I ended my association with the Malay Mail yesterday. Disquiet will no longer feature as a column.
MIS
Showing posts with label Malay Mail. Show all posts
Showing posts with label Malay Mail. Show all posts
Friday, May 8, 2009
Friday, April 24, 2009
Translating Policy Into Practice
Translating Policy Into Practice
The media reports that the cabinet has decided that children of marriages where one spouse subsequently embraces Islam would remain in the faith that the parents had agreed on at the time of marriage. The cabinet has also appeared to decide that the civil courts are to dissolve such marriages.
These decisions are welcome ones. They indicate willingness on the part of the administration to deal with issues that have for some time now been studiously avoided, a state of affairs that had prompted the establishment of the coalition of NGOs calling itself “Article 11” and its “Equal Protection For All” campaign in 2006.
The decisions also indicate the policy position of the current administration, one that on its face appears to adhere to the constitutional guarantees of equality and the right of parents to choose the religion of their children. The Constitution guarantees the right of a parent to decide the religious instruction of a minor child. The Constitution provides that words in the singular are to be understood to include the plural, parent being “parents”. By virtue of this and the guarantee against discrimination on grounds of gender, it is clear that the intention was to vest guardianship rights in both parents. This is reinforced by federal law.
I am however uncertain as to how this policy position is to translate into practice as the cabinet has little or no direct power in this regard. Religion is a matter for the state and not the federal government; each state has exclusive authority over the administration of Islam within the boundaries of that state. This would include matters of conversion of children and the jurisdiction of the syariah courts, both of which are matters in respect of which the state legislative assembly has the competence to enact laws on.
Though the constitution itself lends support to the policy position of the cabinet, and as such could be invoked to reign in those state agencies involved in these matters, the question of whether there has been a transgressing of limits is one for the courts. The courts have however in recent years handed down decision after decision that have undermined the constitutional framework and entrenched as principle the very matters that the cabinet now wishes to address.
In 2004, the High Court in Shamala Sathiyaseelan ruled that the converting husband had a right to convert the children into Islam without the consent of the wife. The court also ruled that it had no jurisdiction to entertain the wife’s application to challenge the legitimacy of the conversion. Accepting that the wife was without recourse for not being able to move the syariah court as a non-muslim, the court counseled her to seek the assistance of the Majlis Agama. This is a scenario that the majority decision of the Federal Court in Lina Joy reinforced in 2007
In the same vein, a majority bench of the Federal Court in Subashini Rajasingam concluded in 2008 that either parent could convert a child of the marriage into Islam. It ignored the non-discrimination guarantee as well as the interpretation provision for words in the singular and focused on the word “parent”, interpreting it to mean “parent” in the singular. The majority also decided that the muslim party was free to commence proceedings in the syariah court even though the non-muslim party was entitled to seek dissolution and maintenance and custody orders in the High Court.
These decisions and others like them stand in the way of the cabinet implementing its policy position. It is ironic that the decisions noted above were largely the result of ill conceived and shortsighted positions taken by the Attorney General’s Chambers on these matters, positions that sought to denude the High Court of jurisdiction to allow for the preservation of an unjust status quo.
To move forward, the cabinet must therefore take the bull by the horns.
I assume that the cabinet made its decisions based on advice from the Attorney General. It is therefore imperative that the Attorney General articulates his revised position on these issues in the courts as soon as possible. The Shamala case comes before the Court of Appeal on Monday and he should apply to intervene to make the necessary points. Being matters of great constitutional significance that are clearly in the public interest, they warrant his involvement.
These decisions are welcome ones. They indicate willingness on the part of the administration to deal with issues that have for some time now been studiously avoided, a state of affairs that had prompted the establishment of the coalition of NGOs calling itself “Article 11” and its “Equal Protection For All” campaign in 2006.
The decisions also indicate the policy position of the current administration, one that on its face appears to adhere to the constitutional guarantees of equality and the right of parents to choose the religion of their children. The Constitution guarantees the right of a parent to decide the religious instruction of a minor child. The Constitution provides that words in the singular are to be understood to include the plural, parent being “parents”. By virtue of this and the guarantee against discrimination on grounds of gender, it is clear that the intention was to vest guardianship rights in both parents. This is reinforced by federal law.
I am however uncertain as to how this policy position is to translate into practice as the cabinet has little or no direct power in this regard. Religion is a matter for the state and not the federal government; each state has exclusive authority over the administration of Islam within the boundaries of that state. This would include matters of conversion of children and the jurisdiction of the syariah courts, both of which are matters in respect of which the state legislative assembly has the competence to enact laws on.
Though the constitution itself lends support to the policy position of the cabinet, and as such could be invoked to reign in those state agencies involved in these matters, the question of whether there has been a transgressing of limits is one for the courts. The courts have however in recent years handed down decision after decision that have undermined the constitutional framework and entrenched as principle the very matters that the cabinet now wishes to address.
In 2004, the High Court in Shamala Sathiyaseelan ruled that the converting husband had a right to convert the children into Islam without the consent of the wife. The court also ruled that it had no jurisdiction to entertain the wife’s application to challenge the legitimacy of the conversion. Accepting that the wife was without recourse for not being able to move the syariah court as a non-muslim, the court counseled her to seek the assistance of the Majlis Agama. This is a scenario that the majority decision of the Federal Court in Lina Joy reinforced in 2007
In the same vein, a majority bench of the Federal Court in Subashini Rajasingam concluded in 2008 that either parent could convert a child of the marriage into Islam. It ignored the non-discrimination guarantee as well as the interpretation provision for words in the singular and focused on the word “parent”, interpreting it to mean “parent” in the singular. The majority also decided that the muslim party was free to commence proceedings in the syariah court even though the non-muslim party was entitled to seek dissolution and maintenance and custody orders in the High Court.
These decisions and others like them stand in the way of the cabinet implementing its policy position. It is ironic that the decisions noted above were largely the result of ill conceived and shortsighted positions taken by the Attorney General’s Chambers on these matters, positions that sought to denude the High Court of jurisdiction to allow for the preservation of an unjust status quo.
To move forward, the cabinet must therefore take the bull by the horns.
I assume that the cabinet made its decisions based on advice from the Attorney General. It is therefore imperative that the Attorney General articulates his revised position on these issues in the courts as soon as possible. The Shamala case comes before the Court of Appeal on Monday and he should apply to intervene to make the necessary points. Being matters of great constitutional significance that are clearly in the public interest, they warrant his involvement.
(Malay Mail; 24th April 2009)
MIS
Friday, April 17, 2009
Adapting To The Times
Adapting To The Times
Proponents of the Internal Security Act justify their viewpoint by reference to the need for law to enable the authorities to deal with threats to national security. In principle, there is nothing objectionable with that position. As I explain below, the Federal Constitution allows for the enacting of laws to that end.
The shape these laws take, however, depends on the nature of the threat that is sort to be addressed and the measures needed for that purpose. These features inform any discussion concerning the relevance, if at all, of laws that allow for detention without trial under our constitutional framework.
There is no general power in Parliament to validly enact laws that contravene the fundamental liberties guaranteed under the Constitution. That is why the Criminal Procedure Code has crystallized in the form it has, obliging the police to produce an arrested person before a magistrate within twenty-four hours of arrest. If the police want to keep that person in custody without charging him or her for a further period of time to allow for further investigation, they have to convince a magistrate of the need for this extension.
Where the offence being investigated is punishable by death or with imprisonment of more than fourteen years, the magistrate can order a further detention of up to seven days with it being open to the police to seek a further seven days thereafter. Where the offence is punishable with imprisonment of less than fourteen years, the maximum period of further detention is seven days, in stages of four and three days respectively.
The rationale is that the individual being investigated should be charged as soon as possible or be let go, the thinking being that if after that many days as is permitted the police have got no basis to charge, then continued detention is not justifiable. The individual can be rearrested subsequently if more evidence surfaces and then charged, but unless and until that occurs, he is entitled to liberty. If charged, the accused then has the benefit of all the safeguards of the criminal justice system the most important of which is a trial.
That is what the guarantee against the denial of life and liberty “save in accordance with law” means.
There is however a constitutionally entrenched exception to this general rule. Parliament can enact laws that circumvent the guarantees of liberty and associated guarantees to deal with the threat of action by a substantial body of persons that aims to destabilize the nation or undermine democracy.
The ISA was enacted using this exceptional power. The “substantial body of persons” concerned was the communist insurgent army whose actions had led to concerns about the security of the nation and its way of life. That is what made its enacting valid; it was a necessary means to disenfranchising the insurgents and preventing them from regrouping. The criminal justice system might have impeded efforts to deal with the insurgents effectively.
We tend to overlook the obvious truth that solutions must be crafted to suit the problems they are intended to solve. The ISA was designed to a particular end. It was never intended to define the upper limits of executive action where national security was concerned. It was never meant to be the yardstick.
There is no difficulty with invoking the criminal justice system to deal with individuals who are not affiliated to a larger body of persons, be they terrorists or the organizers of demonstrations or socio-political bloggers, no matter how convenient preventive detention may be.
This is not a matter of preference; it is the law.
If a crime has been committed, let the accused be tried. If no crime has been committed, then there is no basis for circumventing constitutional freedoms unless the nation itself is threatened.
For those who fear the uncertain, an anti-terror legislation will allow us to deal with actual national security concerns effectively. This law could be of a hybrid nature, applying general principles of criminal law for those acts of terrorism that do not fall within the constitutional exception but at the same time allowing for exceptional steps to be taken where the terrorism concerned does. The aim of these exceptional steps should be to deal with a clear and present danger and not to substitute criminal due process with executive whimsy. Detention periods should as such be of very limited duration, if a crime has been committed there should be a trial, and be made subject to strict judicial scrutiny. This would encourage less sloppy policing and lead to greater security.
Do we really need the ISA? With the range of more effective options available to us in this day and age, I do not think so.
The shape these laws take, however, depends on the nature of the threat that is sort to be addressed and the measures needed for that purpose. These features inform any discussion concerning the relevance, if at all, of laws that allow for detention without trial under our constitutional framework.
There is no general power in Parliament to validly enact laws that contravene the fundamental liberties guaranteed under the Constitution. That is why the Criminal Procedure Code has crystallized in the form it has, obliging the police to produce an arrested person before a magistrate within twenty-four hours of arrest. If the police want to keep that person in custody without charging him or her for a further period of time to allow for further investigation, they have to convince a magistrate of the need for this extension.
Where the offence being investigated is punishable by death or with imprisonment of more than fourteen years, the magistrate can order a further detention of up to seven days with it being open to the police to seek a further seven days thereafter. Where the offence is punishable with imprisonment of less than fourteen years, the maximum period of further detention is seven days, in stages of four and three days respectively.
The rationale is that the individual being investigated should be charged as soon as possible or be let go, the thinking being that if after that many days as is permitted the police have got no basis to charge, then continued detention is not justifiable. The individual can be rearrested subsequently if more evidence surfaces and then charged, but unless and until that occurs, he is entitled to liberty. If charged, the accused then has the benefit of all the safeguards of the criminal justice system the most important of which is a trial.
That is what the guarantee against the denial of life and liberty “save in accordance with law” means.
There is however a constitutionally entrenched exception to this general rule. Parliament can enact laws that circumvent the guarantees of liberty and associated guarantees to deal with the threat of action by a substantial body of persons that aims to destabilize the nation or undermine democracy.
The ISA was enacted using this exceptional power. The “substantial body of persons” concerned was the communist insurgent army whose actions had led to concerns about the security of the nation and its way of life. That is what made its enacting valid; it was a necessary means to disenfranchising the insurgents and preventing them from regrouping. The criminal justice system might have impeded efforts to deal with the insurgents effectively.
We tend to overlook the obvious truth that solutions must be crafted to suit the problems they are intended to solve. The ISA was designed to a particular end. It was never intended to define the upper limits of executive action where national security was concerned. It was never meant to be the yardstick.
There is no difficulty with invoking the criminal justice system to deal with individuals who are not affiliated to a larger body of persons, be they terrorists or the organizers of demonstrations or socio-political bloggers, no matter how convenient preventive detention may be.
This is not a matter of preference; it is the law.
If a crime has been committed, let the accused be tried. If no crime has been committed, then there is no basis for circumventing constitutional freedoms unless the nation itself is threatened.
For those who fear the uncertain, an anti-terror legislation will allow us to deal with actual national security concerns effectively. This law could be of a hybrid nature, applying general principles of criminal law for those acts of terrorism that do not fall within the constitutional exception but at the same time allowing for exceptional steps to be taken where the terrorism concerned does. The aim of these exceptional steps should be to deal with a clear and present danger and not to substitute criminal due process with executive whimsy. Detention periods should as such be of very limited duration, if a crime has been committed there should be a trial, and be made subject to strict judicial scrutiny. This would encourage less sloppy policing and lead to greater security.
Do we really need the ISA? With the range of more effective options available to us in this day and age, I do not think so.
(Malay Mail; 17th April 2007)
MIS
Saturday, April 11, 2009
Finishing Point
Finishing Point
The Internal Security Act has no place in the modern society that Malaysia is. It was designed for a very different time and purpose. As Tun Abdul Razak emphasized in Parliament in 1960 when questioned by a very concerned Opposition as to the purpose of the then pending bill, it was intended only to address the threat to democracy that the Communist insurgency was.
As Malaysians learnt the hard way, it was used for more than that. It became the weapon of choice of politicians who were not averse to prioritizing their personal interests over those of the nation.
The populist gesture of releasing detainees by newly minted Prime Ministers underscores this point. Prime Ministers not having the prerogatives of Kings, there is no basis for benevolent munificence on their part. They are, like the rest of us, expected to act according to the law. The release of detainees is as such intended to reflect a departure from the policy positions of the previous administration and in this, the ISA invoked as a symbol of wrong to showcase a willingness to embrace what is right. The gesture as such proves the injustice that the ISA is.
