On Fear Mongering And Tommy Thomas

In one of his earliest press conferences after the election, Dr M was asked about how the new government would approach the rights of the Malays. He responded by emphasising that his government would adhere to the Federal Constitution and that the rights of the Malays would be respected, as would the rights of the non-Malays. Pertinently, he also emphasised, as he continues to do, that his government would act in accordance with the Rule of Law.

In taking that position, and by his conduct since, in particular the recommendation of reputedly the most diverse Cabinet this country has seen and the latitude he has given his Ministers to state their respective positions on their portfolios, Dr M had signalled the potential for us to shift away from an ethno-religious political construct in favour of a more inclusive, capabilities based approach.

Such an approach appears to have resonated with the voters. However, as we have seen and heard in the period following the election, there is much debate about what had led to the toppling of the BN. Though an inclusive viewpoint was an important factor, the debate reveals some uncertainty about whether it was instrumental and, if so, whether that approach is here to stay.

This represents an opportunity for detractors aimed at undermining, or even impeding, the trajectory of the current government. It goes without saying; any political actors that would benefit from a surge of ethno-religious issues would either work towards that surge or support such efforts. For these parties, fear mongering about the undermining of the status of the Malay Rulers, the rights of Malays, and the administration of Islam would be a useful endeavour for a variety of reasons that ultimately pertain to self-interest.

The nomination of Mr Tommy Thomas appears to have been a flashpoint. It has provided a useful platform to stoke fears about these matters. A perfectly credible nomination has been characterised as an attempt to undermine Islam through liberalism and secularism, and to undermine democracy through an implied support of communist ideals. 

This has been packaged in the apparent denial of a legitimate need on the part of the Malay Rulers, in particular the YDPA, for advice on matters of Shariah law by the nomination of a non-Muslim. This purported denial suggests that the legitimate needs of the Malay Rulers as Heads of Islam are being ignored by the nomination.

It is possible that as a consequence of the murkiness, the matter is to be deliberated by the Conference Of Rulers.  The Malay Rulers are of course entitled to deliberate on any matters that their Highnesses consider to be relevant to their roles as Malay Rulers. 

It bears consideration though that, unlike the appointment of judges of the Superior Courts (Article 122B(1)), the appointment of an Attorney General is not a matter that requires consultation with the Conference Of Rulers. That is a matter on which the YDPA is to act on the advice of the Prime Minister (Article 145(1) read with Article 40(1A)).

This is not to say that that the YDPA is precluded from considering the matter in consultation with the other Malay Rulers, should His Majesty consider this to be necessary. 

A legal question does arise as to the scope of such consultations. That would ultimately relate to the powers of the YDPA as to the appointment of the Attorney General.

Article 145(1) specifically deals with the appointment of the Attorney General and it explicitly requires the YDPA to appoint the Attorney General on the advice of the Prime Minister. The YDPA is therefore precluded from questioning such advice save on the limited question of whether the Prime Minister is duly empowered to give such advice. He may, for instance, in recommending the dismissal of one Attorney General and the appointment of another, be acting in conflict of interest. 

Article 40 does however, generally provide for where the YDPA is to act on advice. A40(1) and (1A) suggest that the YDPA is entitled to “consider” the advice given, and for that purpose,  is allowed access to information the government might have on the subject. Thus, the scope of consultation could be slightly broader though, ultimately, the YDPA is obliged to act on advice.  It may also be argued that as Article 145 specifically deals with the subject of the appointment of the Attorney General, its language is to be given effect as the specific provision over-rides the general one.

Whichever interpretation is adopted, in my respectful view, the YDPA is ultimately obliged to act on the advice given save where the Prime Minister is not empowered to give such advice.

This should, however, not be any cause for concern.

Matters pertaining to the administration of Islam fall within the purview of the State. The Malay Rulers are Heads of Islam in their respective States. The YDPA is the Head of Islam in the Federal Territories. The focus of the Malay Rulers is thus on the personal law of Muslims. For this purpose, the respective Majlis Agama and Muftis advise the Malay Rulers.  This is the case even for the Federal Territories.

Further, the Shariah courts enforce Shariah law, and the Attorney General’s Chambers plays no role in this. 

