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)

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)

Precedential Transitions

Precedential Transitions

The Prime Minister has declared that the anticipated power transition to Datuk Seri Najib Razak will occur as planned. The media has reported this and other news items pertaining to the subject as a transition of Prime Ministers. If this is in fact what the Prime Minister has proclaimed, and it is not apparent whether the Prime Minister had limited his remarks to the transition of the UMNO presidency, then it calls for a re-examination of the way in which governments are formed under the Federal Constitution.

For practical purposes it can be said that Parliament is dissolved when a general election is called. The government of the day, formed by the majority of the member of the Dewan Rakyat, comes to an end when this occurs, at least in theory. A caretaker government is charged with the responsibility of governing the nation in the short period before a new government is formed. This occurs when the Yang di-Pertuan Agong appoints a member of parliament to be the Prime Minister. The person His Majesty appoints is the person who in His judgment is the person commanding the confidence of the majority of the members of parliament. The appointment is a matter left entirely to the discretion of His Majesty with one condition: the appointee must be the person commanding the confidence of the majority of the members.

In the usual course, this is a matter of numbers. That person who can say that he or she commands the confidence of the majority should become the Prime Minister. This is straightforward where every member exercises his or her own judgment in coming to a choice and expresses that choice independently.

The situation is less clear where the right to choose is ceded over to a political party, or more specifically the leadership of that party or the coalition to which it exists. It may be that the party’s choice of candidate is not the choice of some or members or even a majority of them. The question then arises whether the choice of the leadership can be taken as the choice of the members of parliament from the party or coalition.

A purist perspective would lend against such a conclusion. The choice of the individual member of parliament of whom it is that he or she has confidence in is enshrined under the Constitution. A more practical approach would inevitably favour the conclusion that the party’s choice would prevail. This could however be made the basis of a plea to His Majesty. Though we have yet to see this happen on the Federal stage, we saw such a scenario unfold in Trengganu last year. There the Regent took the position that the party’s choice, predicated as it was on the majority of assemblypersons being made up of members of the party, was not decisive in view of personal preference favouring another candidate. This incident could be viewed as having some persuasive force.

The situation is not radically different where a Prime Minister resigns. As the Constitution does not cater to such a situation specifically, it stands to reason that reference must be made to the same provisions concerning the appointment of a Prime Minister.

These provisions provide for the resignation of a Prime Minister where upon his request for the dissolution of Parliament, His Majesty declines to do so. In that case, the Prime Minister must tender the resignation of the Cabinet (of which he is a member). I would think that though the Constitution is silent, the Prime Minister is permitted to resign, even where a no-confidence scenario is not in existence. To do so, he would however have to tender the resignation of his cabinet.

The more interesting aspect of this situation centres on what it is His Majesty can or should do. Save for the no-confidence scenario, the power to dissolve Parliament is one to be exercised on advice. It could be argued that without such advice, His Majesty cannot dissolve Parliament and as such is left with only the option of appointing a new Prime Minister who in turn will form his cabinet.

However, if one were to take the events of Perak as definitive, in particular the discretion of the Sultan to determine whether confidence exists, it may be open to His Majesty to take the position that by the incumbent Prime Minister resigning for reasons that have nothing to do with his incapacity, it could be said that he no longer commands the confidence of the majority. That being the case, His Majesty has the option of dissolving Parliament.

I do not think that is the correct way of looking at things. However, after Perak, it is difficult to say what is right anymore.

Leaving aside the conundrum outlined above, there remains the final dimension of this discussion: the absolute discretion of His Majesty to appoint as Prime Minister the person whom in His judgment commands the confidence of the majority. This need not necessarily be the person who replaces the Prime Minister as the President of UMNO.

That this has occurred all this while need not make it a necessity. A convention within the Barisan Nasional and the coalition’s dictates cannot bind His Majesty especially where there is reason to ask whether the proposed candidate does in fact command the requisite confidence. Imagine if personal preferences were marshaled in a way that lent to a different outcome in His Majesty’s mind. If that were to occur, there would be little room left for UMNO to maneuver, especially after the way it has carried on about the inviolability of the royal discretion. Precedent has a nasty way of biting back.