In fairness, the gesture this time has come with a twist, the promise of a review. Though it is not clear what this means or even that it will occur, the Prime Minister must be given the benefit of the doubt. His concession has vindicated the movement against the continued existence and use of the statute. It also presents a useful opportunity to consider what it is that must be done and why it should be.
There have been numerous objective and careful studies conducted on the ISA by various interested parties. All of these have pointed to a need to review the law, some even going so far as to suggest a repeal of the statute. The essential point made is that the ISA is not consistent with guarantees of civil liberties under Malaysian and international law. The Government has consistently disregarded these suggestions and in justifying itself has pointed to the courts having validated the ISA and actions taken under it, and the need for anti-terror legislation.
Judicial decisions of the apex court have however been formulaic and shaped by an uninspiring view of liberty, more so since 1989 when judicial review was precluded by way of an amendment to the ISA. The quality of some of these decisions is also suspect, the conclusions drawn questionable.
For a successful review, a new approach must as such be adopted. This must be grounded on an acceptance of the immutable truth that our civil liberties are guaranteed in the widest sense and that government must be in accordance wit the Rule of Law.
The power to enact laws that impinge on these liberties can only be used sparingly and in a very narrow compass. Actions taken under these laws must be subjected to strict judicial scrutiny. Terrorism can be dealt with effectively without undue compromise of freedoms; societies across the world are doing just that using appropriately crafted anti-terror laws.
There is no point to a review if the Government wishes to preserve an unfettered power to detain at will. This must be the starting point of any discussion on the subject. If accepted, it will also be the finishing point: the ISA must be repealed.
As Malaysians learnt the hard way, it was used for more than that. It became the weapon of choice of politicians who were not averse to prioritizing their personal interests over those of the nation.
The populist gesture of releasing detainees by newly minted Prime Ministers underscores this point. Prime Ministers not having the prerogatives of Kings, there is no basis for benevolent munificence on their part. They are, like the rest of us, expected to act according to the law. The release of detainees is as such intended to reflect a departure from the policy positions of the previous administration and in this, the ISA invoked as a symbol of wrong to showcase a willingness to embrace what is right. The gesture as such proves the injustice that the ISA is.
In fairness, the gesture this time has come with a twist, the promise of a review. Though it is not clear what this means or even that it will occur, the Prime Minister must be given the benefit of the doubt. His concession has vindicated the movement against the continued existence and use of the statute. It also presents a useful opportunity to consider what it is that must be done and why it should be.
There have been numerous objective and careful studies conducted on the ISA by various interested parties. All of these have pointed to a need to review the law, some even going so far as to suggest a repeal of the statute. The essential point made is that the ISA is not consistent with guarantees of civil liberties under Malaysian and international law. The Government has consistently disregarded these suggestions and in justifying itself has pointed to the courts having validated the ISA and actions taken under it, and the need for anti-terror legislation.
Judicial decisions of the apex court have however been formulaic and shaped by an uninspiring view of liberty, more so since 1989 when judicial review was precluded by way of an amendment to the ISA. The quality of some of these decisions is also suspect, the conclusions drawn questionable.
For a successful review, a new approach must as such be adopted. This must be grounded on an acceptance of the immutable truth that our civil liberties are guaranteed in the widest sense and that government must be in accordance wit the Rule of Law.
The power to enact laws that impinge on these liberties can only be used sparingly and in a very narrow compass. Actions taken under these laws must be subjected to strict judicial scrutiny. Terrorism can be dealt with effectively without undue compromise of freedoms; societies across the world are doing just that using appropriately crafted anti-terror laws.
There is no point to a review if the Government wishes to preserve an unfettered power to detain at will. This must be the starting point of any discussion on the subject. If accepted, it will also be the finishing point: the ISA must be repealed.
(Malay Mail; 10th April 2009)
MIS
(Disquiet in the Malay Mail is now published on Fridays)
MIS
(Disquiet in the Malay Mail is now published on Fridays)
Tuesday, February 10, 2009
The Cost Of Winning
The Cost Of Winning
One cannot be faulted for thinking that those who claim the right to lead us understand that the system of constitutional democracy put in place by the Federal and State Constitutions circumscribes the authority and power of the Yang diPertuan Agong and their majesties the Malay Rulers.
They surely appreciate that this is particulars so in matters of governance where even if a royal discretion or prerogative is involved, such as is invoked where a Mentri Besar is appointed, such discretion is guided by constitutional prerequisites and that the process of checks and balances must necessarily inform the exercise of such discretion.
An aspect of this process is the taking of legal challenge against the Ruler concerned. The constitutional crisis’ in East Malaysia in 1966 and 1994 saw challenges against the Governors of Sarawak and Sabah respectively, for instance. The constitutional framework makes no distinction between a Sultan or Raja and a Governor where the exercise of such discretions is concerned. Both categories of personages are understood in law to be exercising constitutionally delineated discretion. Such exercises of power are open to being scrutinized by the courts of this country.
It is for that reason that it is said that the doctrine of separation of powers, so crucial to efficacious functioning of democracy, safeguards citizens from autocratic action on the part of any organ of this country. This is the bedrock that gives foundation to the sacred principle that no person is above the law.
I believe that this notion of guided discretion prompted the Prime Minister to say last March that the appointment of Datuk Ahmad Said as Menteri Besar by the Regent of Trengganu was unconstitutional. It is also a belief that the Regent had overstepped the constitutional limits of His Highness’ discretion that prompted UMNO assemblymen as well as UMNO agencies to protest the appointment and to stand by their preferred candidate, Datuk Seri Idris Jusoh. A similar situation in Perlis led to a well-publicized crisis within UMNO at around the same time.
In these incidents, and others like them, political parties and individuals had for their own reasons voiced their disagreement with the decision of a Ruler in the belief that the Ruler erred in going beyond what was legally permissible. There was no legal prohibition to them doing so, a state of affairs that remains unchanged. Such action cannot be criminalized for being seditious as the voicing of opinions aimed at showing that a Ruler had been mistaken is allowed. All leaders are capable of making mistakes and being able say that they have done so is a necessary part of democratic forms of government.
To say that such action amounts to treason is wholly incredible. Treason requires an intention to wage war, to cause bodily harm or death or to cause the deposing of a Ruler. Saying that the Ruler is wrong may be impolite or offensive but it can by no stretch of the imagination amount to treason, nor has it ever been suggested to amount to such.
Until now it would seem.
Mr Karpal Singh and his Pakatan Rakyat associates are in the line of fire and ironically, UMNO and its agencies have put them there. The charge: that they have committed treason and sedition in having publicly taken the position that the Sultan of Perak erred in having decided to allow the Barisan Nasional to form a government in Perak.
How what it is Mr Karpal and associates have said and done amounts to treason or sedition eludes understanding, just as how it differs in principle from what was done in Trengganu or Perlis last March. In as much some may have disagreed with those who protested the decisions of the Rulers in those States, they were entitled not only to their views but also to express those views. Their right to do so is a cornerstone of a system founded on the Rule of Law, one that Tun Mahathir relied on to strip away royal immunity when he was Prime Minister.
It is possible to infer from the manifest lack of basis for the fiery denunciations that behind them lurk questionable political objectives. The imminent UMNO assembly is more probably than not a factor that has shaped the way in which the recent “win” in Perak has been approached since.
The posturing and rhetoric is further so threatening in nature that it is not unreasonable to infer that a campaign of intimidation is underway. Its objective is self-evidently the communicating of a message to those inclined to challenge the legal validity of the appointment of the new Mentri Besar: that they do so at their own peril. Such conduct could fairly be characterized as being intended to subvert the due process of law. If so, this is a punishable contempt of court.
More worryingly, such conduct incites. Too often, political leaders get so lost in their politics to the extent that they fail to see that their rallying cries potentially have a less desirable kind of influence. In all societies there skulk individuals who take it upon themselves to force through a conclusion that they believe their community requires in supreme acts of deliverance. All they need is to receive the right message. Our leaders warn us about playing with fire yet they forget sometimes that it is they who ignite sentiments with potentially devastating consequences.
The situation in Perak has caused anger and pain. It may be that the only way in which the chapter can be closed is through a decision of the courts. For many, the decision itself may be less important than the process. An airing of grievances, such as a court hearing will allow for, is more often than not essential to the achieving of reconciliation. Resolution of this nature can only be in the interests of the state and its government, whoever forms it.
Though the Barisan Nasional may have won the day in securing the right to govern, it must ask at what cost to itself and, more importantly, to the rakyat. In this case, the winner does not take all.
They surely appreciate that this is particulars so in matters of governance where even if a royal discretion or prerogative is involved, such as is invoked where a Mentri Besar is appointed, such discretion is guided by constitutional prerequisites and that the process of checks and balances must necessarily inform the exercise of such discretion.
An aspect of this process is the taking of legal challenge against the Ruler concerned. The constitutional crisis’ in East Malaysia in 1966 and 1994 saw challenges against the Governors of Sarawak and Sabah respectively, for instance. The constitutional framework makes no distinction between a Sultan or Raja and a Governor where the exercise of such discretions is concerned. Both categories of personages are understood in law to be exercising constitutionally delineated discretion. Such exercises of power are open to being scrutinized by the courts of this country.
It is for that reason that it is said that the doctrine of separation of powers, so crucial to efficacious functioning of democracy, safeguards citizens from autocratic action on the part of any organ of this country. This is the bedrock that gives foundation to the sacred principle that no person is above the law.
I believe that this notion of guided discretion prompted the Prime Minister to say last March that the appointment of Datuk Ahmad Said as Menteri Besar by the Regent of Trengganu was unconstitutional. It is also a belief that the Regent had overstepped the constitutional limits of His Highness’ discretion that prompted UMNO assemblymen as well as UMNO agencies to protest the appointment and to stand by their preferred candidate, Datuk Seri Idris Jusoh. A similar situation in Perlis led to a well-publicized crisis within UMNO at around the same time.
In these incidents, and others like them, political parties and individuals had for their own reasons voiced their disagreement with the decision of a Ruler in the belief that the Ruler erred in going beyond what was legally permissible. There was no legal prohibition to them doing so, a state of affairs that remains unchanged. Such action cannot be criminalized for being seditious as the voicing of opinions aimed at showing that a Ruler had been mistaken is allowed. All leaders are capable of making mistakes and being able say that they have done so is a necessary part of democratic forms of government.
To say that such action amounts to treason is wholly incredible. Treason requires an intention to wage war, to cause bodily harm or death or to cause the deposing of a Ruler. Saying that the Ruler is wrong may be impolite or offensive but it can by no stretch of the imagination amount to treason, nor has it ever been suggested to amount to such.
Until now it would seem.
Mr Karpal Singh and his Pakatan Rakyat associates are in the line of fire and ironically, UMNO and its agencies have put them there. The charge: that they have committed treason and sedition in having publicly taken the position that the Sultan of Perak erred in having decided to allow the Barisan Nasional to form a government in Perak.
How what it is Mr Karpal and associates have said and done amounts to treason or sedition eludes understanding, just as how it differs in principle from what was done in Trengganu or Perlis last March. In as much some may have disagreed with those who protested the decisions of the Rulers in those States, they were entitled not only to their views but also to express those views. Their right to do so is a cornerstone of a system founded on the Rule of Law, one that Tun Mahathir relied on to strip away royal immunity when he was Prime Minister.
It is possible to infer from the manifest lack of basis for the fiery denunciations that behind them lurk questionable political objectives. The imminent UMNO assembly is more probably than not a factor that has shaped the way in which the recent “win” in Perak has been approached since.
The posturing and rhetoric is further so threatening in nature that it is not unreasonable to infer that a campaign of intimidation is underway. Its objective is self-evidently the communicating of a message to those inclined to challenge the legal validity of the appointment of the new Mentri Besar: that they do so at their own peril. Such conduct could fairly be characterized as being intended to subvert the due process of law. If so, this is a punishable contempt of court.
More worryingly, such conduct incites. Too often, political leaders get so lost in their politics to the extent that they fail to see that their rallying cries potentially have a less desirable kind of influence. In all societies there skulk individuals who take it upon themselves to force through a conclusion that they believe their community requires in supreme acts of deliverance. All they need is to receive the right message. Our leaders warn us about playing with fire yet they forget sometimes that it is they who ignite sentiments with potentially devastating consequences.
The situation in Perak has caused anger and pain. It may be that the only way in which the chapter can be closed is through a decision of the courts. For many, the decision itself may be less important than the process. An airing of grievances, such as a court hearing will allow for, is more often than not essential to the achieving of reconciliation. Resolution of this nature can only be in the interests of the state and its government, whoever forms it.
Though the Barisan Nasional may have won the day in securing the right to govern, it must ask at what cost to itself and, more importantly, to the rakyat. In this case, the winner does not take all.
(Malay Mail; 10th February 2009)
MIS
Wednesday, February 4, 2009
Fruit Of The Poisonous Tree
Fruit of the poisonous tree
In much of the commentary thus far on the sudden death of Kugan Ananthan while in police custody, the focus has been on the need for greater control and supervision of the police to ensure the accountability and transparency so crucial to the curbing of abuses of power. I too have written elsewhere that the Government’s refusal to establish the proposed Independent Police Complaints and Misconduct Commission (IPCMC) is impeding its ability to deal with the attitudes and practices that have resulted in a discomforting prevalence of sudden deaths in custody.
That this is an important aspect of any meaningful and coherent effort to curb abuses of power by the police cannot be emphasised enough. The issue is really a systemic one; it is the system that is failing Malaysians and allowing for the kind of horrific events that we have been made to bear witness to far too often this last decade.
Having said that, other more immediate solutions or deterrents are no less important. A transparent investigation into the death and due prosecution of all those involved to the fullest extent of the law would serve the interest of Kugan’s family and the wider public by ensuring that justice is not only done but is also seen to be done. This would go far in helping staunch the hemorrhage of public confidence in the institution. Immediate disciplinary action would reinforce the gains.
In the same vein, there is much value in seeking to understand what it is that drives those abuses that lead to injuries or even deaths in custody.