It is only where Islamic law intersects with matters in the public sphere involving the Federal Government that the Attorney General’s Chambers is involved; for instance, on laws pertaining to Islamic Banking. The administration of Islam as a personal law does not concern the Attorney General’s Chambers.

As for the status of the Malays, that is protected by Article 153. Unless and until that provision is amended out of the Federal Constitution, it is there to stay. 

Given this state of affairs, I do not think there is any reason for any of us to be fearful. The system will self-regulate.  

The government changed on 9th May and the sky did not fall on our heads. Things are moving in the right direction now and, understandably, an overwhelming number of Malaysians are concerned about attempts to undermine the changes that are happening around us. We are worried that the continuing fear mongering will only entrap us in the murkiness of race politics that has impeded our progress for far too long.  

MIS

On The Reform Agenda

The Pakatan Harapan ousted the BN on the strength of a promise of reform. Having formed the new government, it is clear that the ability to deliver on that promise has to be balanced against the challenge of taking the reins and steering the country back on course. 

From what Dr M has been doing, it appears that his government (as small as it is) equally recognises reform as a priority. The establishment of the Council of Elders, and the Committee On Institutional Reform speaks to that.

It is imperative that Dr M and his team be given the fullest support and latitude to do what needs to be done. To the extent that there is any political infighting s the members of the Cabinet are being determined, and it appears that there may be, it would be a shame if that infighting impacted on reform efforts.

More than that, it would amount to a betrayal of the mandate given to Pakatan Harapan to reform the country. Political interests must give way to the national interest. 

I am happy to note that, as quoted in Malaysiakini today, Dato’ Seri Anwar has said that the litmus test of the new administration (perhaps we should stop using the word regime) will be on how its implements the reform agenda. 

I think that is a fair yardstick to apply. It implicitly recognises that the new administration must be given the time and space to do what it needs to, and that a high standard is expected.

It bears reiterating that the necessary time and space must be given to the new administration to let it see through its reform agenda.

Going by the issues that created the momentum for the ousting of the BN, the expected reforms are numerous, ranging from the electoral system to the public service and, close to my heart, the administration of justice.  This will require a lot of thought and effort and, more importantly, the political will to drive reform through to completion.

Having said that, this is a process that has to be approached with a sense or urgency and novelty. Decisive steps will have to be taken. Problems need to be addressed with the best solutions, even if these involve approaches that are novel or unconventional. 

For example, where the justice system is concerned, if the administration is serious about shoring up public confidence in the Judiciary it must take concrete steps to do so. This has to start by asking whether the Judiciary is made up to the best persons for the job. It may be that, without impinging on their security of tenure, measure needs to be introduced to allow for judges to be independently vetted, evaluated and reviewed for performance and suitability for office periodically by an independent judicial ethics committee. There is a Judicial Ethics Committee Act 2010 in place. It needs to be tweaked. Similarly, it may be that the Judicial Commission Appointments Act 2009 will have to be amended to make it wholly independent of the Judiciary in the manner originally proposed by the Bar. This is after all the way in which the commission operates in the UK.

Similarly, to ensure that justice is seen to be done, it may be the case that the judges of the Federal Court and the Court of Appeal be required to deliver written grounds of judgment for every appellate decision of those courts. This will make their reasoning known to litigants and the wider public, and ensure that due consideration is given to the issues that arise for determination. It will also eliminate concerns about selective decision-making.

Also, it would best for all appeals to the Federal Court to be determined by panels of at least 7 or 9 judges, each of whom write or contribute to the written decisions of the court. This is, after all, the practice of the apex courts in the USA, the UK and Australia, a practice that ensures the development of the law in a coherent manner. The Federal Court is after all the apex court tasked with supervising and developing judge made law in the public interest.

These changes are easily applied without the need for constitutional amendment.  However, those seeking change will have to wrestle with entrenched ways of thinking, comfort zones, or circumstances, these obviously beneficial practices have not to date been adopted. 

Dealing with an entrenched culture is going to be one of the biggest challenges to the institutional reform. It will have to be driven through unrelentingly by administrators capable of staring it down. Amongst the most important of these administrators is the Attorney General. That is why I think that the reform process can only truly start, going from theory to practice, when we have an Attorney General who understands what is needed and is not daunted by the challenge.

That is why a new Attorney General has to be appointed as quickly as possible, one who is capable of doing what it takes but who remains accountable to Parliament. 

