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)

BERSIH led by the opposition?

The Singapore Straits Times has a report in its edition today captioned “Activists in KL threaten more marches". Significantly, the sub-caption reads: “Opposition-led group warns of protests if ‘biased’ head of election body is not removed” (Malaysiakini has the story too, under the the caption "Bersih activists warn of further protests").

I say significant because though BERSIH was conceived as a civil society initiative in which political parties participated (as opposed to lead) on the basis that political parties, and by this I mean, all political parties, are a part of civil society, it appears that the initiative may have now evolved into a political vehicle. Judging by the article in the Singapore Straits Times, it would appear that this is a perception that some have.

The call for electoral reform is a reasonable one. It is apparent that the system is not a perfect one, both institutionally and in the way it is managed. After the last General Election, Keadilan applied to the High Court for declaratory orders as to how the Election Commission should conduct elections in general. This proceeding was prompted by a desire to clear ambiguities that had become apparent during the last General Election and which marred the public dimension of the General Election. Despite a clear representation that the declaratory orders were not intended to challenge the result of the elections, that being the province of the Election courts and election petitions, the High Court dismissed the action for that reason.

A significant amount of empirical evidence of irregularities and perhaps even improprieties as to the electoral role has been collated. This at the very least warrants close scrutiny of the electoral role as well as aspects of the process itself, and, following that, a public accounting. I believe that this is necessary for the Government to say that Malaysians have sound basis for confidence in the electoral system and for a belief that there are in fact Free and Fair Elections in Malaysia.

It was a desire for such an effort that prompted civil society to found BERSIH.

Being a civil society initiative, BERSIH could say with reasonable certainty that it was a citizens’ movement. The participation of opposition parties in itself ought not be seen as being negative or undermining of the nature of the initiative. The experience of these entities is invaluable for an understanding of the electoral process. Further, I believe that initiatives like these must be inclusive and not exclusive.

Having said that, to allow for a situation where political parties lead, or are perceived to lead, the initiative is then to allow for the creation of a political dimension that is undermining of the objectives of the coalition. This is for two reasons. Firstly, by allowing for political parties to be seen as leading the initiative, it would be natural for some to assume that the initiative is geared towards assisting these parties. If they are, as in this case, political parties that have not been significantly successful in the last elections, it would not be unnatural for some to think that the assertions of irregularities and improprieties are to an extent a manifestation of the frustration of these political parties at losing. The validity of these assertions would then be undermined or even compromised.

We have in fact heard suggestions of this nature from the Government already. This does not augur well for the initiative, especially when it is the political parties that make up the Government that were successful at the last elections.

Secondly, and this more the case in countries like Malaysia where opposition political parties have only limited means to reach out to the rakyat, every opportunity for public positioning of the opposition’s agenda is invaluable. It would, as such, not be unreasonable for some to conclude that the initiative is then being utilized for a political end distinct from the objective of electoral reform. It would not be unreasonable to even form the view that the initiative has been hijacked by the political parties as, in general, a political agenda and methodology are by the nature of the political process distinct from those of civil society.

At the press conference held last week during which a joint memorandum was issued asking for an appointment for a discussion with the Prime Minister, civil society representatives emphasized that their aims were to be distinguished from those of the political parties present. It is apparent to NGOs involved in the issues arising that that there are matters of concern to citizens that require urgent attention and due consideration. It is also apparent that there are those who feel that their cries for reform or help are being summarily dismissed, ignored or blocked out. The willingness of ordinarily placid Malaysians to march is indication enough of a sense of frustration. Independent of the political dimension, these are matters that need to be addressed constructively.

The meetings that have been held between Indian NGOs and the Prime Minister is, I believe, a constructive process. I am grateful for the fact that the Government has not seen it fit to dismiss the grievances of the Indian community after having condemned and acted against HINDRAF. I had expressed a concern as to the possible ‘chilling effect’ of the Internal Security Act detentions (to which I am opposed) on the process of airing these grievances. I am hoping that the Government will approach the question of electoral reform in as constructive a fashion.

Seen from this perspective, the perception that BERSIH is being led by politicians for, possibly, political gain is worrying.

Civil society has much to offer and its value should not be permitted to be undermined. The limited space that civil society has been successful in carving out for itself should be jealously guarded. The effects of the potential damage to the initiative by reason of a perceived political agenda will linger far longer than the political usefulness of the initiative.

The steering committee of BERSIH must therefore take steps to urgently address those factors that have allowed for a perception that it is being led by the opposition if in fact it is not. If it is, then civil society may wish to reconsider the level of involvement of political parties in BERSIH.