(Malay Mail; 3rd March 2009)

MIS

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

The Gridlock

The Gridlock

Last Thursday evening, there was a horrendous gridlock in the city. The public holiday in Selangor and the rain had resulted in the usual mass of snarling and resentful drivers. There were no police officers to be seen in the Jalan Raja Chulan area and drivers were taking full advantage of this. They beat lights, cut lanes and forced their way forward to gain that extra inch that would take them closer to some perceived nirvana at the expense of the marginally smoother traffic an uncluttered yellow-boxed area of road would allow for.

Stuck in the mess, on the way to an appointment in the city, I had ample time to observe what was going on and to wonder why it is that those of who were on the road were seemingly incapable of spontaneously organizing ourselves in a way that would allow us to steer our way through the morass, albeit slowly. Wedged at a junction, it struck me that all it would have taken was for drivers on either side of the road to allow two cars to pass through either way at a time. But then it was not to be as someone had attempted to make a u-turn where traffic had made it impossible to do so, and stuck mid-maneuver he had now blocked the passageway.

We inched forward that evening, literally, and I ultimately left my car to walk to my destination. As I did, I noticed cars jumping lanes and rushing headlong on the wrong-side of the road. At one stage, I heard a collision and soon came across angry men shouting at each other. Confronted by a lorry being driven on the correct side of the road, one of these jumpers had tried to cut in and collided with a car. The man whose car he had run into was screaming at him for not having waited in line. Remorseless, the jumper was screaming right back, accusing the other of not having had the consideration to allow him in when confronted by the lorry. All round, drivers were blaring their horns.

Walking on, I mused over why it was that those who jumped lane had done so. It was something I, and it would seem quite a few others judging by the number of drivers who had remained in their lane, would not have done. Speaking for myself, it was not that I feared being caught breaking road-traffic regulations, there were no policemen present after all, but rather that I respected the order that the law, its purpose and inherent respect for others represented. Judging by the events that were occurring before my eyes, there was clearly a very practical dimension to the regulation against driving on the wrong side of the road. Why then did the jumpers feel differently?

On-foot and free amidst the chaos, I suddenly had an insight: there are a great many of us who have lost respect for order simply because we think that there is always a way to get around the consequences of our actions. There are many in the situation of the jumpers who will attempt to bribe a policeman when caught, encouraged by the perception that the policeman concerned will in all probability receive a reasonable bribe of a relatively small amount. Armed with this awareness, the way is open for almost anything and everything.

This is not just about traffic offences; the scenario plays itself out in other situations as well. Corruption is so endemic that it has for all purposes and intents become a way of life, skewing our value systems as it has done so. Considering all that happens around us on a day-to-day basis, I shudder to think what it is that our core values as a society are.

We are also not impervious to the examples set out by those who profess to lead us and it would be self-deluding to think otherwise. When they conduct themselves in a manner that suggests that they are above the law, be it through intimidation or abuses of power, then the average Malaysian will follow suit. For if the system can be made to support that kind of conduct on the part of the former then there is no reason why it should not be the same for the latter.

The harsh reality is that as a consequence our moral compasses no longer point true.

The gridlock in the city last Thursday evening could be, for all purposes and intents, a metaphor for the state of Malaysia. We no longer run in sequence, we see no value in doing so. We instead run our own courses in any way we think best for our own personal interests without any regard to wider Malaysia. Insular, self-interested action has become the order of the day with devastating consequences.

For those who would believe that in taking advantage of the situation,they are doing no more than adapting, the implications of their actions should be kept in mind. These will have deeply entrenched consequences, as we are already seeing. We are a nation that is slowly and surely descending into the lawlessness that contempt for the law entails.

The future that portends is not just about traffic jams and road rage.

(Malay Mail; 16th December 2008)

MIS

Shaping Policy

I have said elsewhere that decisions of the Federal Court do not only determine the issues in the particular case the court decides on. Being the apex court and empowered to only hear appeals that involve questions of novelty or public importance, decisions of the court in many ways define the policy of the law. These decisions set precedents and are binding on all other courts.

In an ideal context – in which decisions are made impartially, correctly and with regard to all relevant considerations – this is a good thing. Decisions of the apex court would guide the administration of the law so as to ensure uniformity of decision making by the High Court and the Court of Appeal. This would allow for certainty in the law, a vital feature of a functioning system of law.