MIS

On The Attorney General

There are calls for a non-political Attorney General. 

If the Attorney General were only the Public Prosecutor, this would make sense. You would want the person vested with the power and discretion to prosecute to be wholly free from influence. 

However, the Federal Constitution says that the Attorney General is also the Public Prosecutor, and thus serves the dual function of both being the legal advisor to, and the representative of, the Government as well as the Public Prosecutor.

It is for this reason that the Federal Constitution allows for the appointment of a Member of Parliament to be the Attorney General, who may even be appointed as a member of the Cabinet (see Article138(2) and Article 145). In this way, the Attorney General can be made accountable to Parliament.

This is a vital dimension of the discussion and should not be overlooked. This accountability would extend to the role of the Attorney General as Public Prosecutor.  Decisions made in that latter capacity could also be reviewed and scrutinised in Parliament.

I appreciate, however, that there is basis for concern as to the potential for political influence to creep into the sphere of prosecutorial discretion. That concern can only be completely addressed by a constitutional amendment that separates the office of the Attorney General from that of the Public Prosecutor. 

That is something, as I understand it, the Pakatan Harapan is committed to doing. It however requires steps to be taken, Apart from the constitutional amendment, it would be necessary, amongst other things, to establish a separate body akin to the Crown Prosecution Service in England, the reassigning of officers of the Attorney General’s Chambers to that new body, the amendment of criminal laws to provide for this fundamental change.

Such steps must also be taken in tandem with the other reforms the Pakatan Harapan says it will introduce, in particular the reshaping of the Malaysian Anti-Corruption Commission into an independent body accountable to Parliament. If this is taken to the fullest, it could possibly involve the head of that agency also being given an independent power to prosecute.

To put this into play, there is a need for continued political will for such change. The new Attorney General must be someone who can see to it that the Pakatan Harapan does not lose steam on the subject or, for other reasons, retract its position on the commitment. An Attorney General who is a Member of Parliament and in the Pakatan Harapan would be able to do that more effectively than an outsider.  The candidate for Attorney General must however be someone who is seen as committed to this change and who is capable of delivering it.

In the meanwhile, there are ways in which any lingering concerns about political influence on prosecutorial discretion can be addressed temporarily. The Attorney General could seek to exclude himself from decisions to prosecute or not by delegating the functions of the Public Prosecutor to the Solicitor General. Should the need arise, a lawyer from private practice could be contracted as the Solicitor General for that purpose. Additionally, independent oversight committees could be established to oversee decisions made. And, the Attorney General could be asked to prepare reports for Parliament. For this purpose, if necessary, an Administration Of Justice Act could be enacted.

The office of the Attorney General is pivotal to the reforms in the administration of justice that the Pakatan Harapan has committed to. Whoever fills that position must not only be a person recognised for integrity and principle, but also to the Rule of Law and the highest standards of the due administration of justice.

He or she must also be committed to those reforms and must be able to drive the process through to completion, working both with the Government and other stakeholders. This calls for an understanding of the processes involved in the administration of justice as a whole, and in the civil and criminal justice systems. That person must also be able to work with the officers of the Attorney General’s Chambers, who in turn should be able to relate to him or her. Internal resistance would undermine any efforts to introduce reforms.

Ultimately though, that person must be accountable to Parliament from the outset.

MIS

Defending the basic structure

It appears that PAS will be seeking to give effect to the Kelantan Syariah Criminal Code Enactment II of 1993 by way of a Private Members Bill in Parliament. Through this, PAS aims to introduce hudud laws into Kelantan for Muslims living I the state. The term ‘hudud’ (literally “limits”) refers to offences (and their corresponding punishment or sentence) that are considered by jurists to have been prescribed by the Quran and the Sunnah of the Prophet Muhammad. Punishments include death (by stoning), flogging and amputation.

It may be recalled that the 1993 Enactment, like its counterpart the Terengganu Syariah Criminal Enactment of 2003, which additionally introduced Qisas (retaliatory) offences and punishment, have been the subject of controversy since their inception. These laws, it was thought by many, were not only unconstitutional; they sought to codify impressions of Islamic criminal law that were not necessarily universally accepted.