MIS

A Thought On Rallies: The Bar, BERSIH, HINDRAF And Those To Come

"At the start of the dictatorships in Chile, Argentina and Uruguay, the only public gatherings permitted were shows of military strength and football matches. In Chile, wearing slacks was enough to get you arrested if you were a woman, long hair if you were a man. "All over the Republic a thorough cleansing is under way," declared an editorial in a junta-controlled Argentine newspaper. It called for a mass scrubbing of leftist graffiti: "Soon enough of the surfaces will shine through, released from that nightmare by the action of soap and water."

In Chile, Pinochet was determined to break his people's habit of taking to the streets. The tiniest gatherings were dispersed with water cannons, Pinochet's favorite crowd control weapon. The junta had hundreds of them, small enough to drive onto sidewalks and douse cliques of school-children handing out leaflets; even funeral processions, when the mourning got too rowdy, were brutally repressed. Nicknamed guanacos, after a llama known for its habit of spitting, the ubiquitous cannons cleared away people as if they were human garbage, leaving the streets glistening, empty."

(Naomi Klein, 'The Shock Doctrine')


"In spite of fairly regular multi-party elections and some other features requiring accountability of the regime, the Malaysian state has been authoritarian since the colonial period, though analysts have charcterised the political system as semi-authoritarian, semi democratic, or quasi-democratic. Although these qualified descriptions suggest that some democratic aspects and forms remain, most of the minimal conditions necessary for the practice of democracy in the Schumpeterian sense, particularly fair elections, adequate opportunities for independent political opinion-making and political organisation, and minimal protection for the individual from arbitrary state power, hardly exist in Malaysia. Further, as Crouch points out, even the minimal civil liberties and democratic procedures that exist are allowed as long as the position of the ruling elite is not seriously threatened, let alone undermined; he observes that such rights have been 'quickly modified or abolished when elite interests were threatened'. This has been true of amendments to the Federal Constitution and other legislation, as well as to the rules and regulations governing UMNO, which has increasingly enjoyed and deployed the powers and privileges of long term incumbency since 1955 in a seemingly one-party state."

(Terrence Gomez and Jomo K.S., 'Malaysia's Political Economy: Politics, Patronage And Profits')

Al Jazeera On The BERSIH Rally

Yesterday, I found myself sitting in a studio at Al Jazeera with Dato’ Seri Nazri and Khairy Jamaluddin discussing the BERSIH 10-11 rally. Teymoor Nabili, the host of 101 East was kind enough to moderate. Needless to say, the discussion was lively and interesting.

I am informed that the interview will air over Astro, Al Jazeera English, 10.30 pm, Thurday (‘101 East’). It will then be aired throughout the week (the schedule can be found on line at the Al Jazeera web-site) and will also be available on line.

MIS

Note: Been informed that it is Channel 513

Congratulations BERSIH and Malaysian Civil Society

My heartfelt congratulations to the organizers of the BERSIH 10-11 March and to all Malaysians who made the event what it was.

I was on the Bar Council Urgent Arrest response team and found myself waiting on the side-lines for the SOS calls we were anticipating. Thankfully, the calls were few. The events of Masjid Jamek aside and, in my view, the unnecessary arrest of some of the demonstrators, I think the Royal Malaysian Police showed commendable restraint and foresight, a state of affairs which deserves recognition. I believe that it is largely due to this restraint that the event did not become the chaotic melee that some of us were anticipating it might become. The events of Pantai Batu Buruk and Bloody Sunday are still fresh in the minds of many Malaysians.

There were arrests though and as the evening drew to a close, I found myself with a few other lawyers at the IPK KL on Jalan Hang Tuah. The 34 who were arrested were all released by 11.00 pm Saturday evening (the Suaram web-site has details). While the police officers we dealt with were friendly and courteous, the lawyers were not permitted entry to the police station nor any opportunity to meet with our clients. This ran counter to recent amendments introduced to the Criminal Procedure Code that entrench the right of a person arrested to meet with his lawyers before giving a statement to the police. Statements were taken despite our reminders to the police officers concerned of the rights of those detained.

MIS





















With R Sivarasa, lawyer and Keadilan EXCO member, and Shan Kanesalingam, lawyer. Outside IPK KL.

Of Peaceful Gatherings, The Freedom Of Speech And Live Ammunition

You would have read or heard of the shocking events in Kuala Trengganu late last night and early this morning. Let us look at these events in perspective.