It is readily apparent that there is no legal basis for the use of force by police officers during interrogation. If a police officer uses force he is in fact assaulting and battering an individual. In doing so, he is committing a range of crimes as well as acting wrongfully in a way that would justify a claim for damages. The question of necessary and proportional force does not arise in this sort of situation unlike in situations where police officers are confronted with the risk of injury to themselves unless appropriate defensive action is taken such as may be necessary during efforts to quell riots for instance.
Notwithstanding the foregoing being a cardinal principle of policing beatings happen; sometimes to within an inch of the suspect’s life, sometimes at the cost of that life. The question is, sadism aside, why would the police officers concerned expose themselves to potential prosecutions and damages claims.
A belief in their immunity goes some way to explaining the mindset. If police officers get away with such conduct over a period of time without reproach or reprisal, they will over time form the view that their behaviour is not only acceptable it is expected. This does not however explain what it is that prompts such conduct in the first place.
I believe the answer lies in the desire of the police officer to secure a conviction. We cannot discount the fact that in constantly being confronted by criminal acts and their consequences and having to deal with a justice system that may seem to more concerned with rules and procedures rather than justice, the police officer will over time develop a single-minded approach to getting his man. He does not care about how he gets the evidence as much as he does about getting the evidence and the conviction it will lead to. In the mind of the police officer, in doing so he is putting away a bad person, making the world a safer place for it and paving the way for promotion.
While noble in intention the approach leaves much to be desired, particularly when the end result is a custodial death. The fault may however lie in part on a system of evidence that defines itself by relevancy. All evidence is admissible to trial as long as it is relevant. As long as it is not a confession that is in issue (the law requires that to be voluntary) it does not matter that the evidence was the by-product of brutalizing that may in itself be the subject of criminal prosecution.
A solution may as such lie in a rethinking of those principles pertaining to the admissibility of evidence. The exclusionary rule implemented in the courts of the United States is a model worth considering. That rule renders evidence inadmissible if the means by which it was obtained is illegal, such evidence being the “fruit of the poisonous tree”. It goes a long way to remove the incentive to commit the kind of conduct under discussion.
Though in many ways, the refashioning of admissibility principles is really a matter for Parliament, the Malaysian courts have a limited discretion that can be wielded in such a way so as to compel respect for those constitutional guarantees that such conduct violates. This most recent tragedy is reason enough for the courts to start considering the possibilities.
(Malay Mail; 3rd February 2009)
MIS
MIS
Tuesday, January 6, 2009
How To Change The World
How To Change The World
I had heard of Haris Ibrahim even before I met him. Some acquaintances had told me of a lawyer who was seemingly singlehandedly taking on the world in his defence of principle. At the time he was involved in the case of the Besut Four, four individuals who had been convicted by a syariah court and sentenced to three years jail even though they had renounced Islam. His was the titanic struggle that pointing to an unpopular and inconvenient truth always is.
Reading of the case in the newspapers, it had struck me how frustrating it must have been for Haris to have to contend with a system that seemed more concerned with finding excuses than solutions. I wondered what it was that made him do what he did.
I came to see the sense of his choices when I met him for the first time at a Bar Council human rights training session a short while later. I saw a man who embraced the world and whose heart had enough space in it for everyone.
Over the years, we have collaborated on various initiatives, driven by a common belief in Malaysia’s need for an open and inclusive society in which all its children, irrespective of race, religion or culture, can have the freedom to pursue their dreams. It is this common belief that saw us developing a proposal for a commission that would be empowered to enquire into matters of religious harmony. It led us to engaging in a public awareness campaign aimed at creating awareness about worrying constitutional trends. It also prompted us to team up in a number cases that we believed had great bearing on the way things would be and which have ultimately left their marks on this nation.
Haris has become one of the most important civil society voices of this era. His highly influential blog, The People’s Parliament, and the range of civil society initiatives he gave life to over the last two years are breathtaking for their depth of reflection and breadth of reach. He was a prime mover of The Peoples’ Declaration, the Barisan Raykat and a host of other initiatives all of which were aimed at making the rest of us see that we had the power to effect change in our hands.
Before we began to believe in ourselves, Haris already did. March 8th proved his faith not to be misplaced. As much as this was about the soundness of his vision of what could be, it was equally about the correctness of his method. I have had the privilege of seeing some of his ideas come to life and I can say with conviction that nothing happened overnight. They developed one step at a time, from conceptualizing to planning to implementation, everything had its time and place.
The lesson I took from this is that to change the world, you must want it to and then take it one small step at a time.
Any effort aimed at improving our community, no matter how small, is a worthwhile one. Change is the by-product of an accumulation of worthwhile endeavours that may have as individual efforts escaped notice. We might think that one person’s choice not to engage in corrupt practices anymore would not bring endemic corruption to an end. If however there were sufficient numbers of such individuals, a tipping point could be reached and we might see a day when those who bribe stood out as the exception rather than the norm.
Understanding that our every action has a consequence is therefore the key that unlocks the door to change. Revolutions always start small. Consider the signals we send to people around us - family, friends or colleagues - and how those signals will be received. If you are a father and you bribe a police officer in front of your child, what you are in effect saying is that corruption is acceptable no matter how you might try to justify your behaviour. In the same way, if you are racist then those who you influence, even indirectly, will be influenced. It is the less obvious dimensions of what we do on a daily basis that trap us into vicious cycles of destructive conduct.
The change we effected last year was only skin deep. For us to transform ourselves we must confront the question of whether we really want change. We cannot run away from the fact that though the politicians are to blame for a good number of things, the ills that ravage our society stem from a value system that we have allowed to warp over time for our own convenience.
The question for us is what we propose to do about it.
Reading of the case in the newspapers, it had struck me how frustrating it must have been for Haris to have to contend with a system that seemed more concerned with finding excuses than solutions. I wondered what it was that made him do what he did.
I came to see the sense of his choices when I met him for the first time at a Bar Council human rights training session a short while later. I saw a man who embraced the world and whose heart had enough space in it for everyone.
Over the years, we have collaborated on various initiatives, driven by a common belief in Malaysia’s need for an open and inclusive society in which all its children, irrespective of race, religion or culture, can have the freedom to pursue their dreams. It is this common belief that saw us developing a proposal for a commission that would be empowered to enquire into matters of religious harmony. It led us to engaging in a public awareness campaign aimed at creating awareness about worrying constitutional trends. It also prompted us to team up in a number cases that we believed had great bearing on the way things would be and which have ultimately left their marks on this nation.
Haris has become one of the most important civil society voices of this era. His highly influential blog, The People’s Parliament, and the range of civil society initiatives he gave life to over the last two years are breathtaking for their depth of reflection and breadth of reach. He was a prime mover of The Peoples’ Declaration, the Barisan Raykat and a host of other initiatives all of which were aimed at making the rest of us see that we had the power to effect change in our hands.
Before we began to believe in ourselves, Haris already did. March 8th proved his faith not to be misplaced. As much as this was about the soundness of his vision of what could be, it was equally about the correctness of his method. I have had the privilege of seeing some of his ideas come to life and I can say with conviction that nothing happened overnight. They developed one step at a time, from conceptualizing to planning to implementation, everything had its time and place.
The lesson I took from this is that to change the world, you must want it to and then take it one small step at a time.
Any effort aimed at improving our community, no matter how small, is a worthwhile one. Change is the by-product of an accumulation of worthwhile endeavours that may have as individual efforts escaped notice. We might think that one person’s choice not to engage in corrupt practices anymore would not bring endemic corruption to an end. If however there were sufficient numbers of such individuals, a tipping point could be reached and we might see a day when those who bribe stood out as the exception rather than the norm.
Understanding that our every action has a consequence is therefore the key that unlocks the door to change. Revolutions always start small. Consider the signals we send to people around us - family, friends or colleagues - and how those signals will be received. If you are a father and you bribe a police officer in front of your child, what you are in effect saying is that corruption is acceptable no matter how you might try to justify your behaviour. In the same way, if you are racist then those who you influence, even indirectly, will be influenced. It is the less obvious dimensions of what we do on a daily basis that trap us into vicious cycles of destructive conduct.
The change we effected last year was only skin deep. For us to transform ourselves we must confront the question of whether we really want change. We cannot run away from the fact that though the politicians are to blame for a good number of things, the ills that ravage our society stem from a value system that we have allowed to warp over time for our own convenience.
The question for us is what we propose to do about it.
(Malay Mail; 6th January 2009)
MIS
Tuesday, December 30, 2008
A Nation In Progress
A Nation In Progress
The year draws to an end.
A kaleidoscope, 2008 defies description. In the swirl of colours and sounds, chords were struck and themes developed. I imagine an orchestra tuning up, falling silent and then suddenly and majestically playing a symphony of divine beauty.
Each of us an instrument, our voices lent themselves this year to the harmonies that described and cumulatively defined us as a society and a nation. In the silence behind each echo, we felt whom it is that we could be if we wanted to: one nation, one people.
2008 was the year that transformed us. We found our voices.
We may have voted for one candidate or the other, or even for one party in preference to another. We may have regretted our choices or felt vindicated in the time since or even suffered bitter disappointment for expectations not having been fulfilled. Whatever the case, this year we reclaimed democracy and the right to choose.
It does not matter that since March this year we have seen more political bickering than we would have liked to on either side of the divide, and within the ranks on either side. Any vision that emerges from a true democracy is necessarily the product of the synthesis of varied perspectives and opinions. There never is just one side to things and the heated exchanges about key aspects of our lives is something that we should welcome rather than fear. It is only the truths that flow from this crucible that are sufficiently strong to forge the foundations of a lasting civilisation.
Equally, it does not matter that the governments of the federation or the states made decisions that we would have preferred them not to. It does not matter that this politician or that one acted in a manner that we would have preferred him or her not to have. The reality is that for the first time in a very long time we have had these governments and those who form them behave with some regard to what it is we want; such is the power of the ballot box.
Enhanced opposition presence in parliament, the establishment of Pakatan Rakyat governments in five states and a courageous civil society have also allowed us to see all concerned as they really are, warts and all. We have come face to face with the fact that politicians are not very pretty to look at just as they have had to confront the fact that their fates do really lie in our hands.
And as each of us has come to feel more involved, our sense of belonging has heightened and with it our feeling of ownership. It is your Malaysia as much as it is my Malaysia and together, it is our Malaysia. With that awareness has come the understanding that each of us is responsible for what it is that we become. This has been accompanied by a nascent evolution of attitudes and orientation.
This is the breadth and depth of what it is we achieved this year. It has not been about reformasi but rather, transformasi.
The process is however just beginning and we must continue to be vigilant. As we offer thanks for what is that was bestowed upon us this year, let us not forget that there are those who do not want change. Race politics, with its attendant religious elements, and corruption also continue to threaten us. The latter has gravely undermined us through its insidious colonizing of the wider system and the political process. Its mark is evident in every aspect of our public system, so much so that we are now held to ransom by it.
As for race politics, despite it being self-evidently divisive it sadly continues to play out in the continued politicization of race and religion at great cost. Its destructive quality is seen most clearly in the distorting of legitimate efforts to find more effective methods of affirmative action as attempts to undermine the special status of the Malays under the Constitution.
As we move forward, we must commit to taking it upon ourselves to ridding ourselves of these difficulties. It is not sufficient for us to pay lip service to ideals; we must focus and act decisively. We must develop a more rounded understanding of the sensitivities and fears involved as it only through this that we will be able to develop the necessary language to build bridges with.
The light of the new year illuminates the recently cleared footpath that may ultimately lead us to where it is we should be getting. Though the way is treacherous, our belief that we can be all that we want to be will guide us if we let it.
I believe we want it to.
A kaleidoscope, 2008 defies description. In the swirl of colours and sounds, chords were struck and themes developed. I imagine an orchestra tuning up, falling silent and then suddenly and majestically playing a symphony of divine beauty.
Each of us an instrument, our voices lent themselves this year to the harmonies that described and cumulatively defined us as a society and a nation. In the silence behind each echo, we felt whom it is that we could be if we wanted to: one nation, one people.
2008 was the year that transformed us. We found our voices.
We may have voted for one candidate or the other, or even for one party in preference to another. We may have regretted our choices or felt vindicated in the time since or even suffered bitter disappointment for expectations not having been fulfilled. Whatever the case, this year we reclaimed democracy and the right to choose.
It does not matter that since March this year we have seen more political bickering than we would have liked to on either side of the divide, and within the ranks on either side. Any vision that emerges from a true democracy is necessarily the product of the synthesis of varied perspectives and opinions. There never is just one side to things and the heated exchanges about key aspects of our lives is something that we should welcome rather than fear. It is only the truths that flow from this crucible that are sufficiently strong to forge the foundations of a lasting civilisation.
Equally, it does not matter that the governments of the federation or the states made decisions that we would have preferred them not to. It does not matter that this politician or that one acted in a manner that we would have preferred him or her not to have. The reality is that for the first time in a very long time we have had these governments and those who form them behave with some regard to what it is we want; such is the power of the ballot box.
Enhanced opposition presence in parliament, the establishment of Pakatan Rakyat governments in five states and a courageous civil society have also allowed us to see all concerned as they really are, warts and all. We have come face to face with the fact that politicians are not very pretty to look at just as they have had to confront the fact that their fates do really lie in our hands.
And as each of us has come to feel more involved, our sense of belonging has heightened and with it our feeling of ownership. It is your Malaysia as much as it is my Malaysia and together, it is our Malaysia. With that awareness has come the understanding that each of us is responsible for what it is that we become. This has been accompanied by a nascent evolution of attitudes and orientation.
This is the breadth and depth of what it is we achieved this year. It has not been about reformasi but rather, transformasi.
The process is however just beginning and we must continue to be vigilant. As we offer thanks for what is that was bestowed upon us this year, let us not forget that there are those who do not want change. Race politics, with its attendant religious elements, and corruption also continue to threaten us. The latter has gravely undermined us through its insidious colonizing of the wider system and the political process. Its mark is evident in every aspect of our public system, so much so that we are now held to ransom by it.