Both the Kelantan and the Terengganu Enactments did not come into force, in part because of challenges to their constitutionality and public outcry. In 2003, Zaid Ibrahim was given leave by the Federal Court to challenge the validity of these enactments on the basis that the Legislative Assemblies of Kelantan and Terengganu did not have the competence to enact these laws. I appeared as counsel for Zaid Ibrahim. The Government of Malaysia, through the Attorney General, supported the applications. Though the petitions were ultimately withdrawn, the matter was thought to have ended there. The subject remained within the realm of politics and political brinksmanship.

Or so it was thought. The recent initiative to implement the Kelantan Enactment, albeit with the endorsement of Parliament, calls for a reappraisal of the matter, in particular its constitutionality and lawfulness.

No matter how many times the politicians say otherwise, Malaysia is not an Islamic state from a legal standpoint. The Federal Constitution declares itself the supreme law of the land. All actions by all organs of the State, including the Legislature and the Executive, at the Federal and State levels, must act consistently with that supreme law.  

Legislative power is divided between Parliament and the respective state legislative assemblies. The delineation of legislative powers is prescribed by the Federal Constitution itself, the 9th Schedule of which sets out in three separate lists – the Federal, State and Concurrent Lists – the fields of legislative competence of these lawmaking bodies. Criminal law as the term is commonly understood is within the domain of Parliament. The aim was to allow for the creation of a uniform system of criminal law applicable to all persons in Malaysia, a state of affairs required by the guarantees of equality before the law, equal protection of the law, and the equal protection of life and liberty. 

A minor exception was allowed for. Recognising the place of Islamic personal law in pre-merdeka Malaya (later Malaysia), State legislative assemblies were vested with the power to create Islamic law for personal law purposes. This included the power to establish Islamic courts, and create offences against Islamic precepts. In deference to federal control over matters of criminal law, the Federal Constitution required that sentencing powers for such offences be vested in the Islamic courts by Parliament. As thing stand, a federal statute – Syariah Courts (Criminal Jurisdiction) Act 1965 (Revised 1988) – limits the sentencing powers of the shariah courts to imprisonment of three years, with any fine exceeding five thousand ringgit or with whipping exceeding six strokes, or with any combination thereof.

Although we are yet to see what it is that the Private Members Bill is aimed at, it stands to reason that it will seek to amend the 1965 Act in so far as Kelantan is concerned to allow for hudud offences and sentences, with particular reference to the 1993 Enactment. From media reports it would seem that some PAS Members of Parliament are of the view that a simple majority of members present in the Dewan Rakyat would be sufficient to push the bill, and as such hudud in Kelantan, through. I beg to differ.

For one, this viewpoint ignores the fact that the Kelantan legislative assembly was not competent to enact the 1993 Enactment. In creating the offences and prescribing the sentences that it does, it has encroached into the domain of Parliament for having created criminal offences. It has in effect created a parallel system of Islamic criminal law that goes beyond the constitutionally contemplated scheme of personal law offences. This not only violates the legislative provisions of the Federal Constitution, it offends the various guarantees of fundamental liberties accorded by the Federal Constitution to all citizens, including the Muslims of Kelantan. It would wholly undermine the constitutional arrangement of this nation and irreparably damage its basic structure. 

If this is what the Private Members bill seeks to achieve, then it is clearly misconceived. Leave aside concerns about the basic structure, such an effort would be tantamount to an attempt to amend the Federal Constitution. In the ordinary course, this would require a majority comprising two-thirds of all members of both Houses of Parliament. 

As I understand it, private members bills are not treated as matters of priority. I cannot recall when we last heard of one being debated in Parliament, they are pushed to the end of the list and called up only on the completion of government business. Chances are that the proposed bill would never see the light of day.

The political climate is however murky, and extremism appears to be lurking on the fringes. A declining economy, continuous emphasis on race and religion and an ineffective education system have collectively served as an incubator for a reactionary mindset amongst a large number of Malaysians.  I am concerned that desperate ambition may make an alliance with PAS on this subject seem acceptable to UMNO. 

If so, and I hope it not to be the case, then it cannot be emphasised enough that the context make this a matter of great seriousness. The implications are tremendous. 

This is not about Islam, or being anti-Islam. I do not think it open to anyone to suggest that the legal framework of this country has done anything other than to serve and promote the interests of the religion. Muslims in this country have every resource at their disposal to profess and practice their faith. 