A coalition aimed at nothing more than a free and fair electoral process, BERSIH (Coalition For Free And Fair Elections), is on a road show aimed at promoting awareness of the need for free and fair elections. This is, in my mind, a nation building effort in light of concerns about the state of the electoral process in Malaysia.

Last night, as a part of the on-going roadshow, a forum was intended to be held at Pantai Batu Buruk, Trengganu. A report appearing in Malaysiakini (Live Bullet Fired At Angry Ceramah Crowd) tells us that the organizers had applied for the necessary permit and had assumed that the ‘event would be given the green-light’. BERSIH events appear to have been held prior to this without any problem (see here for events held to date).

Tan Sri Khalid (PKR) and Mohamad Sabu (PAS) were to speak.

The police refused a permit. No explanation appears to have been given for this refusal. [Update: The updated Malaysiakini report states that a permit was in fact given but withdrawn at the last minute]

From the Malaysiakini report, a report appearing on Harakah online and a sequence of events provided by BERSIH (see here), the following can be discerned: a police cordon was established from as early as 5.00 pm. A stage set up for the event was ordered to be brought down at about the same time. A crowd began to gather. There was a significant police presence. By 8.00 pm, the Riot Squad (Federal Reserve Unit, FRU) began to direct the dispersal of the crowd. The crowd grew in number. At about 10.00 pm the stage set up for the event was torn down. The crowd became agitated and began to engage with the police officers. By 1o.30 the FRU began using water-cannons and tear gas, and continued to do so until about 1.30, at which point the FRU began to withdraw.

Live ammunition was used. The Malaysiakini report quotes the the Trengganu Police Chief as admitting that a shot was fired. He stresses that only one shot was fired. The Bersih and Harakah reports suggest otherwise.

As a consequence 2 persons, described as youths in the Harakah report, have apparently been injured (one, Suwandi Abdul Ghani, directly by the bullet and the other by 'percikan dari beberapa tembakan'). The Trengganu Police Chief asserts that this was in defence against an assault by a group of individuals. No suggestion has been made that any of the said individuals were armed. Further, no explanation has been offered as to how and why other police officers were not on hand to assist.

The BERSIH report states that the shot to was fired by a plain-clothes officer who had apparently infiltrated into the crowd. He was recognised and chased by a group of individuals who were throwing stones, apparently firing at them as he was attempting to evade them.

The Harakah report suggests that other shots were fired. No report states that a warning shot was fired first.

The matters described above are shocking, not only for their brutality but for their implications.

I believe the police acted unconstitutionally and, as such, wrongfully . Malaysians have a constitutional right to assemble peaceably and without arms (Article 10(1), Federal Constitution). This is a right that can only be curtailed by Parliament through restrictions deemed necessary or expedient in the interest of the security of the Federation or any part thereof or public order (Article 10(2), FC). The provisions of the Police Act prohibiting unlicenced public gatherings and making it mandatory to apply for licences for public gatherings must be read in the light of the constitutional guarantee.

Malaysians also have the right to express themselves (Article 10(1)). They also have a constitutional right to free and fair elections. The expression of concerns about the electoral process and the need for reforms is a matter of great constitutional significance. This goes to the heart of democracy in this country. The refusal by the police to grant a permit for the event, such refusal being by law permissible only where the supervising police officer concerned is satisfied that the event is not prejudicial to the security of the Federation or likely to cause a public disturbance, was an act in violation of both letter and spirit of the Federal Constitution and an exercise in arbitrary decision making.

The use of any measure to impede the right of assembly and expression and further, the use of force and all such measures employed, is unconstitutional. The use of force and live ammunition is of grave concern. The police were not dealing with armed assailants. They were dealing with person-on-the street Malaysians.

The matters above suggest that the authorities, and any government that supports them by leaving their actions unaccounted for, believe that:

• events aimed at promoting awareness of the constitutionally provided free and fair electoral process are events that are prejudicial to the security of the Federation or will cause public disturbance;

• use of force is permissibe to disperse gatherings of Malaysians interested in hearing more about the process in the exercise of their constitutional right to the freedom of assembly and expression. Such use of force would include shooting at individuals who are not bearing firearms or, apparently, no other arms; and
  

• police personnel deployed to deal with peaceable gatherings where no arms are apparently being carried are permitted to carry arms and live ammunition and use such weapons at their discretion.
  

If we are a constitutional democracy, as the Prime Minister says we are, how has it come to this? A Malaysia where force of arms is used against Malaysians exercising their constitutional rights to freedom of choice. What happens next? The dismantling of general elections?

For those of you who need more proof of the collapse of the Rule of Law in this country, look no further.

What say you, Mr Prime Minister?

MIS