoroughly as they would wish to or lose their patience with counsel or rush counsel during their arguments. Equally, it is not surprising that some judges appear to have adopted a template approach to the cases before them, applying principles mechanically without regard to the human dimension of the cases or justice in the wider sense.

This has in my view led to a great deal of dissatisfaction, a point which the Chief Justice and the President of the Court of Appeal must take note of. It is not a state of affairs that is going to fade away. With perceptions of the competence of the judiciary as they are, litigants will appeal decisions of the High Court to the Court of Appeal almost as a matter of course. 

Similarly, more litigants are seeking leave to appeal to the Federal Court. Many of these involve decisions of the Court of Appeal which are erroneous but which do not necessarily fulfill the legal requirements for leave to appeal to the court. This in turn has led to complaints about the uneven application of law and the undermining of the right to a fair hearing. So much so that the Federal Court is now more often being called upon to reconsider its narrow scope of leave. The Bar Council is in fact looking to propose an amendment to the law to allow for the Federal Court to deal with matters where the justice of the case requires.

It is as such imperative for the Chief Justice to remind his judges of the human dimension of what it is that occurs in the courts of this country. Ensuring that justice “is seen to be done” must be made a priority, even if it means a slowing down of the disposal rate in the short term. Only the can justice be said to have been done.

MIS

(A version of this comment was first published in The Edge on 23.03.2013)

Rallying behind reform

The recent statement by the Chief Justice that lawyers should stop corrupting judges is welcome for the fact of it implicitly recognizing that corruption within the judiciary is a problem that needs to be addressed. That the Chief Justice underscored his caution by once again reiterating the importance of judicial independence shows how clearly he views corruption as undermining the integrity of both the institution and the process it administers. It is heartening that this a theme that the Chief Justice has consitently returned to in the course of his tenure.

It must be said however that as welcome as the statement is, the Chief Justice should also give Malaysians an idea of what further steps are being taken to deal with, and combat, this evil. He should not allow himself to be seen as doing nothing more than merely say the right thing. I, for one, do not think this to be the case. As I have written before, in belling the proverbial cat, this Chief Justice has done something that his predecessors had not. He has also, to an extent, followed through. His decision to empanel five, as opposed to three, judges in all Federal Court hearings, implemented last March, has gone some way to inspire more confidence in that court. 

Having said that, the Chief Justice should appreciate that for his reform efforts to gain traction, there has to be a public discussion about the same.  As far as i know, his recommendation that judges declare their assets has yet to be affected. Though this is undoubtedly an issue that requires mature consideration, it has been some time and the issue has to an extent faded. I believe that a further explanation as to the state of play is warranted.

Similarly, other aspects of the mater, for instance the forms of control imposed or being proposed to reduce the prevalence of corruption, should be highlighted. For instance, the Chief Justice can let us know how it is that the staff of the various registries is being kept in line. It is widely accepted that the staff of the registries are influential for their being privy to information concerning judges and hearings, in particular which judges are slated to hear specific cases. Without intending any accusation, it is evident that this is information that could be utilized to further improper aims, and may have well been.

I have said before too that it would be useful for the Chief Justice to make clear how it is judges are selected for hearings. The impression that judges are selected for particular cases based on their views of the case, especially in the appellate courts or in controversial cases, is one that can only be dispelled by an explanation of how they are in fact selected. 

There is another dimension to the issue. Malaysians should also be made aware of what systemic impediments there are to the due administration of justice. For instance, consider the salaries of judges. We should be made to understand whether our judges are being paid enough or, put another way, whether their salaries are sufficiently high so as to attract the kind of candidates the job requires. This is not to say that money should ever be the key factor in embracing public service.  However, it must be recognised that the kind of high calibre practitioners that judicial office calls for are individuals who have over the years arranged their financial affairs in a manner suited to their income levels as private practitoners. As such, they may not be in a position to accommodate the reduction of income currently involved. This was recognised by the Government of Singapore a while ago as a consequence of which it provided for suitable remuneration, which while it did not match what the candidates were earning in private practice nonetheless allowed them to adapt without undue difficulty.

It goes without saying that if judges were remunerated in a manner befitting of their office, there would be less temptation to stray.

The question of whether the Judiciary is given the resourses it needs to ensure that it can function the way it should is another instance of a potential failing of the system.  Consider the kinds of facilities judges of the Singaporean Judiciary have at their disposal, from well qualified and highly competent research officers, court staff and registrars, to reasearch facilities and even dining facilities. The contrast with the Malaysian Judiciary is stark. It is evident that the lack of facilities is going to result in compromises of quality of adjudication and judgments.

I refer to these two instances, there are others, to make the point that it is ultimately in the interest of the Judiciary for the Chief Justice to create public awareness of not only his vision but also his efforts at reform and the impediments he faces as it is only through this that Malaysians will appreciate what it is they have to do to bolster the Chief Justice’s efforts to improve the administration of justice and how it is they can rally behind the Chief Justice.

For at the heart of it is this one simple truth; I think Malaysians must rally behind the Chief Justice in order to restore the one institution that would help us put this country back firmly on the path to recovery. 

MIS

(This article was first published as "Rallying behind the Chief Justice" in the Edge, 21.01.13)