Rather, this is about standing by a shared commitment that we undertook in 1957 when we declared ourselves citizens of an independent nation.

Malik Imtiaz Sarwar is a practising lawyer and the Immediate Past President of the National Human Rights Society of Malaysia (HAKAM). This comment is dedicated to the memory of the late Karpal Singh who fearlessly and untiringly defended the basic structure of this nation

Of confrontation and reconciliation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MIS

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

We, the people

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I think that is a choice worth making.

MIS

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

Putting an end to child marriages

The incidence of child marriages is alarming. By child marriages, I mean the marriage of any person under the age of eighteen. This is more so for the fact that it appears that such marriages are significantly more prevalent amongst Muslims. A recent statement by a United Nations agency here indicates that the number of such marriages has increased significantly over recent years.

The minimum age of marriage for persons of other than the Muslim faith is eighteen. Muslims girls are permitted by state law to marry at the age of sixteen. In some states, like Kedah, the Shariah Court can sanction the marriage of an even younger Muslim girl. In one such case, the Shariah Court recently granted permissions for a twelve-year old girl to marry a nineteen-year old man (some reports have put the age of the groom at sixteen). According to reports, the father of the bride consented to the marriage to avoid any “immoral activity” on the part of the couple. The husband is quoted as saying that his bride had agreed to shoulder the responsibility of a wife.  The reports do not indicate either his view or that of the father as to the ability of the twelve year old to understand the full implications of the situation.

It may be recalled that in 2010, a marriage between a fourteen-year old and her twenty-three year old husband sparked some controversy. The Government at that point took the position that if the marriage was permitted under Islam, and as such within the jurisdiction of the State Government, there was no basis to reject the same. Its position does not appear to have changed.

The Attorney General has, through his continued silence on the subject, endorsed such marriages. 

On my part, I fail to understand how the Federal Government and the Attorney General could have allowed for this self-evidently destructive trend to continue. Such marriages are not only, I say, unconstitutional, they hurt the children concerned and society. Research shows that child marriages have severely adverse consequences on the physical, emotional and mental development of the child. UNICEF has reported that girls who marry young tend to forego formal education, which, not only disadvantages the girls concern, lead to gaps in their knowledge on maternal health and child rearing issues. There is an increased risk of death in childbirth for girls that young.

It is for this reason that the Convention for the Elimination of All Forms of Discrimination Against Women, which Malaysia has acceded to, places an obligation on the State to ensure that the “betrothal and the marriage of a child shall have no legal effect” and to take appropriate steps to regulate this. 

It is also for this reason that various countries have set to combating child marriages with a view to improving the welfare of children and for the protection of the community. It is generally accepted that the prohibition of such marriages will contribute significantly to poverty eradication and the promoting of gender equality. In some countries, punitive measures against persons who perform, permit, or promote child marriages have been enacted.

It is no answer to say that the economic realities of the situation are in favour of such marriages. If poverty is causing such marriages, then poverty should be addressed. We cannot allow the situation to evolve; I shudder at the thought of this process being used to validate trafficking of child brides or, for all purposes intents, validating the pedophilic tendencies of the monsters that prey on young children. Less sensationally, even the thought of young child-divorcees is reason for concern.

It appears that rather than dealing with the root problems, the Government would rather sidestep the matter. In this, it would seem that Islam is being invoked to stifle the controversy. 

While I can appreciate the need for the State to preserve the integrity of personal law, it is not the case that the personal law of Muslims can be understood as permitting the endangering of Muslim minors. More so for the fact that the legal framework of this nation so evidently gives basis to the Federal Government and the Attorney General to intervene and correct the situation.

A question arises as to whether the power of the Shariah Court to validate such marriages is constitutional. The analysis cannot stop at the fact that the Legislative Assemblies of the states enact laws that vest the Shariah Court with the power to validate. Though it is true that the Legislative Assemblies have competence over the legislating of laws for the purposes of the administration of Islam, the discretion to do so is not absolute. It must be appreciated that such discretion is limited to enacting only laws that are constitutional. 

As to the question of what is constitutional in the circumstances, several key features of our constitutional framework are material. Firstly, the constitution protects the fundamental liberties of all its citizens. Two of these are highly relevant to the discussion: the right to life, and the right to equal protection of the law. 