As for race politics, despite it being self-evidently divisive it sadly continues to play out in the continued politicization of race and religion at great cost. Its destructive quality is seen most clearly in the distorting of legitimate efforts to find more effective methods of affirmative action as attempts to undermine the special status of the Malays under the Constitution.
As we move forward, we must commit to taking it upon ourselves to ridding ourselves of these difficulties. It is not sufficient for us to pay lip service to ideals; we must focus and act decisively. We must develop a more rounded understanding of the sensitivities and fears involved as it only through this that we will be able to develop the necessary language to build bridges with.
The light of the new year illuminates the recently cleared footpath that may ultimately lead us to where it is we should be getting. Though the way is treacherous, our belief that we can be all that we want to be will guide us if we let it.
I believe we want it to.
(Malay Mail; 30th December 2008)
MIS
Happy New Year to all.
MIS
Happy New Year to all.
Tuesday, December 23, 2008
Through The Looking Glass
Through The Looking Glass
Living in Malaysia, one gets used to the farcical and ludicrous. Daily encounters in the media with those who claim to lead us have made many of us resign ourselves to the fact that life here in Bolehland (to borrow the delightful moniker from Martin Jalleh) is very much an acid-trip down a rabbit hole. So much so that one cannot help but wonder whether Lewis Carroll would have been bestowed a title had he wandered onto our shores; “Tan Sri” perhaps, considering how keenly he was able to visualize the Malaysia that would be.
This year, the award for most so would have to go to the Royal Malaysian Police. It outgunned all other candidates with its “Save The Children” themed efforts this past month. That and the “we detained her under the ISA to protect her” gambit in September, formulated with some assistance from the Home Minister, sealed it for me.
One has to acknowledge the sheer gumption of those who made the decisions to go with those justifications despite the obvious disparagement they would result in. Or could it be that we have misunderstood what was really a display of compassion, laughter being the best medicine for the many aches and pains we suffer from. Whatever the case, hats off to the men in blue for having out-farced all others, not an easy task looking at the range of candidates in this year of “Zero Opposition”.
Lest it be said that I am being cruel and cynical, allow me to say that I am not. I am in truth at a total loss as to how to comprehend why the force continues to position itself in the way it does when there is no need to. How the scenarios that have presented themselves this year - from journalistic expression to candle-light vigils of solidarity to road-shows aimed at promoting a fair, just and compassionate society, to name a few – could be perceived as being threatening of public order is mystifying.
I wrote an open letter in this column some time ago. In it I expressed the view that the force is not intended to police thought, the point being made in light of the way public assemblies were being regulated. It seemed to me then that senior police officers were taking the view that assemblies were not threats to public order if they were supportive of governmental positions. They however were seemingly such if they expressed viewpoints that could be perceived as being critical of the government.
Events since the letter was published, in particular the posturing over the blatant intimidation of those involved in the commendable JERIT campaign for transformation, have gone far to convince me that my surmise was in fact true. There is no other way to explain the inconsistency on the part of the force.
Which brings me to my point; the force needs to remind itself that we are allowed to think in Malaysia. The Constitution guarantees this, just as it allows us to express our thoughts and does not in any way limit us to saying things that are supportive of the government of the day. In fact, Malaysians can say what they want; if they however breach a law in saying what they do, they can be punished. That is why there is no law that prohibits speech; those laws only criminalize certain types of statements. There is as such clearly no basis for preempting expression.
This however begs the question of why the force is taking it upon itself to police thought in the way it does. Allowing access only to viewpoints that are supportive of leadership, and the half-truths this allows for, is propaganda. Is the system so far gone that the force has become a moving part in the propaganda machine of the State?
I would like to think not. The Royal Malaysian Police plays an invaluable role in the protection and promotion of democracy, in part through the fair and impartial enforcing of public order and security where this is necessary. For it to be able to fulfill its role, public confidence in the institution is essential. Sadly, justifications like those that we have been offered for unjustifiable and repressive action does not assist in this cause.
The truth is that police officers have more important things to concern themselves with than advancing petty political interests. Their jobs are difficult as it is and chasing activists, whether on bicycles or not, seems to be an unnecessary diversion of resources that are already stretched as taut as a drum skin.
Public assemblies really need little or no regulation. Malaysians have shown themselves to be capable of gathering and expressing their views peacefully and without rioting. The ceramah-ceramah that took place in the run up to March 8th and the various peaceful assemblies that have taken place since then, whether supportive of the government or pro-transformation, prove this.
And if the concern is not so much about those participating in the assemblies but rather instigators or agitators that might turn a situation ugly, then the force should be looking out for those disrupters of democracy rather than clamping down on democracy itself.
That is after all how it is supposed to be on this side of the looking glass.
This year, the award for most so would have to go to the Royal Malaysian Police. It outgunned all other candidates with its “Save The Children” themed efforts this past month. That and the “we detained her under the ISA to protect her” gambit in September, formulated with some assistance from the Home Minister, sealed it for me.
One has to acknowledge the sheer gumption of those who made the decisions to go with those justifications despite the obvious disparagement they would result in. Or could it be that we have misunderstood what was really a display of compassion, laughter being the best medicine for the many aches and pains we suffer from. Whatever the case, hats off to the men in blue for having out-farced all others, not an easy task looking at the range of candidates in this year of “Zero Opposition”.
Lest it be said that I am being cruel and cynical, allow me to say that I am not. I am in truth at a total loss as to how to comprehend why the force continues to position itself in the way it does when there is no need to. How the scenarios that have presented themselves this year - from journalistic expression to candle-light vigils of solidarity to road-shows aimed at promoting a fair, just and compassionate society, to name a few – could be perceived as being threatening of public order is mystifying.
I wrote an open letter in this column some time ago. In it I expressed the view that the force is not intended to police thought, the point being made in light of the way public assemblies were being regulated. It seemed to me then that senior police officers were taking the view that assemblies were not threats to public order if they were supportive of governmental positions. They however were seemingly such if they expressed viewpoints that could be perceived as being critical of the government.
Events since the letter was published, in particular the posturing over the blatant intimidation of those involved in the commendable JERIT campaign for transformation, have gone far to convince me that my surmise was in fact true. There is no other way to explain the inconsistency on the part of the force.
Which brings me to my point; the force needs to remind itself that we are allowed to think in Malaysia. The Constitution guarantees this, just as it allows us to express our thoughts and does not in any way limit us to saying things that are supportive of the government of the day. In fact, Malaysians can say what they want; if they however breach a law in saying what they do, they can be punished. That is why there is no law that prohibits speech; those laws only criminalize certain types of statements. There is as such clearly no basis for preempting expression.
This however begs the question of why the force is taking it upon itself to police thought in the way it does. Allowing access only to viewpoints that are supportive of leadership, and the half-truths this allows for, is propaganda. Is the system so far gone that the force has become a moving part in the propaganda machine of the State?
I would like to think not. The Royal Malaysian Police plays an invaluable role in the protection and promotion of democracy, in part through the fair and impartial enforcing of public order and security where this is necessary. For it to be able to fulfill its role, public confidence in the institution is essential. Sadly, justifications like those that we have been offered for unjustifiable and repressive action does not assist in this cause.
The truth is that police officers have more important things to concern themselves with than advancing petty political interests. Their jobs are difficult as it is and chasing activists, whether on bicycles or not, seems to be an unnecessary diversion of resources that are already stretched as taut as a drum skin.
Public assemblies really need little or no regulation. Malaysians have shown themselves to be capable of gathering and expressing their views peacefully and without rioting. The ceramah-ceramah that took place in the run up to March 8th and the various peaceful assemblies that have taken place since then, whether supportive of the government or pro-transformation, prove this.
And if the concern is not so much about those participating in the assemblies but rather instigators or agitators that might turn a situation ugly, then the force should be looking out for those disrupters of democracy rather than clamping down on democracy itself.
That is after all how it is supposed to be on this side of the looking glass.
(Malay Mail; 23rd December 2008)
MIS
Tuesday, December 9, 2008
Respecting Change
Respecting Change
A friend of mine told me recently that he was considering home-schooling his two sons. A battle with the private international school where his sons are enrolled and fruitless encounters with Ministry officials who were either incapable of seeing his point of view or could not empathise nor appreciate his lack of options had brought him to that point. It could be that to many a civil servant, private schooling is an elitist luxury that one purchases at the expense of its ills and pains. If so, this overlooks the reality that for many in this country private schooling is not about snob appeal but rather a necessity in an increasingly competitive world.
Many a parent is caught in a conflict between wanting to avail themselves of public services, be they education, medical or otherwise, on the one hand, and doing the right thing for those they love on the other. They, like many others here in Malaysia, have been forced into these positions of conflict by a public system that has been increasingly undermined by political and vested interests despite the obvious consequences.
It is evident that for a nation to progress sustainably into the future, the pillars of the nation must be protected and continuously strengthened. Of these, much has been said of the Judiciary and the Legislature. We should however not underrate the significance of the civil service. It is crucial for being the engine that impels the nation in the direction it should. Civil servants serving in a diverse range of capacities from teachers, administrators, lawyers, doctors, engineers, surveyors, geologists and so on provide invaluable input and service. They reach far into this nation’s heart, its people, and provide the nurturing and guidance that keeps it safe and beating.
Civil servants oversee every aspect of the system from schools to hospitals to hill developments. It is therefore crucial that those who take on the responsibility of administration be suitably qualified for their jobs. This is both a matter of competence and integrity. There is no excuse for not having the best possible persons for such positions, be they teachers or director generals of Ministries.
Even a cursory glance at modern Malaysia would show that this is sadly not the case. If it were otherwise, we would not be stuck in the rut that we are. The nation lacks sparkle, energy and drive. Hamster like, we run on the spot in our wheels of misfortune as the system, such as it is, wears itself down at the expense of the future we could have. Can we really say that we have the best people for the job in the various ministries, departments and agencies that we rely on to make sure this country runs at the optimum level in all respects? I think not.
It seems that the only employer that does not complain about poor levels of competence, at least publicly, is the government. This is understandable. The civil service has always been potentially useful as an employment bank, a direct means of furthering agendas, for control and, for all these reasons, winning votes. Somewhere along the way, that potential was harnessed, and welfare and privilege elements exploited to justify abuse.
The notion that employment in the civil service is an aspect of welfare or privilege is self-serving and dangerous. The civil service is so inextricably linked with our future, giving meaning to the adage “we reap what we sow”. This is not just about the alarming number of unemployable local graduates and school leavers, as worrying as that is, it is also about bad decision making with sometimes catastrophic results, tangible and intangible, and other equally significant aspects.
Things are definitely not as they should be in this nation. We are slipping far behind as we drown in a dizzying cocktail of lackadaisical attitudes, a total lack of imagination, mind-numbing incompetence and corruption. Mediocrity has become our standard. And though we rush to justify and distract from failings, be it for having allowed our tertiary institutions to slip into the “not worth bothering” section of the rankings or the increase in corruption, this is not addressing the problems.
Change became a catchword this year with even UMNO elites claiming it for their banner. If we are sincere about transforming Malaysia, the alarming state of the civil service must be addressed.
For this, ground-rules must be set and respected. Politicians must learn to respect the intent underlying civil service regulations that restrict political involvement: civil servants must be left alone to do what needs to be done. They do not serve political parties; they serve the government of the day. Additionally, key sectors of the civil service must be made impermeable to appointments based on race quotas and be defined only by appointments based on of high levels of competence and integrity.
Above all, politicians must learn to respect the civil service for the fundamental role it plays in nation building. Change is in its hands.
(Malay Mail; 9th December 2008)
MIS
Tuesday, November 25, 2008
Striking A Pose
Striking A Pose (Of Crime And Punishment)
THE recent ruling by the National Fatwa Council on yoga has resulted in a range of responses, from dismay to unqualified and devoted acceptance. I must admit to bewilderment in part because of all the pressing issues that confront Muslims in this country, many of which directly pertain to matters of social justice, yoga was one of the least expected amongst those that demanded urgency. It would have been useful for the Council to have directed its mind and resources to matters of faith that complement efforts aimed at the nurturing of an inclusive, just and compassionate society.
That being said, a ruling has been made. I say ruling because until and unless the ruling is endorsed by the fatwa committees of the various states and the Federal Territories and then gazetted (published in the official government journal), the ruling is not a fatwa.
The administration of Islam is a matter that falls within the exclusive purview of the state under the Federal Constitution and, as such, where fatwas are concerned within the sole domain of the state fatwa committee. In this context the National Fatwa Council allows for policy consultation at a federal level to facilitate a more unified vision of the practice of Islam, each state being legally entitled to pursue its own vision.
Within the state, it is for the Majlis Agama to take steps to gazette a ruling of the state fatwa committee. The resultant fatwa is prescribed by the respective state law as being binding on all Muslims as a dictate of Islam. They are duty bound to abide by and uphold the fatwa unless permitted by Islamic law to depart from it in matters of personal observance, belief or opinion. The burden of establishing that an exemption is permissible is however on the individual as state Islamic criminal law provides that acting contrary to fatwa is a criminal offence.
It is significant that despite a fatwa being for all purposes and intents a ‘law’ the breach of which is punishable, there is no need for rulings to be referred to the State Legislative Assembly before they are gazetted and become binding as fatwa. Seen in this light, it could be said that the Majlis Agama and the fatwa committee are therefore legislating.
The pressing question arises as to how this can be sanctioned in view of our Constitution having put in place a system of law-making centred on legislatures constituted by duly elected representatives. The making of binding fatwa in the manner provided for is a glaring anomaly from the dictates of the democratic processes enshrined in the Federal Constitution.
It is this very concern that drove a team of us to taking up two challenges in the Federal Court involving persons allegedly having been involved in deviationist Islam not too long ago. Amongst other things, our clients had been charged with acting contrary to fatwa; charges that for the reasons explained above took us to heart of law making.