It follows then that in less than ideal situations, where decisions are made incorrectly or by reference to considerations that are not relevant to the issues being adjudicated, decisions of the apex court become problematic for setting bad precedents. As a lawyer, I have seen how judges struggle with getting around these bad decisions in attempting to do justice.

These less than ideal decisions are particularly problematic where they involve matters of governance, either at the level of government or lower down the chain of administration. Decisions of the apex court here would not only define the policy of the law, they would also shape administrative policy. In most cases involving the government or other administrative bodies, it is more usual that these entities would have been sued for alleged wrongdoing. By upholding or dismissing claims, the apex court would be setting down parameters and sending signals, one way or the other, to these entities.

Put another way, bad or shortsighted decision-making could, and most probably would, result in bad administrative policy.

It is my respectful view that the decision of the Federal Court in the Highland Towers case (MPAJ v Steven Phoa [2006]) is a problematic decision for having immunized the State Government and local authorities from liability. It must be recalled that in its said decision, the Federal Court found that the MPAJ was not liable for its negligent acts or omissions for being protected under the Street, Drainage and Building Act (s.95(2)). In so concluding, the Federal Court had effectively told the MPAJ, and other administrative bodies protected under that provision or provisions similar to it, that they could act with impunity. One can only imagine how this has shaped attitudes of local councils throughout the nation.

There are two ways that the decision could be considered. The first is supportive of the decision for the court having applied the law as written. After all, the section does provide “…shall not be subject to any action, claim, liability or demand whatsoever…” and courts cannot rewrite the law.

The second is not supportive. Though the Court is obliged to apply the law, it is nonetheless obliged to apply it purposively with due regard to the intention of legislature. It cannot have been the intention of legislature to immunize all actions or inactions. The provision was obviously aimed at protecting the parties identified for acting (or not acting) within the scope of what could be reasonably expected of such parties, seen in the phrase “..in accordance with the Act..”. There are situations, such as where the parties have acted in bad faith or in a manner not countenanced by the law, that legislature could not reasonably have intended to give immunity for.

I favour the second view not because my sense of social justice is appeased by it but because that view is more consistent with the guarantee of access to justice and equality before the law under the Constitution. These are features of the core of the Rule of Law; no person is above the law. This approach is also consistent with jurisprudence across the common law world on the subject. Significantly, the Court of Appeal in the Highland Towers case took the view that the MPAJ was not immunized from liability.

There are very real and practical implications of the decision of the Federal Court. Consider its impact on the state of affairs in Bukit Antarabanga. Going by the said decision, individuals who have lost everything have no recourse even if it could be shown that the local council acted with complete disregard to their interests. That cannot be right.

The decision in Highland Towers appeared to have triggered the start of a trend of protectionist decision making on the part of the court. In October this year, the apex court held in Government of Malaysia & 3 Others v Lay Kee Tee & 183 Others that such provisions rendered parties concerned immune from suit as a consequence of which such claims could be struck out without going to trial. The claimants there were denied their day in court unlike the claimants in Highland Towers.

The court in Lay Kee Tee raised another barrier to claims against governments by laying down a pre-condition to actions against governments (State or Federal) as follows: if one wants to sue the government for wrongs done by an agent of the government, then one must not only identify the agent, one must also make the agent a party (or defendant) to the action failing which the claim is struck off without going to trial. The court came to this conclusion through an interpretation of the relevant legislative provisions (Government Proceedings Act) that runs counter to established practice through the years both in the country and elsewhere in the common law world.

One sues the government for what is called vicarious liability. The Government not being a person, it cannot act other than through its agents. In law, where an agent is negligent, his principal is vicariously liable. There has never been any need to sue the agent in order to make the principal liable. One had merely to establish the wrongdoing of the agent to make the Government liable.

All that changed with the decision in Lay Kee Tee, which drastically altered the ground rules. Consider a situation like that in a pending action against the police and the government for inaction on the part of the police during the Kampung Medan riots. The claimant there claims that police officers stood by while he was being attacked. He now has to identify the police officers he says did not take steps and make them parties. How he does that is anyone’s guess especially since the police force is not about the volunteer the identities of those involved (this is fair considering that the burden of proof is on the claimant). Suing the government has always been difficult; it has become virtually impossible.