As to the former, as has been underscored by the Federal Court, the right is not limited to merely concerns over corporeal existence. It extends to the intangible aspects of the right to live one’s life, a state of being that hinges on the protection of mental and emotional integrity. As to the latter, it would be wholly repugnant to our system of life to allow for a state of affairs where some vulnerable citizens are protected from physical, mental and emotional abuse while others are not. It is for this reason that while at first glance, some constitutional powers could be read as allowing for violations of these strictures in the interests of some other cause, closer scrutiny would inevitably lead to the conclusion that this could not be the case.

Put another way the power of the State Legislative Assemblies to enact law pertaining to the administration of Islam cannot be extended to validating the enacting of laws that defy the constitution. And yet this appears to be what section 8 of the Kedah Islamic Family Law Enactment 2008 does. It vests the Shariah Court with the power to expose Muslim children to the kind of conduct that is proscribed where non-Muslim children are concerned. In doing so, it discriminates against the former category of children. It permits the undermining of the physical, emotional and mental integrity of Muslim children in a way that is wholly inconsistent with their right to life. 

It is not coincidental that the Child Act 2001, which defines a “child” as being a person under eighteen years of age, makes it an offence to cause physical or emotional injury to a child. The same law provides that a minor is deemed to be in need of the care and protection of the State if there is a substantial risk of the minor being emotionally injured or sexually abused. Sexual abuse is defined to include situations where the minor takes part in sexual activity for another person’s sexual gratification.

It is equally no coincidence that the Penal Code defines the offence of statutory rape as involving sexual intercourse with a girl below the age of sixteen without exception. Marriage does not make lawful such sexual congress. It is highly significant that the Malaysian courts in convicting offenders for statutory rape have found that girls under the age of sixteen are too young to even be introduced to carnal knowledge between a man and a woman.

This takes me to the second point. In recognition of possible conflicts between state and federal laws, their respective law-making bodies potentially unavoidably encroaching into each other’s fields of competence, the Federal Constitution gives federal law primacy. As such, where federal law and state law conflict, federal law prevails. 

That being the case, even if the Kedah legislation (or any other such legislation_ were constitutional, which for the reasons I have explained above I cannot see as being a correct proposition, then in light of Parliament having enacted the Child Act and the statutory rape offence under the Penal Code, the Kedah legislation is void.

I suggest that the circumstances compel the Federal Government and the Attorney General to take immediate action. There is recourse; the Federal Government is entitled in law to mount a challenge on the state legislation in the Federal Court. It must do so.

MIS

(This article first appeared in The Edge on 15.12.2012)

Pushing ahead with Judicial Reforms

There is a growing perception that judicial reforms may finally be gaining traction. 

Efficiency in court has increased tremendously with the Kuala Lumpur High Court and the Appellate courts disposing cases at a commendable rate. It is now not unusual for cases to be disposed by the High Court within nine months from the date of commencement, a far cry from the not so distant days of cases taking anything up to five or six years to be determined. 

This has not only been about managing the situation, or cracking the proverbial whip, it has equally been about embracing a new mindset and the technology that makes it a reality. And while questions are still being asked about the quality of justice, after all justice sped up will at times result in justice denied, I believe the merits of the changes we are experiencing outweigh their demerits. Having said that, this is a serious concern that must be addressed by the Judiciary, a matter I will return to.

On other fronts, eyebrows have been raised by several decisions over the past year or so that suggest an increasingly independent judiciary. Amongst them was the majority decision of the Court of Appeal striking down as unconstitutional section 15(5)(a) of the University and Universities Colleges Act last October. A short while later the High Court acquitted Anwar Ibrahim of sodomy charges. In July the High Court quashed the Home Minister’s declaration of Bersih 2.0 as an illegal organisation, while more recently in October, the High Court quashed the decision of the Home Minister rejecting Mkini Dotcom’s (the owners of Malaysiakini) application for a permit to publish a newspaper.

These decisions, and others like them, are important not just for what they concluded but equally for what they signify to Malaysians: that the Judges of the Malaysian courts are free to determine the issues before them as they see fit and without regard to any concerns, on their part, as to their prospects within the institution. With no intention of undermining the respect these decisions deserve, I believe that the judges felt free to do what it is they thought best principally because the Chief Justice has made it sufficiently clear to his judges that that is exactly what it is they are required to do.