In its decision earlier this year, the Federal Court disagreed with us and upheld the validity of the fatwa making process. With respect, in so concluding, the Federal Court in effect allowed for a subverting of Parliament, and the accountability the institution is intended to promote, in this extremely crucial aspect of the constitutional framework by giving licence to the religious bureaucracy to autonomously fashion a parallel system of law outside the established legislative structure and the supervision it envisages. I clarify here that I do not intend to cast aspersions on the qualifications, character or aims of the members of the respective majlis-majlis and fatwa committees. The implications of the decision of the Federal Court are however not easily reconciled with the very purpose of legislative power being constitutionally entrenched in the legislature, and the value of this entrenching to wider society.
The rakyat elected representatives to the legislature to ensure that our respective views were presented and taken into consideration as well as to allow us to have oversight over the processes that ultimately shape our lives. Our representatives should be making law as well as overseeing its making.
Legislature cannot be permitted to delegate its essential legislative function in any field, even to a well-intentioned specialist committee. This is not just about Islam; it is equally about all the other fields that specialist committees might be created for in the same way.
The limited numbers of a committee cannot compare to the full weight of the august houses of Parliament. That some of those in parliament may be of questionable competence, some might say sanity, is of no relevance as it is the underlying principle that is in issue. Allowing for a divesting of legislative power and control is most certainly a state of affairs that will wholly undermine democracy and true nation building.
Consider it from a different perspective. Would a State Legislative Assembly have enacted the offence of practicing yoga? I have my doubts, not least for the heated debates that the tabling of a bill to create the offence would have resulted in. If this were the case, then how is it that the system allows for the criminalising of yoga by the ruling of a committee and the mere gazetting of that ruling?
On the other hand, if a state fatwa committee were to produce an expert opinion that was then made the basis of a bill tabled in legislature, would it not be conceivable that with logic and reason, the bill would be carried? More work might have to be done, as explanations would have to be made that much clearer and factual basis of concerns set out coherently. However, considering that laws are being made, these are necessary prerequisites in any event for such grave efforts.
In the meanwhile I wait with bated breath for the next fatwa. Who knows, it may be about corruption.
MIS
That being said, a ruling has been made. I say ruling because until and unless the ruling is endorsed by the fatwa committees of the various states and the Federal Territories and then gazetted (published in the official government journal), the ruling is not a fatwa.
The administration of Islam is a matter that falls within the exclusive purview of the state under the Federal Constitution and, as such, where fatwas are concerned within the sole domain of the state fatwa committee. In this context the National Fatwa Council allows for policy consultation at a federal level to facilitate a more unified vision of the practice of Islam, each state being legally entitled to pursue its own vision.
Within the state, it is for the Majlis Agama to take steps to gazette a ruling of the state fatwa committee. The resultant fatwa is prescribed by the respective state law as being binding on all Muslims as a dictate of Islam. They are duty bound to abide by and uphold the fatwa unless permitted by Islamic law to depart from it in matters of personal observance, belief or opinion. The burden of establishing that an exemption is permissible is however on the individual as state Islamic criminal law provides that acting contrary to fatwa is a criminal offence.
It is significant that despite a fatwa being for all purposes and intents a ‘law’ the breach of which is punishable, there is no need for rulings to be referred to the State Legislative Assembly before they are gazetted and become binding as fatwa. Seen in this light, it could be said that the Majlis Agama and the fatwa committee are therefore legislating.
The pressing question arises as to how this can be sanctioned in view of our Constitution having put in place a system of law-making centred on legislatures constituted by duly elected representatives. The making of binding fatwa in the manner provided for is a glaring anomaly from the dictates of the democratic processes enshrined in the Federal Constitution.
It is this very concern that drove a team of us to taking up two challenges in the Federal Court involving persons allegedly having been involved in deviationist Islam not too long ago. Amongst other things, our clients had been charged with acting contrary to fatwa; charges that for the reasons explained above took us to heart of law making.
In its decision earlier this year, the Federal Court disagreed with us and upheld the validity of the fatwa making process. With respect, in so concluding, the Federal Court in effect allowed for a subverting of Parliament, and the accountability the institution is intended to promote, in this extremely crucial aspect of the constitutional framework by giving licence to the religious bureaucracy to autonomously fashion a parallel system of law outside the established legislative structure and the supervision it envisages. I clarify here that I do not intend to cast aspersions on the qualifications, character or aims of the members of the respective majlis-majlis and fatwa committees. The implications of the decision of the Federal Court are however not easily reconciled with the very purpose of legislative power being constitutionally entrenched in the legislature, and the value of this entrenching to wider society.
The rakyat elected representatives to the legislature to ensure that our respective views were presented and taken into consideration as well as to allow us to have oversight over the processes that ultimately shape our lives. Our representatives should be making law as well as overseeing its making.
Legislature cannot be permitted to delegate its essential legislative function in any field, even to a well-intentioned specialist committee. This is not just about Islam; it is equally about all the other fields that specialist committees might be created for in the same way.
The limited numbers of a committee cannot compare to the full weight of the august houses of Parliament. That some of those in parliament may be of questionable competence, some might say sanity, is of no relevance as it is the underlying principle that is in issue. Allowing for a divesting of legislative power and control is most certainly a state of affairs that will wholly undermine democracy and true nation building.
Consider it from a different perspective. Would a State Legislative Assembly have enacted the offence of practicing yoga? I have my doubts, not least for the heated debates that the tabling of a bill to create the offence would have resulted in. If this were the case, then how is it that the system allows for the criminalising of yoga by the ruling of a committee and the mere gazetting of that ruling?
On the other hand, if a state fatwa committee were to produce an expert opinion that was then made the basis of a bill tabled in legislature, would it not be conceivable that with logic and reason, the bill would be carried? More work might have to be done, as explanations would have to be made that much clearer and factual basis of concerns set out coherently. However, considering that laws are being made, these are necessary prerequisites in any event for such grave efforts.
In the meanwhile I wait with bated breath for the next fatwa. Who knows, it may be about corruption.
(Malay Mail; 25th November 2008)
MIS
Subsequent to this article being submitted for publication yesterday, the Perak State Religious Department has acknowledged that it is necessary for His Highness the Sultan of Perak and the state Fatwa Committee to consider the matter before the policy can be implemented in the state of Perak. The Sultan of Selangor has also indicated reservations (see here). The gazetting of a fatwa requires the assent of the Sultan.
Tuesday, November 18, 2008
Policing The Constitution
Policing The Constitution
(An Open Letter To The Inspector General of Police)
Dear IGP,
Let me firstly acknowledge that yours is not an easy responsibility to bear. The task of policing is certainly a difficult one. It calls for the fine balancing of the many different interests and expectations that will allow for security without undue compromise of the freedoms that mark this nation as a democracy. Far too often, the choices that have to be made are those that will be remembered more for their being unpopular than their having been effective.
As a lawyer, it strikes me that there is a way to make navigating these difficult waters easier, if only slightly. The power to police stems as it does from law enacted for that purpose. The Police Act and the Criminal Procedure Code are not only the maps by which you chart your course, they are also the justification you offer for actions that might be viewed as unfair. After all, the Royal Malaysian Police does not legislate; it merely enforces the will of the legislature as codified into the statute books.
This approach could also extend to areas where the law vests police officers with a discretion the exercise of which is a matter than can only be determined by reference to the particular circumstances of a given situation. Though in these cases the particular legal provision in issue may be silent as to how it is a police officer is to act, it should not be overlooked that the Constitution is the supreme law of the land. In enumerating the fundamental liberties of citizens, it has provided the context and limits of enforcement. Seen in this light, it become evident that the primary role of the police force is to ensure that the constitutional framework is maintained as it was at all times intended to be: one that guarantees the freedom for Malaysians to aspire to be all that they are without fear of reprisal.
It is from this perspective that I question the wisdom of your policy on the matter of public assemblies.
I acknowledge that the legislature has by virtue of the Police Act imposed the requirement of permits for gatherings in public places on pain of sanction. I note however that the police force has taken it upon itself to exclude certain types of gatherings from the requirements of the Police Act. This seizing of discretion, for it could be said that the statute allows for no such discretion, is understandable for were it to be otherwise we would see many a family arrested for picnicking in public parks. By any definition they would constitute the assembly of three or more persons in a public place the Police Act targets.
This however makes the point that it is not necessarily the case that all gatherings in public places without permits are unlawful assemblies; it is only those that the police force deems such that are. Experience shows that this has however been markedly selective.
Compare, for instance, the experience of protestors outside the Bar Council and UITM students demonstrating against the admission of non-Malays this August with the treatment of participants in the anti-ISA vigil held earlier this month. While the third event had dispersed, spontaneous peaceful gatherings of small groups of citizens were acted against with force and culminated in numerous arrests. Though the earlier two events were by any comparison that much more aggressive, no action was taken despite the protest outside the Bar Council having disrupted a closed-door event.
Circumstance suggests that your officers believe there to be basis for their action and for treating events differently from one another. Objective scrutiny point to that basis being an apparently misguided notion as to what it is that constitutes a threat to public order. It appears that the third event, and others like it, was perceived as being disruptive of public order not so much for the event itself but rather the anti-ISA message it sought to convey. It seems that this was considered to be dangerous for its seemingly anti-establishment sentiment, a conclusion reinforced by conditions imposed by the police for a similar event held last Sunday. These included prohibitions on the lighting of candles, the wearing of anti-ISA t-shirts and the making of any statements supportive of the release of detainees.
In contrast, the first two events did not convey any such sentiment.
If this is in fact the case, that policy needs to be reexamined. The approach it entails is grossly unfair. It also exposes the police force to attack and criticism in a manner that is unnecessarily undermining of respect for the institution at a time when more needs to be done to shore up public confidence
It is not for the Royal Malaysian Police to police thought and speech through preemptive enforcement; that is not its fight. Malaysians are guaranteed the freedom of thought in as much as they are guaranteed the right to express themselves, either alone or in peaceable assembly with others. The nature of views expressed is not a matter for the police force to concern itself with; ensuring that Malaysians are free to avail themselves of the guarantees afforded to them under the Constitution to live out democracy as it was intended is.
Let me firstly acknowledge that yours is not an easy responsibility to bear. The task of policing is certainly a difficult one. It calls for the fine balancing of the many different interests and expectations that will allow for security without undue compromise of the freedoms that mark this nation as a democracy. Far too often, the choices that have to be made are those that will be remembered more for their being unpopular than their having been effective.
As a lawyer, it strikes me that there is a way to make navigating these difficult waters easier, if only slightly. The power to police stems as it does from law enacted for that purpose. The Police Act and the Criminal Procedure Code are not only the maps by which you chart your course, they are also the justification you offer for actions that might be viewed as unfair. After all, the Royal Malaysian Police does not legislate; it merely enforces the will of the legislature as codified into the statute books.
This approach could also extend to areas where the law vests police officers with a discretion the exercise of which is a matter than can only be determined by reference to the particular circumstances of a given situation. Though in these cases the particular legal provision in issue may be silent as to how it is a police officer is to act, it should not be overlooked that the Constitution is the supreme law of the land. In enumerating the fundamental liberties of citizens, it has provided the context and limits of enforcement. Seen in this light, it become evident that the primary role of the police force is to ensure that the constitutional framework is maintained as it was at all times intended to be: one that guarantees the freedom for Malaysians to aspire to be all that they are without fear of reprisal.
It is from this perspective that I question the wisdom of your policy on the matter of public assemblies.
I acknowledge that the legislature has by virtue of the Police Act imposed the requirement of permits for gatherings in public places on pain of sanction. I note however that the police force has taken it upon itself to exclude certain types of gatherings from the requirements of the Police Act. This seizing of discretion, for it could be said that the statute allows for no such discretion, is understandable for were it to be otherwise we would see many a family arrested for picnicking in public parks. By any definition they would constitute the assembly of three or more persons in a public place the Police Act targets.
This however makes the point that it is not necessarily the case that all gatherings in public places without permits are unlawful assemblies; it is only those that the police force deems such that are. Experience shows that this has however been markedly selective.
Compare, for instance, the experience of protestors outside the Bar Council and UITM students demonstrating against the admission of non-Malays this August with the treatment of participants in the anti-ISA vigil held earlier this month. While the third event had dispersed, spontaneous peaceful gatherings of small groups of citizens were acted against with force and culminated in numerous arrests. Though the earlier two events were by any comparison that much more aggressive, no action was taken despite the protest outside the Bar Council having disrupted a closed-door event.
Circumstance suggests that your officers believe there to be basis for their action and for treating events differently from one another. Objective scrutiny point to that basis being an apparently misguided notion as to what it is that constitutes a threat to public order. It appears that the third event, and others like it, was perceived as being disruptive of public order not so much for the event itself but rather the anti-ISA message it sought to convey. It seems that this was considered to be dangerous for its seemingly anti-establishment sentiment, a conclusion reinforced by conditions imposed by the police for a similar event held last Sunday. These included prohibitions on the lighting of candles, the wearing of anti-ISA t-shirts and the making of any statements supportive of the release of detainees.
In contrast, the first two events did not convey any such sentiment.
If this is in fact the case, that policy needs to be reexamined. The approach it entails is grossly unfair. It also exposes the police force to attack and criticism in a manner that is unnecessarily undermining of respect for the institution at a time when more needs to be done to shore up public confidence
It is not for the Royal Malaysian Police to police thought and speech through preemptive enforcement; that is not its fight. Malaysians are guaranteed the freedom of thought in as much as they are guaranteed the right to express themselves, either alone or in peaceable assembly with others. The nature of views expressed is not a matter for the police force to concern itself with; ensuring that Malaysians are free to avail themselves of the guarantees afforded to them under the Constitution to live out democracy as it was intended is.
Malik Imtiaz Sarwar
(Malay Mail; 18th November 2008)
MIS
Tuesday, November 11, 2008
Keeping The Faith
Keeping The Faith
Over the weekend, the blogosphere was filled to the brim with posts and comments concerning Justice Syed Ahmad Helmy’s decision to release Raja Petra.
Many expressed surprise at the Judge having had the fortitude to rule as he did, going against the grain not being the easiest of options. Some were unfeelingly dismissive of the decision and its significance to Petra and his family, and to society as a whole. One of the theories advanced was that the decision to release Petra was engineered by Prime Minister Abdullah Badawi as part of a campaign of political maneuvering against Deputy Prime Minister Najib Razak. Others cynically suggested that it was typical of the lawyers involved, myself included, to have made self-servingly positive statements concerning the Judge and the decision as we had won the case.