These decisions and others that have been too accommodating of unfettered discretion on the part of the authorities are worrying as they signal an unduly narrow view of fundamental liberties. They also indicate a misapprehension on the part of the Judiciary as to its role. The institution is not intended to blindly apply the law; it must infuse the law with those elements that mark this nation as a democracy founded on the Rule of Law.

Citizens must be allowed to seek redress for wrongs done to them by the State or its agencies; their right to do so cannot be rendered illusory. As emphasized above, this is not just a matter of one person’s wrongs being addressed and compensation. The decisions handed down have shaped policy and attitudes, and will continued to do so. If public officers are allowed to feel that they are beyond the reach of the law as they have been, they will act as they please and not necessarily in the way they are expected.

The Federal Court must appreciate more fully that its decisions are not handed down in vacuum. They shape society, sometimes drastically.

MIS

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.

Malik Imtiaz Sarwar

(Malay Mail; 18th November 2008)

MIS

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)

MIS

See No Evil, Speak No Evil

See No Evil, Speak No Evil

If the Anwar-Shabery debate was anything to go by, it is apparent that the Government continues to deal with things the way it has always done: by burying its head in the sand.

In his enthusiasm to point us at the global fuel crisis, Shabery Cheek appears to have blinded himself to the obvious flaws in the system the Government created and maintains. I waited in vain for him to cut out Anwar Ibrahim’s feet from under him by tactically acknowledging that long standing corruption had left us less capable of dealing with the crisis on hand for having robbed us of the invaluable resources needed for a more gradual and managed dismantling of subsidies.

But then, perhaps I should not single him out for blame. His perspective, that of the “there’s nothing wrong with the way we do things” variety, is one that appears to be shared by fellow members of the cabinet. Speaking of the concerns expressed by the US State Department on the current investigations into Anwar Ibrahim, Foreign Minister Datuk Seri Dr Rais Yatim is reported as having defended the application of the Rule of Law in this country.

Dr Rais had indicated that he wished to enter into a debate on the subject with foreign critics. I am very much a Malaysian and do not as such qualify. I am certain however that the Minister will not begrudge me a round or two in the ring with him.

Allow me to start with a few concessions. I concede that there is in place a written constitution that is the supreme law. I also conceded that the primary institutions of a system of administration of justice – the Judiciary, the legal profession and the police force – exist, as do laws that are enacted by elected representatives in legislature. Additionally, I agree that provision is made for the appointment of judges, prosecutors and a host of other officers who man the system.

But then, so do Zimbabwe and a number of countries in which the rule of law has collapsed. Burma in fact only recently unveiled a sparkling, bright constitution filled to the brim with the requisite bells and whistles.

The point here is that the mere existence of the institutions that make up a system of administration of justice does not in itself give rise to the Rule of Law. That only exists when it can be said with certainty that the system by which justice is administered is one that is competent, of integrity and independent. The Minister might say that we have such a system. His fellow minister, the Home Affairs Minister might say it too. Their views, as relevant as they may be, are not definitive.

Neither is that of the Prime Minister, the Foreign Minister, the Home Minister or the de facto Law Minister or the entire cabinet. It would not matter even if they assembled at the top of the Twin Towers along with every other Barisan Nasional member of parliament and proclaimed it to the heavens. The only relevant point of view is that of the rakyat. As the Minister fully appreciates, a system is only effective if it inspires public confidence. Like justice, public confidence is in part a question of perception.

The question is whether the Malaysian system inspires confidence. I think not and the average Malaysian cannot be blamed for thinking it.

Through the last decade or so, we have heard from authoritative personalities of the low level of public confidence in the Judiciary. The events that resulted in the Lingam Royal Commission of Enquiry and its damning conclusions and recommendations merely reinforced belief that all was not well in the Judiciary and that something had to be done. The Government has recently acknowledged the need to appoint the best persons for the job and the need for reform to allow for that.