If it is one thing that marks the Arifin Court, it is that the Chief Justice has, at least publicly, consistently expressed his belief in the need for an independent judiciary. While this may seem a truism to many of us, the sentiment is nuanced when we take into account the make-up of the judiciary.

Consider this. The Judicial Appointments Commission was established in 2009. It was established in part due to outcry over the controversial video recording of lawyer V K Lingam that resulted in the establishment of a Royal Commission of Enquiry that in turn made evident serious weaknesses in the way in which judges were appointed. These events led to an admission by the then Prime Minister, Tun Abdullah Badawi, that the appointments process was such that the best persons for the job were not necessarily selected. The self-evident implications of this admission were, and still are, a matter of grave concern. 

It also cannot be ignored that in the period following the judicial crisis of 1988, the number of judges that were appointed from the Bar dwindled to a point of it being negligible. In the period after, the overwhelming majority of judges were appointed from the Attorney General’s Chambers, elevations being perceived by some as “promotions”.  Many had not directly experienced the traditions of the Bar or were given an opportunity to fully appreciate the distinct relationship between Bar and Bench.  This limited exposure had perhaps, in some cases, resulted in a blurring of the defining lines of judicial office and a tendency to respond to authority in a manner not entirely consistent with that august office. This may explain how it is things got to that point where the government felt a need to introduce reforms. 

And although I have no foundation for this, I would venture that the Judiciary has not been left unscathed by the vagaries of race and religious politics, and an Executive that over the years became accustomed to dominating the organs of the State without due regard to the separation of powers.

These are just some of the more important dimensions of the discussion at hand. They however shed some light into the complexity of instilling a sense of independence into an ailing institution. Like all institutions, however, strong leadership and leadership by example will go a long way. And I believe that the Chief Justice is striking the right notes.

This is not to say that more cannot be done. The Chief ought give consideration to concerns that the speedy disposal of cases by judges, in particular the Court of Appeal, has resulted in case loads that impair the ability of judges to do justice. In an effort to finish their lists of cases, some judges have tended to unreasonably restrict the time given to counsel to present their cases. In some cases, it is not apparent that written submissions had been properly digested by the presiding judges, a situation that might be explained by the fact that the case load, as punishing as it is, left them with little or not time to do the same. In fairness, this may have been as a result of submissions coming in late; the relentless schedule has had its toll on advocates as well. 

The Chief must also consider the quality of judgments being handed down leaves anything to be desired. This is not a matter for appeals, which are more properly utilised to address complex points of law. There is a growing concern at the Bar that the quality of judgments is declining. If this is the case, and perhaps the Chief should consider conducting an audit, then urgent steps must be taken to address this, perhaps by appropriate judicial training. This can also be addressed by requiring all judges, even those of the Court of Appeal, to write judgments on each of their cases. It is admittedly a time consuming process, but one with obvious benefits. 

And above all, the Chief must keep his ear to the ground. If he listens, he will hear what it is that is being said about his judges. For as much as lawyers may whinge, at the end of the day their lives are intertwined with those of the judges. The Bench and the Bar balance and keep each other afloat in the stormy seas of state.  

MIS

(First published in "Rule of Law", The Edge, 20.10.2012

Spoils Of War

(This article first appeared in The Edge in the week of 28th August this year It was my first piece for a column called 'Rule of Law')

Spoils Of War

It feels sometimes that the way things are going political forces are going to rip this country apart. Intent on their respective agendas, for better of for worse, the Barisan Nasional and the Pakatan Rakyat appear to be caught up in a “no quarter” given, fight to the death that is focused more on their survival than it is on our well being. Resources, such as they are, are being deployed more to one end than they are to the more well deserving other.

Sadly, in the Malaysia of now politics is no longer the handmaiden of democracy; it defines it. The campaign being waged around us is about the continued political subjugation of this nation. It is about control. We are not witnesses to a gladiatorial contest for sport; we are the spoils of war.

Though it is a given that in even the more mature democracies the line between government and politics is not always as broad as the ideal requires, that line nonetheless exists if only for the existence of an effective system of checks and balances centered on the separation of powers between the Executive, Legislature and the Judiciary.