These comments made me wonder. Have we really been so thoroughly wrung that all hope and optimism have been bled from us? Are we so broken that we are incapable of appreciating the tiny and not so tiny miracles that happen in our lives every day?
Last Friday, as the first sob of joy escaped captivity in a courtroom that had been stilled by uncertainty, as the first tears of redemption rolled down cheeks that had been numbed by countless disappointments, I was reminded again that it is our collective faith in what is right that has consistently forged the way forward. As the cheers erupted from the many Malaysian throats present, and the Judge attempted to restore order, I understood that as our ties together as a community have strengthened so too has that faith. I saw, as Alice Walker pointed out recently to Barack Obama, it is we who we have been waiting for.
It does not matter what those who scoff say, justice was done last Friday.
No matter what we call it or how we dress it up, detention without trial is cruel. Stripped of everything, a human being has only his or her dignity and conscience. It is to these most fundamental of elements that the right to fair trial and the presumption of innocence speak. It is these elements that preventive detention aims to destroy. They are torn apart in the same way that the lives of those detained and their families are.
The due process of law ensures that the number of people who get shut away erroneously is small. A person charged with a crime in this country has at least two tiers of appeal. His conviction would have been scrutinized at least three times by several judges. A person detained without trial is detained with the stroke of a pen wielded by a Minister who is presumed to be objective enough to do what he needs to do in a way that ensures there is no possibility of error.
Where is justice? If the reasoning of the Minister is to be accepted, it does not enter the picture.
The Minister contends that detentions are a matter left by the law entirely to his subjective discretion. This means, he reasons, if he decides that an individual is a threat to national security, a court has no option but to accept this as a truth. This being the case, there is no need for the Minister’s conclusion to be justified. Extrapolating this analysis, the Minister is not required to argue that the justice of the case favours continued detention without trial. Justice is as such not a feature of the analysis and injustice an irrelevant consideration.
The Judge obviously felt otherwise. His observation, made in the course of his reasoning, that the law could not be understood as empowering the Minister to arbitrarily detain individuals for reasons that had nothing to do with the statute such as, for instance, simply having red hair, was illuminating.
Was his reasoning correct? I would like to think so. The Judge merely applied the law as framed by the legislature and in doing so gave expression to the intention of the drafters of the law: limiting preventive detention to the kind of exceptional “terror” situations described. The Federal Court may however take a different view, just as it may of the points of submission we made that the Judge disagreed with. We will get to argue these again if an appeal is lodged.
Was I happy that the Judge decided the way he did? I would have been foolish not to be, not least for Petra being reunited with his family. Do I think positively of this Judge? Most certainly for having shown me that it is not audacious for any of us to hope as we do. Would I have been disappointed if we lost? I would have but far less than if the Judge had not given us the excellent hearing he did. As we left court on the day we presented arguments, all of us understood that we had had the hearing that all of us wanted: a fair one.
And to those who suggest that the Judge was influenced, I say this. You do a disservice to yourself and to this nation. Had you been in court, you would have seen as we did a Judge keeping the faith.
(Malik Imtiaz Sarwar was counsel to Raja Petra Kamarudin. He is the current President of the National Human Rights Society and blogs at www.malikimtiaz.blogspot.com)
Many expressed surprise at the Judge having had the fortitude to rule as he did, going against the grain not being the easiest of options. Some were unfeelingly dismissive of the decision and its significance to Petra and his family, and to society as a whole. One of the theories advanced was that the decision to release Petra was engineered by Prime Minister Abdullah Badawi as part of a campaign of political maneuvering against Deputy Prime Minister Najib Razak. Others cynically suggested that it was typical of the lawyers involved, myself included, to have made self-servingly positive statements concerning the Judge and the decision as we had won the case.
These comments made me wonder. Have we really been so thoroughly wrung that all hope and optimism have been bled from us? Are we so broken that we are incapable of appreciating the tiny and not so tiny miracles that happen in our lives every day?
Last Friday, as the first sob of joy escaped captivity in a courtroom that had been stilled by uncertainty, as the first tears of redemption rolled down cheeks that had been numbed by countless disappointments, I was reminded again that it is our collective faith in what is right that has consistently forged the way forward. As the cheers erupted from the many Malaysian throats present, and the Judge attempted to restore order, I understood that as our ties together as a community have strengthened so too has that faith. I saw, as Alice Walker pointed out recently to Barack Obama, it is we who we have been waiting for.
It does not matter what those who scoff say, justice was done last Friday.
No matter what we call it or how we dress it up, detention without trial is cruel. Stripped of everything, a human being has only his or her dignity and conscience. It is to these most fundamental of elements that the right to fair trial and the presumption of innocence speak. It is these elements that preventive detention aims to destroy. They are torn apart in the same way that the lives of those detained and their families are.
The due process of law ensures that the number of people who get shut away erroneously is small. A person charged with a crime in this country has at least two tiers of appeal. His conviction would have been scrutinized at least three times by several judges. A person detained without trial is detained with the stroke of a pen wielded by a Minister who is presumed to be objective enough to do what he needs to do in a way that ensures there is no possibility of error.
Where is justice? If the reasoning of the Minister is to be accepted, it does not enter the picture.
The Minister contends that detentions are a matter left by the law entirely to his subjective discretion. This means, he reasons, if he decides that an individual is a threat to national security, a court has no option but to accept this as a truth. This being the case, there is no need for the Minister’s conclusion to be justified. Extrapolating this analysis, the Minister is not required to argue that the justice of the case favours continued detention without trial. Justice is as such not a feature of the analysis and injustice an irrelevant consideration.
The Judge obviously felt otherwise. His observation, made in the course of his reasoning, that the law could not be understood as empowering the Minister to arbitrarily detain individuals for reasons that had nothing to do with the statute such as, for instance, simply having red hair, was illuminating.
Was his reasoning correct? I would like to think so. The Judge merely applied the law as framed by the legislature and in doing so gave expression to the intention of the drafters of the law: limiting preventive detention to the kind of exceptional “terror” situations described. The Federal Court may however take a different view, just as it may of the points of submission we made that the Judge disagreed with. We will get to argue these again if an appeal is lodged.
Was I happy that the Judge decided the way he did? I would have been foolish not to be, not least for Petra being reunited with his family. Do I think positively of this Judge? Most certainly for having shown me that it is not audacious for any of us to hope as we do. Would I have been disappointed if we lost? I would have but far less than if the Judge had not given us the excellent hearing he did. As we left court on the day we presented arguments, all of us understood that we had had the hearing that all of us wanted: a fair one.
And to those who suggest that the Judge was influenced, I say this. You do a disservice to yourself and to this nation. Had you been in court, you would have seen as we did a Judge keeping the faith.
(Malik Imtiaz Sarwar was counsel to Raja Petra Kamarudin. He is the current President of the National Human Rights Society and blogs at www.malikimtiaz.blogspot.com)
MIS
Tuesday, November 4, 2008
Finding Equilibrium
Finding Equilibrium
Zaid Ibrahim’s impassioned call for a rejection of race politics last Friday at the LawAsia conference is one that deserves its place in history. His plea for the restoration of democracy and the Rule of Law has reverberated throughout the nation.
This is not surprising. Zaid’s message is rooted in an obviously deep and heartfelt commitment to the nation and the interests of all its citizens. Where the Malays are concerned, he is strident in his rejection of policies that have left the community struggling against a siege mentality that robs it of its ability to meet the challenges of a globalizing world. As he observes, the “Malays are now a clear majority in numbers. The fear of their being out numbered is baseless; they are not under siege. The institutions of government are such that the Malays are effectively represented, and the there is no way the interest of the Malays can be taken away other than through their own weakness and folly.”
Equally forceful in his defence of non-Malay interest, Zaid laments attempts by politicians to do away with a social contract that guarantees “equality and the promise of the Rule of Law” in favour of one that promotes a supremacist ideology that ultimately serves only the interests of an elite. This, he opines, has left the nation deeply divided and cut off from the democracy and Rule of Law so vital for the sustainable and inclusive development that all Malaysians need, irrespective of race and religion.
Put another way, Zaid has given voice to what it is most Malaysians think: that we need to be united to face the future. The founders of this nation understood we could, appreciating that there was no reason for fear and that we had every reason for mutual respect and dignity. Fear mongering has however kept us apart and from seeing the threats that confront us, and what we need to do to counter them.
Zaid’s message is persuasive for its simplicity and self-evident truth. He must be credited for having been able to say what had to be said, as it needed to be said.
If there is any doubt as to the legitimacy of the viewpoint expressed, then we need only consider the reactions from senior UMNO members entrenched in the leadership structure of the party. These reactions not only make it evident that Zaid hit the nail on the head, they also show why it is UMNO and the Barisan Nasional need to seriously reconsider how to make themselves relevant. Two responses are illustrative.
Perlis UMNO liaison chief and former Menteri Besar Datuk Seri Shahidan Kassim had this to say, according to media reports, “Zaid should repent. Otherwise he should get out of the ‘rumpun Melayu’. Paraphrased by BERNAMA, his explanation for this was that “if Zaid continued to question the Malay supremacy concept, then he should no longer be a Malay as a Malay should be defending the Malays and not running them down.”
But, is that not what Zaid was doing? Apparently not, for the New Straits Times reported Home Minister, Datuk Seri Syed Hamid Albar, who is incidentally an UMNO supreme council member, as saying that Zaid was “a traitor to his own race and should apologise for his remarks.”
Both responses are so self-defeating that they boggle the mind. They typify the might is right attitude that Zaid speaks out against. Being senior UMNO members, both individuals must be open to the possibilities. As Zaid put it, if “affirmative action is truly benchmarked on the equitable sharing of wealth that is sustainable, then we must confront the truth and change our political paradigm; 40 years of discrimination and subsidy have not brought us closer.”
Zaid was not alone in expressing concerns about the way things are. At the same conference, His Royal Highness Raja Nazrin Shah, the Raja Muda of Perak, called for a rejection of discriminatory policies. The Raja Muda observed that the “consequence of not empowering citizens or, worse, disempowering them, is to create a deep sense of alienation and hostility. Indeed, it is very often an overwhelming sense of alienation and powerlessness that causes the rash acts of violence that fracture societies. It gives these citizens every reason to seek to divide society in order to redress their dissatisfactions. This is bad and insensitive politics. On another level, we cannot morally turn our backs on the fundamental responsibility of ensuring that all stakeholders in our society, no matter how small or seemingly insignificant, have a place under the sun.”
The ideal could not be better articulated. Malaysians, all of us, want our place in the sun. We do not wish to live in fear, looking over our shoulders all the time. There is more than enough for us all to share in. We have been blessed with a nation so abundant with resources and so rich with potential that generation upon generation will be able to live in peace and prosperity. The only catch, if it can be called that, is that we need to be left alone to find our equilibrium. Only then can we get on with the task of doing it right.
(Malay Mail; 4th November 2008)
MIS
Tuesday, October 28, 2008
Running Away
Running Away
A few days ago, I was talking to a friend. A meandering dialogue, it was really an excuse for us to reconnect as friends do. And as these exchanges tend to, we drifted into matters of family. She spoke about her children, her brother, the usual assortment of fears and hopes, funny moments, painful ones. I reciprocated.
At some point I began to talk about my father. And as I progressed into my narrative, she suddenly remarked that it was as if I was describing someone very different from the person I had talked about a year and a half ago. I thought about it and understood that she was right. The person I had just been describing was a warm, humorous and slightly dotty academic who, in the recounting of his madcap adventures across the globe in search of his truths, came across as a less sexy version of Sean Connery in his role as Indiana Jones’ father. The father I had described the year before was a quiet, reserved man so removed from his context and so driven in his academic research that he was virtually impossible to relate to. So much so that I had at times wondered what it was that he was running away from.
It struck me then that my father had not changed. I wondered whether I had been romanticizing my account of my father. Writers tend to exaggeration in the name of art, they call it artistic licence, and I was really a closet writer who had stumbled into the practice of law. But then I reconsidered, if that were the case why had I not done that before and, if the truth were to be told, our relationship had always been disjointed. I saw that there had to be another reason.
The more I thought about it, the more I became convinced that I was the reason. I had changed, it seemed, and in as big a way that allowed black to have somehow become white. How that had happened, what had caused that shift in me, these were things I was less sure of.
Over the next few days, I kept on going back to that insight, twisting and turning it in my mind to look at it from different angles. I gnawed at it like a dog with a bone, trying to extract its essence. Slowly, my ruminations took me through the ebb and flow of the preceding year. Gradually, realization dawned.
At some point, I had accepted him; the good, the bad, everything. More crucially, I had accepted that I was his son and that without him, I would not have journeyed down that road that allowed me to become who I was and who I was becoming. My father may have been running, but I had been on my own long distance run. One that had instead of taking me towards where I wanted to get to had taken me away from it. I had stopped running. There was no reason to any longer; there had never been one.
And I saw then that we had to stop running away from who it is that we are.
For years we have fought off any idea of a real Malaysian identity, one in which we could just simply be Malaysian without having to underscore whether we were Malay, Chinese, Indian, Kadazan, Iban or anything else. We have done this not because we know that we cannot have such an identity but because we have preferred to believe in a fiction that had over the years been constructed on the foundation of pain, anguish and hopelessness that enforced separation from one another has caused us all.
It is in the interests of those who prefer to say that a Malaysian identity, a Bangsa Malaysia, is a myth, or that it can only be built around a national identity that prefers one aspect of our beautifully diverse lives, to perpetuate the reasons that keep us apart. The proof that what it is they say is the myth and that each and every one of us has a role in creating, nurturing and evolving our national identity, lies all around us. We just have to want to see it: the way we eat each other’s food and how that food has in a way become all our food, the way we celebrate each other’s festivals with as much gusto as we would ours as if they were our own, the mixed marriages and the children they have blessed this country with, the common dreams and ambitions, the aspirations of our young, our collective destiny.