The line between government and politics in Malaysia is so blurred that some might describe it as no longer being visible to the naked eye. If there were any doubts about that, it would have been put to rest by any of a number of recent events. The campaign speeches made by the Honourable Prime Minister for the recent parliamentary by-elections in Hulu Selangor and Sibu, the intensified and highly selective policing of free speech, and the resurgence of intolerance against legitimate dissent are instances of what it is that fuels the belief that the Barisan Nasional views itself as the government and vice versa. To criticise one is to condemn the other.

It is crucial for all stakeholders to recognize this as much as it is not in the interests of this nation for this state of affairs to continue. It is equally imperative that we appreciate the reasons for it and commit to addressing matters as they need to be.

We suffer the consequence of several inter-locking processes that were given life during the administration of a Prime Minister who tended to view the ends as justifying the means. I would like focus on one.

Frustrated that an interfering judiciary was impeding his vision, the Mahathir administration moved a constitutional amendment that subjugated the Judiciary to Parliament and showed the Justices that he could remove them if he saw fit. His perception of the role of the Judiciary called more for compliance rather than effectiveness. This was essential to his need for Executive control over the nation.

Perhaps recognizing that it would be impolitic to suspend the Constitution, the Mahathir administration moved amendments to key legislation that would allow for greater central control over matters of free speech and government accountability. These vested subjective discretion over matters exclusively in the Government to the extent that even the courts were precluded from questioning decisions. This allowed for a suppression of civil society and opposition efforts, and in many ways hamstrung the democratic process. This state of affairs in turn allowed the Barisan Nasional to dominate Parliament, the other bastion of check and balance. A docile Judiciary washed its hands of the mounting dilemmas by citing their lack of power. Suggestions that the constitutional and legislative amendments that neutered the Judiciary were unconstitutional were dismissed.

This need for control and the willingness to do what it took ultimately led to the decline of governance in this country. As admitted by Abdullah Badawi during his term the Judiciary was in serious need of reform.

It still is notwithstanding the efforts by our current Chief Justice to increase efficiency within the courts. That is but one heavily nuanced dimension of the issue; the public perception that the Judiciary is not competent and lacking in integrity needs to be directly addressed. Perceptions of bias or extraneous influence cannot simply be brushed aside if the Judiciary is to function as such. Public confidence is as essential to the functioning of this institution as its infrastructure; laws would have no meaning if people reject the validity of the decisions of the courts. And the truth of the matter is that they have been for some time now.

It should not matter that this may be a situation that lends itself to the advantage of the Barisan Nasional. The fact remains that a fundamental feature of our system of governance is skewed. Questions of integrity and competence on the part of the Judiciary go far beyond matters of political significance. They pertain as much to matters of finance and commerce as they do to personal matters and for doing so touch the lives of all Malaysians. Consider the number of Malaysians who suffered by reason of the decision of the Federal Court in Adorna Properties or any number of self-evidently unjust and erroneous decisions of the courts, in some cases the apex court itself.

It is not enough to say “the courts have decided” in the face of decisions that are obviously unsustainable. For us to progress, the standard and quality of justice must be high as it is consistent. This is a feature of the Singaporean judiciary that has reaped much benefit for that nation. In as much as some might say that decisions of those courts involving the Government tend to go one way than the other, their commercial decisions speak for themselves. It is no coincidence that the Privy Council not too long ago adopted the reasoning of a Singapore High Court judge in rejecting a precedent that had held sway for more than a century; it was a matter of planning. From the outset Lee Kuan Yew recognized the importance of a strong legal tradition.

The question therefore is where does that leave us in Malaysia.

MIS

Ipoh, 7th May 2009

"...No, no, we are not satisfied, and we will not be satisfied until justice rolls down like waters and righteousness like a mighty stream.

I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow cells. Some of you have come from areas where your quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive.

Go back to Mississippi, go back to Alabama, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed. Let us not wallow in the valley of despair.

I say to you today, my friends, that in spite of the difficulties and frustrations of the moment, I still have a dream..."

Martin Luther King

The image of the Speaker, Y B Sivakumar, being forcibly removed from the chamber of the Assembly has seared itself into the Malaysian consciousness. That force had to be resorted to it is indication enough that the Barisan Nasional did not have a political or legal solution to the difficulty it found itself in.

I wonder whether anyone is actually celebrating.

MIS

(My column for the Malaysian Insider runs on Monday. It will deal with Perak)