What are these if not aspects of who it is we all are?
What makes us uniquely Malaysian is our difference and the way we embrace it as one community, warts and all. If we could begin to see that, then that day when we topple that foundation of illusions, and with it that edifice that has for far too long cast a gloom over us, will dawn.
My father is my father and I am his son. I am a Malaysian and I want to stop running.
At some point I began to talk about my father. And as I progressed into my narrative, she suddenly remarked that it was as if I was describing someone very different from the person I had talked about a year and a half ago. I thought about it and understood that she was right. The person I had just been describing was a warm, humorous and slightly dotty academic who, in the recounting of his madcap adventures across the globe in search of his truths, came across as a less sexy version of Sean Connery in his role as Indiana Jones’ father. The father I had described the year before was a quiet, reserved man so removed from his context and so driven in his academic research that he was virtually impossible to relate to. So much so that I had at times wondered what it was that he was running away from.
It struck me then that my father had not changed. I wondered whether I had been romanticizing my account of my father. Writers tend to exaggeration in the name of art, they call it artistic licence, and I was really a closet writer who had stumbled into the practice of law. But then I reconsidered, if that were the case why had I not done that before and, if the truth were to be told, our relationship had always been disjointed. I saw that there had to be another reason.
The more I thought about it, the more I became convinced that I was the reason. I had changed, it seemed, and in as big a way that allowed black to have somehow become white. How that had happened, what had caused that shift in me, these were things I was less sure of.
Over the next few days, I kept on going back to that insight, twisting and turning it in my mind to look at it from different angles. I gnawed at it like a dog with a bone, trying to extract its essence. Slowly, my ruminations took me through the ebb and flow of the preceding year. Gradually, realization dawned.
At some point, I had accepted him; the good, the bad, everything. More crucially, I had accepted that I was his son and that without him, I would not have journeyed down that road that allowed me to become who I was and who I was becoming. My father may have been running, but I had been on my own long distance run. One that had instead of taking me towards where I wanted to get to had taken me away from it. I had stopped running. There was no reason to any longer; there had never been one.
And I saw then that we had to stop running away from who it is that we are.
For years we have fought off any idea of a real Malaysian identity, one in which we could just simply be Malaysian without having to underscore whether we were Malay, Chinese, Indian, Kadazan, Iban or anything else. We have done this not because we know that we cannot have such an identity but because we have preferred to believe in a fiction that had over the years been constructed on the foundation of pain, anguish and hopelessness that enforced separation from one another has caused us all.
It is in the interests of those who prefer to say that a Malaysian identity, a Bangsa Malaysia, is a myth, or that it can only be built around a national identity that prefers one aspect of our beautifully diverse lives, to perpetuate the reasons that keep us apart. The proof that what it is they say is the myth and that each and every one of us has a role in creating, nurturing and evolving our national identity, lies all around us. We just have to want to see it: the way we eat each other’s food and how that food has in a way become all our food, the way we celebrate each other’s festivals with as much gusto as we would ours as if they were our own, the mixed marriages and the children they have blessed this country with, the common dreams and ambitions, the aspirations of our young, our collective destiny.
What are these if not aspects of who it is we all are?
What makes us uniquely Malaysian is our difference and the way we embrace it as one community, warts and all. If we could begin to see that, then that day when we topple that foundation of illusions, and with it that edifice that has for far too long cast a gloom over us, will dawn.
My father is my father and I am his son. I am a Malaysian and I want to stop running.
(Malay Mail; 28th October 2008)
MIS
Tuesday, October 21, 2008
The Ends Of Justice
The Ends Of Justice
In 2001, ten reformasi activists were detained by the police under the ISA, amongst them Ezam Mohd Noor, Tien Chua, Raja Petra, Abdul Ghani Haroon and N Gobalakrishnan. Habeas corpus applications were filed, challenging their detentions for being groundless and in bad faith as the detainees were in no way threats to national security.
In the order of things, the applications of Ghani Haroon and Gobalakrishnan came up before Justice Hishamuddin Yunus who was then a judge at the Shah Alam High Court. A team of lawyers led by R Sivarasa presented their case and as the issues involved were complex, the Judge reserved his decision to a later date to give himself more time to fully consider the submissions and the law.
It was decided by the team that I would appear before Justice Hishamuddin on the day he was due to deliver his decision. If the decision was favourable, I was to obtain a statement from both Ghani Haroon and Gobalakrishnan as to what had happened during their detention by the police. The detainees had not been permitted to see their lawyers from the time they were detained. Five of the other eight detainees had had their habeas corpus applications disallowed by Justice Augustine Paul, then of the Kuala Lumpur High Court, and his decision was under appeal to the Federal Court. Any information I could get was relevant to whether the police had acted in bad faith and would be of great significance to the appeal.
The team was however concerned that should the court free Ghani Haroon and Gobalakrishnan, they would be rearrested as soon as they stepped out of the courthouse. This was not an unknown occurrence, Karpal Singh having been famously rearrested upon his being granted habeas corpus in 1987.
My brief was as such to come up with a way to keep our two clients within the courtroom and get a statement from them before they were rearrested, if this was to occur. This was not going to be easy and I remember thinking that law school had not prepared me for this. There I had learnt of an ideal world where decisions of courts were respected not just in letter but also in spirit.
The decision was handed down as scheduled late in the morning. Nerves had denied me any sleep the night before and were making me nauseous. Justice Hishamuddin began to read out what we were to soon discover was a comprehensive and admirable treatise on the liberty of the individual and the care with which that right was to be safeguarded against executive arbitrariness. Armed with the Constitution, his hand guided by justice and humanity, the Judge struck down the detentions with all the condemnation that oppressiveness deserved.
I did not know that at the outset of course. As Datuk N H Chan, formerly of the Court of Appeal, muses in his book ‘Judging The Judges’, keeping audiences in suspense was one of the small pleasures of being on the bench. Justice Hishamuddin exploited that privilege and saved his conclusions to the end. There were hints though and as I began to believe that we might just win, a shiver ran down my spine. It, and the immense satisfaction that I felt at seeing the law serve the ends of justice as the judge granted habeas corpus, have stayed with me till this day. That memory, and the undying hope that it gave life to, have taken me back into court time and time again since.
It was a Friday and the Judge directed that our clients be produced in court that afternoon to allow him to direct their release. I was grateful for the extra time this gave me to come up with a firmer plan of action. Though I knew what I was supposed to do, the details were more than slightly hazy.
Thankfully, adrenaline works wonders. As we made our way to the courthouse, it was clear that something was afoot. There was a tremendous police presence in the precinct and in the court complex. Roadblocks had been set up and visitors were being screened. It was apparent that the police expected trouble and it was not difficult to see why. Though by winning supporters would be jubilant, not angry, an outburst could occur if provoked in the way a re-arrest would.
I felt outraged. We had fought hard and fair, and we had won the day. Surely, that could not just be wiped away.
If it was naiveté that fueled my emotion, I was glad. By the time I got to my feet, all nervousness was gone. Luck was also on my side, it would seem. Datuk Hishamuddin had had to walk through the throng of police officers as well. As I pointed their presence to the Judge and expressed my concerns about the possibility of a re-arrest, he turned to counsel for the government and asked whether this was going to happen. Counsel was equivocal and the Judge was not impressed. Turning to me, he said that I could take it that there was going to be a re-arrest and asked what I wanted.
This was the moment of truth. Noting how he had concluded that the detention was unconstitutional and inhumane, I explained how the wives of the detainees had been informed and were on the way from Penang even as I spoke. I urged him to consider how unjust a re-arrest of the detainees would be and reminded him how, as a High Court Judge, he was empowered to give any direction to give effect to my clients’ constitutional rights. I asked that he restrain the police from re-arresting the detainees for a period of twenty-four hours and then I prayed.
Justice Hishamuddin granted the order. Our clients saw their wives and families. They were never re-arrested under the ISA.
(Malik Imtiaz Sarwar is counsel to Raja Petra Kamaruddin whose habeas corpus application is scheduled before the Shah Alam High Court on 22nd October 2008. He is also the President of the National Human Rights Society and blogs at www.malikimtiaz.blogspot.com)
In the order of things, the applications of Ghani Haroon and Gobalakrishnan came up before Justice Hishamuddin Yunus who was then a judge at the Shah Alam High Court. A team of lawyers led by R Sivarasa presented their case and as the issues involved were complex, the Judge reserved his decision to a later date to give himself more time to fully consider the submissions and the law.
It was decided by the team that I would appear before Justice Hishamuddin on the day he was due to deliver his decision. If the decision was favourable, I was to obtain a statement from both Ghani Haroon and Gobalakrishnan as to what had happened during their detention by the police. The detainees had not been permitted to see their lawyers from the time they were detained. Five of the other eight detainees had had their habeas corpus applications disallowed by Justice Augustine Paul, then of the Kuala Lumpur High Court, and his decision was under appeal to the Federal Court. Any information I could get was relevant to whether the police had acted in bad faith and would be of great significance to the appeal.
The team was however concerned that should the court free Ghani Haroon and Gobalakrishnan, they would be rearrested as soon as they stepped out of the courthouse. This was not an unknown occurrence, Karpal Singh having been famously rearrested upon his being granted habeas corpus in 1987.
My brief was as such to come up with a way to keep our two clients within the courtroom and get a statement from them before they were rearrested, if this was to occur. This was not going to be easy and I remember thinking that law school had not prepared me for this. There I had learnt of an ideal world where decisions of courts were respected not just in letter but also in spirit.
The decision was handed down as scheduled late in the morning. Nerves had denied me any sleep the night before and were making me nauseous. Justice Hishamuddin began to read out what we were to soon discover was a comprehensive and admirable treatise on the liberty of the individual and the care with which that right was to be safeguarded against executive arbitrariness. Armed with the Constitution, his hand guided by justice and humanity, the Judge struck down the detentions with all the condemnation that oppressiveness deserved.
I did not know that at the outset of course. As Datuk N H Chan, formerly of the Court of Appeal, muses in his book ‘Judging The Judges’, keeping audiences in suspense was one of the small pleasures of being on the bench. Justice Hishamuddin exploited that privilege and saved his conclusions to the end. There were hints though and as I began to believe that we might just win, a shiver ran down my spine. It, and the immense satisfaction that I felt at seeing the law serve the ends of justice as the judge granted habeas corpus, have stayed with me till this day. That memory, and the undying hope that it gave life to, have taken me back into court time and time again since.
It was a Friday and the Judge directed that our clients be produced in court that afternoon to allow him to direct their release. I was grateful for the extra time this gave me to come up with a firmer plan of action. Though I knew what I was supposed to do, the details were more than slightly hazy.
Thankfully, adrenaline works wonders. As we made our way to the courthouse, it was clear that something was afoot. There was a tremendous police presence in the precinct and in the court complex. Roadblocks had been set up and visitors were being screened. It was apparent that the police expected trouble and it was not difficult to see why. Though by winning supporters would be jubilant, not angry, an outburst could occur if provoked in the way a re-arrest would.
I felt outraged. We had fought hard and fair, and we had won the day. Surely, that could not just be wiped away.
If it was naiveté that fueled my emotion, I was glad. By the time I got to my feet, all nervousness was gone. Luck was also on my side, it would seem. Datuk Hishamuddin had had to walk through the throng of police officers as well. As I pointed their presence to the Judge and expressed my concerns about the possibility of a re-arrest, he turned to counsel for the government and asked whether this was going to happen. Counsel was equivocal and the Judge was not impressed. Turning to me, he said that I could take it that there was going to be a re-arrest and asked what I wanted.
This was the moment of truth. Noting how he had concluded that the detention was unconstitutional and inhumane, I explained how the wives of the detainees had been informed and were on the way from Penang even as I spoke. I urged him to consider how unjust a re-arrest of the detainees would be and reminded him how, as a High Court Judge, he was empowered to give any direction to give effect to my clients’ constitutional rights. I asked that he restrain the police from re-arresting the detainees for a period of twenty-four hours and then I prayed.
Justice Hishamuddin granted the order. Our clients saw their wives and families. They were never re-arrested under the ISA.
(Malik Imtiaz Sarwar is counsel to Raja Petra Kamaruddin whose habeas corpus application is scheduled before the Shah Alam High Court on 22nd October 2008. He is also the President of the National Human Rights Society and blogs at www.malikimtiaz.blogspot.com)
(Malay Mail; 21st October 2008)
MIS
Tuesday, October 14, 2008
All The King's Men...
All The King's Men...
I wonder what it means for the future of this country that Datuk Mukhriz Mahathir, a current UMNO favourite son and most certainly one whom the dizzying heights beckons, has taken the view that matters pertaining to the reform of the Judiciary are not a priority. As was reported in an article in The Sunday Star, the Honourable Member of Parliament for Jerlun questioned the need for judicial reform. He claimed that Malaysia would not crumble without these reforms and, in any event, they did not benefit the Malays or UMNO.
I would have thought that the question of whether the Judiciary and the wider system of justice are in need of reform is moot. Even without the acknowledgment by the Government earlier this year that steps had to be taken to restore confidence in the Judiciary, it is glaringly apparent that all is not as it should be. Standards of judicial competence are worryingly low as is public certainty of the integrity of the judicial process. This latter aspect is no longer a matter of speculation, delusion or political spin; the conclusions and recommendations of the Royal Commission of Enquiry on the VK Lingam video made things explicitly clear: things need to be sorted out.
Matters of judicial competence and integrity impact across the board; they are neither race nor political-party specific. Bad or skewed decisions hurt the wider legal profession and the nation as a whole as much as the litigants involved. One of the biggest difficulties practicing law at the present is the lack of certainty in the law, in part for there being a slew of decisions that have been adjudged without due regard to principle or precedent. In becoming precedents themselves, these decisions have undermined the foundations of not only the legal system but also the system of commerce that it supports. Commerce being wholly dependent on the certainty that only an effectively functioning legal system can provide, the current state of affairs is anathema.
It is for this reason that when entering contracts pertaining to Malaysia, many a commercial party now take pains to stipulate that the law of the contract is not Malaysian law and that dispute resolution is to take place outside the country. That is a cause for great concern, one that we have ignored for far too long to our own detriment. A weak system of justice does no favours for the country in which it exists; it is a sure path to failure for driving investment away, much as we are currently experiencing.
Is this not a matter that affects the Malays and UMNO as much as the rest of us?
This is not just a matter of our all being Malaysians and having a common future. Malays are as much litigants before the courts as any other Malaysian. They are as involved in business and corporate deals as much as the next person is, even more some would say. A cursory perusal of the law journals would show just how far, just as they would the fact that they accuse, or are being accused, of cheating and breaching duties, or murder, rape or theft, just like anyone else. UMNO itself is capable of being dragged into court just like any other society and has in fact been there before.
Surely a stronger, independent and more competent Judiciary would benefit these quarters, as much as they would everyone else? After all, justice is supposed to be blind.
I think Datuk Mukhriz Mahathir has much to offer this nation, in parliament and outside it. His reasoning in this instance is however sorely misconceived. The said article suggests that he has formed the view that the reforms are an expression of anti-Mahathirism, notably that of Datuk Zaid Ibrahim. Though I will not speak for the former Minister in charge of legal affairs, he is more than capable of doing that for himself, I will say that the potential UMNO Youth Chief may have mistakenly confused an articulation of the need for reform with a personal attack on Tun Mahathir.
The call for reform started long before Datuk Zaid Ibrahim made headway in UMNO. It was prompted by the serious consequences of the 1988 attack on the Judiciary and the Rule of Law. Many in one form or the other, including the Judiciary itself and great legal luminaries such as His Royal Highness Sultan Azlan Shah, have taken it up. Their message is clear; something needs to be done.
The Malaysian Judiciary was once respected throughout the Commonwealth, it no longer is. Its foundations have suffered a beating from the shockwaves that emanated from the events of 1988. The testimony at the Lingam Commission hearings showed how much they still reverberate and, for that, how precarious the position of the institution is.
Is it in danger of collapsing, taking the nation along with it? Only time will tell. The question for us all, Datuk Mukhriz included, is whether we want to wait to find out.
I would have thought that the question of whether the Judiciary and the wider system of justice are in need of reform is moot. Even without the acknowledgment by the Government earlier this year that steps had to be taken to restore confidence in the Judiciary, it is glaringly apparent that all is not as it should be. Standards of judicial competence are worryingly low as is public certainty of the integrity of the judicial process. This latter aspect is no longer a matter of speculation, delusion or political spin; the conclusions and recommendations of the Royal Commission of Enquiry on the VK Lingam video made things explicitly clear: things need to be sorted out.
Matters of judicial competence and integrity impact across the board; they are neither race nor political-party specific. Bad or skewed decisions hurt the wider legal profession and the nation as a whole as much as the litigants involved. One of the biggest difficulties practicing law at the present is the lack of certainty in the law, in part for there being a slew of decisions that have been adjudged without due regard to principle or precedent. In becoming precedents themselves, these decisions have undermined the foundations of not only the legal system but also the system of commerce that it supports. Commerce being wholly dependent on the certainty that only an effectively functioning legal system can provide, the current state of affairs is anathema.
It is for this reason that when entering contracts pertaining to Malaysia, many a commercial party now take pains to stipulate that the law of the contract is not Malaysian law and that dispute resolution is to take place outside the country. That is a cause for great concern, one that we have ignored for far too long to our own detriment. A weak system of justice does no favours for the country in which it exists; it is a sure path to failure for driving investment away, much as we are currently experiencing.
Is this not a matter that affects the Malays and UMNO as much as the rest of us?
This is not just a matter of our all being Malaysians and having a common future. Malays are as much litigants before the courts as any other Malaysian. They are as involved in business and corporate deals as much as the next person is, even more some would say. A cursory perusal of the law journals would show just how far, just as they would the fact that they accuse, or are being accused, of cheating and breaching duties, or murder, rape or theft, just like anyone else. UMNO itself is capable of being dragged into court just like any other society and has in fact been there before.
Surely a stronger, independent and more competent Judiciary would benefit these quarters, as much as they would everyone else? After all, justice is supposed to be blind.
I think Datuk Mukhriz Mahathir has much to offer this nation, in parliament and outside it. His reasoning in this instance is however sorely misconceived. The said article suggests that he has formed the view that the reforms are an expression of anti-Mahathirism, notably that of Datuk Zaid Ibrahim. Though I will not speak for the former Minister in charge of legal affairs, he is more than capable of doing that for himself, I will say that the potential UMNO Youth Chief may have mistakenly confused an articulation of the need for reform with a personal attack on Tun Mahathir.
The call for reform started long before Datuk Zaid Ibrahim made headway in UMNO. It was prompted by the serious consequences of the 1988 attack on the Judiciary and the Rule of Law. Many in one form or the other, including the Judiciary itself and great legal luminaries such as His Royal Highness Sultan Azlan Shah, have taken it up. Their message is clear; something needs to be done.
The Malaysian Judiciary was once respected throughout the Commonwealth, it no longer is. Its foundations have suffered a beating from the shockwaves that emanated from the events of 1988. The testimony at the Lingam Commission hearings showed how much they still reverberate and, for that, how precarious the position of the institution is.
Is it in danger of collapsing, taking the nation along with it? Only time will tell. The question for us all, Datuk Mukhriz included, is whether we want to wait to find out.
(Malay Mail; 14th October 2008)
MIS
Tuesday, October 7, 2008
The Government Man
The Government Man
Allow me to hypothesize with you this week.
Let us, for arguments sake, say that those detained under the ISA are treated in a manner that leaves much to be desired. Assume that they are subjected to tactics of intimidation and coercion, either through interrogation or carrot-and-stick strategies that leave them mentally traumatized. At the whim of those who are in charge of them, they could be kept in solitary confinement for prolonged periods, denied visitation rights, be given food that could not in any way (and I do not mean any disrespect to the egg or those who eat it) be described as wholesome or nutritious or given amounts so meager that health and strength are affected. As a consequence, those detained are suffering.
Would that be torture? For those of you who say ‘no’, would it instead amount to cruel or inhuman or degrading treatment? For those of you who still say ‘no’, what if I were to add that those detained have not been found guilty of any crime and, in fact, those who have been and are serving prison terms, are treated better? Would it make a difference?
A theorist would have answered that the treatment described would by any standard have amounted to torture or cruel, inhuman and degrading treatment. This would have been reinforced by his (or her) belief that the detention was unlawful for having been occasioned without due process.
I share that view; in the presence of such factors it could be reasonably concluded that detainees are being subjected to some form of cruel, inhuman or degrading treatment, if not outright torture. My view, like that of the theorist, would be supported by a number of international human rights instruments including the Convention Against Torture and the International Covenant on Civil and Political Rights. These instruments and commentary collectively say that subjecting a detainee to intense mental stress, through sleep deprivation or prolonged solitary confinement or food that was inedible or lacking in nutritional value, is arguably torture or cruel, inhuman or degrading treatment.
On the other hand, a Malaysian diplomat or administrator, the hypothetical Government Man, would in all probability answer that there is no question of the treatment being torture or anything else offensive. How could it be, he would ask, when there is no law in this country that says these things amount to torture? After all, he might add with a conspiratorial wink, the Federal Constitution does not say that these things could not be done, just as it does not mention democracy.
Trying to argue the point further, one might point to the fact that Malaysia is a member of the United Nations Human Rights Council. In this capacity, Malaysia sits at the core of the international human rights system. Surely, by virtue of its appointment as such, Malaysia is morally bound to live up to the expectations of the international community?
The government representative might give this some thought, or pretend to, and then, with a sigh of regret, say that Malaysia has not ratified any of the international treaties that proscribe torture or cruel, inhuman or degrading treatment. And, he might laughingly add that if one wanted to consider international expectations, why not take into account the kind of things that the United States has done in Guantanamo Bay and Abu Ghraib?
Saving the best for last, one could then point to the Universal Declaration of Human Rights, which also prohibits this kind of treatment. Malaysia has adopted and re-adopted the UDHR in one form or the other so many times over the years that it must have a bearing.
Shrugging, he would say somewhat condescendingly that the declaration is just that, a declaration. It has no binding effect. For that, one needs to ratify a treaty and, as has been explained, Malaysia has not ratified any such treaty. That the role of the UDHR has evolved over time and that in having become a cornerstone of the human rights system, it has gone far beyond being merely a statement of aspirations would not appear to strike the Government Man as a factor worth troubling over.
Much has been said about Guantanamo Bay and Abu Gharib. Questions have been asked as to how the United States, a party to the CCPR and the Torture Convention, could have allowed for this. Some with influence have argued that the treaties only apply to the “territory” of the States. Such sophistry is a hallmark of the political underpinnings of the human rights system, a tried and tested way for states to avoid playing by the universal rules.
Malaysia is no exception. When inconvenient, it has rejected the United Nations processes, in particular its human rights system. Over the years, we have heard of how we have distinct values of our own because we are Asian or that as a Muslim country, the governing paradigm is the syariah, in response to queries as to why international norms are not being met. These responses have bordered on the ridiculous; these alternative value systems do not lend themselves to cruelty and injustice any more than any other system does.
The refusal by the Government of Malaysia to ratify any of the major human rights treaties, in particular the Torture Convention and the CCPR, cannot be justified. The only inference that can be drawn is that the Government of Malaysia does not want to be constrained by these instruments.
We do not need the Government Man to tell us why.
(Malik Imtiaz Sarwar is counsel to Raja Petra Kamarudin who was detained under the Internal Security Act on 12th September 2008. He is the President of the National Human Rights Society and blogs as ‘Disquiet’ at www.malikimtiaz.blogspot.com)
Let us, for arguments sake, say that those detained under the ISA are treated in a manner that leaves much to be desired. Assume that they are subjected to tactics of intimidation and coercion, either through interrogation or carrot-and-stick strategies that leave them mentally traumatized. At the whim of those who are in charge of them, they could be kept in solitary confinement for prolonged periods, denied visitation rights, be given food that could not in any way (and I do not mean any disrespect to the egg or those who eat it) be described as wholesome or nutritious or given amounts so meager that health and strength are affected. As a consequence, those detained are suffering.
Would that be torture? For those of you who say ‘no’, would it instead amount to cruel or inhuman or degrading treatment? For those of you who still say ‘no’, what if I were to add that those detained have not been found guilty of any crime and, in fact, those who have been and are serving prison terms, are treated better? Would it make a difference?
A theorist would have answered that the treatment described would by any standard have amounted to torture or cruel, inhuman and degrading treatment. This would have been reinforced by his (or her) belief that the detention was unlawful for having been occasioned without due process.
I share that view; in the presence of such factors it could be reasonably concluded that detainees are being subjected to some form of cruel, inhuman or degrading treatment, if not outright torture. My view, like that of the theorist, would be supported by a number of international human rights instruments including the Convention Against Torture and the International Covenant on Civil and Political Rights. These instruments and commentary collectively say that subjecting a detainee to intense mental stress, through sleep deprivation or prolonged solitary confinement or food that was inedible or lacking in nutritional value, is arguably torture or cruel, inhuman or degrading treatment.
On the other hand, a Malaysian diplomat or administrator, the hypothetical Government Man, would in all probability answer that there is no question of the treatment being torture or anything else offensive. How could it be, he would ask, when there is no law in this country that says these things amount to torture? After all, he might add with a conspiratorial wink, the Federal Constitution does not say that these things could not be done, just as it does not mention democracy.
Trying to argue the point further, one might point to the fact that Malaysia is a member of the United Nations Human Rights Council. In this capacity, Malaysia sits at the core of the international human rights system. Surely, by virtue of its appointment as such, Malaysia is morally bound to live up to the expectations of the international community?
The government representative might give this some thought, or pretend to, and then, with a sigh of regret, say that Malaysia has not ratified any of the international treaties that proscribe torture or cruel, inhuman or degrading treatment. And, he might laughingly add that if one wanted to consider international expectations, why not take into account the kind of things that the United States has done in Guantanamo Bay and Abu Ghraib?
Saving the best for last, one could then point to the Universal Declaration of Human Rights, which also prohibits this kind of treatment. Malaysia has adopted and re-adopted the UDHR in one form or the other so many times over the years that it must have a bearing.
Shrugging, he would say somewhat condescendingly that the declaration is just that, a declaration. It has no binding effect. For that, one needs to ratify a treaty and, as has been explained, Malaysia has not ratified any such treaty. That the role of the UDHR has evolved over time and that in having become a cornerstone of the human rights system, it has gone far beyond being merely a statement of aspirations would not appear to strike the Government Man as a factor worth troubling over.
Much has been said about Guantanamo Bay and Abu Gharib. Questions have been asked as to how the United States, a party to the CCPR and the Torture Convention, could have allowed for this. Some with influence have argued that the treaties only apply to the “territory” of the States. Such sophistry is a hallmark of the political underpinnings of the human rights system, a tried and tested way for states to avoid playing by the universal rules.
Malaysia is no exception. When inconvenient, it has rejected the United Nations processes, in particular its human rights system. Over the years, we have heard of how we have distinct values of our own because we are Asian or that as a Muslim country, the governing paradigm is the syariah, in response to queries as to why international norms are not being met. These responses have bordered on the ridiculous; these alternative value systems do not lend themselves to cruelty and injustice any more than any other system does.
The refusal by the Government of Malaysia to ratify any of the major human rights treaties, in particular the Torture Convention and the CCPR, cannot be justified. The only inference that can be drawn is that the Government of Malaysia does not want to be constrained by these instruments.
We do not need the Government Man to tell us why.
(Malik Imtiaz Sarwar is counsel to Raja Petra Kamarudin who was detained under the Internal Security Act on 12th September 2008. He is the President of the National Human Rights Society and blogs as ‘Disquiet’ at www.malikimtiaz.blogspot.com)
(Malay Mail; 7th October 2008)
MIS
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