Where the police force is concerned, a separate Royal Commission of Enquiry had found that abuses of power and corruption was sufficiently widespread for it to make numerous recommendations including the establishment of an Independent Police Complaints And Misconduct Commission. No significant changes have been made since the recommendations and the IPCMC remains a concept on the proverbial drawing board. No basis for increased confidence there, even if that was possible bearing in mind police actions over the last year or so.

The Attorney General’s Chambers has not been spared. Questions had been raised of the Attorney General’s conduct when he was second chair in the prosecution of Anwar Ibrahim in 1998. The underlying issues were not raised, a matter that the Federal Court had reason to take note of. Since then the issues have come up again, this time as the subject of investigations by the Anti-Corruption Agency. This and recent decisions taken by the Attorney General have raised eyebrows, Malaysians being very aware that like the Inspector General of Police, the Attorney General is dependent on the largesse of the Prime Minister.

The public image of these institutions has taken a serious beating, so much so that it would not be unreasonable for the average Malaysian to believe that the entire system needs an overhaul and until that is done the system will not work as it is meant to. With draconian laws such as the Internal Security Act and the Official Secrets Act in active use, it would not take much for one to believe equally that the law is an instrument of the Government and that the Government is above the law.

And that, as the Minister undoubtedly appreciates, is Rule By Law. Over to you, Dr Rais.

(Malay Mail; 22nd July 2008)

MIS

Rule By Law

It has become manifest that the Rule of Law has collapsed in Malaysia.

Even if Anwar Ibrahim were to be found guilty of sodomy, the court of public opinion would have acquitted him. Even if the Deputy Prime Minister were shown to be wholly unconnected with the events underlying the Altantuya murder trial, that court would have already found otherwise. It would not matter if all the police officers, prosecutors and judges in the country were to say otherwise or if all the untruths, one way or the other, were undone. Malaysians, or at least a very large number of them, have lost faith in the system.

The Rule of Law does not exist merely for there being present the institutions of the administration of justice. Courts, prosecutors, a legal profession and a police force do not in themselves give rise to the Rule of Law. That can only occur if they collectively function in a manner that allows for the full confidence of the Malaysian public. Without such confidence, these institutions are nothing more than empty shells.

There is no longer a basis for continued public confidence in these institutions. Where the police and the Judiciary are concerned, this is a state of affairs that has for all purposes and intents been formally recognized by two Royal Commissions of Enquiry. The office of the Attorney General is suborned to the Executive and its impartiality has been put in doubt, its decisions and conduct having become increasingly questionable. The legal profession has been largely neutered by self-interest or the need for self-preservation.

Corruption or abuses of power are perceived as permeating throughout.

The intensifying sequence of events that has played out these last few weeks has done little to build confidence in the system. If at all, it has eroded what little faith there was.

The need for reform is widely acknowledged, even by the Government. That little or no real reform has taken place is similarly widely known, as is the politicking that stands in the way. A system that works to vested interest, even if it is a shell propped up by laws that have been beyond challenge, is after all a system with value for those whose interests it serves. In it, existence is a game of chance played out in an arena of fear and unchecked power, and umpired by laws utilized in aid of the arbitrariness of Government.

We should not fear and yet that is what we do. For how can it be otherwise under a Rule By Law. Under it, might is always right.

MIS

A Trial Of Democracy

Anwar, Round 2 has commenced.

Media reports inform us that a police report has been lodged by an aide. The complaint appears to be that he was sodomised by Anwar Ibrahim on Thursday. No particulars of the alleged event have been made public. The complainant was to be given a medical examination and, at the time of writing, it is not certain whether this has been done.

Anwar has issued a statement. He says that the police report is a fabrication (meaning, I think, that the events described in the report). Fully expecting to be arrested, and anticipating the worst, he believes that the same methods employed against him in 1998 are being resorted to again. He claims to have recently obtained evidence implicating the Inspector General of Police and the Attorney General in “misconduct including the fabrication of evidence in the cases launched against me in 1998-1999.”

Ominously, he further says that PKR expects “the media, the judiciary and the police force to all come under the direct and unchecked control of the executive.”

***

Let’s start with the obvious. If a crime has been committed and a report lodged, then the crime needs to be investigated. Sodomy is a crime (I have my reservations about whether it is constitutional for it to be so if it is a consensual act between adults) and a police report has apparently been lodged. The complaint should be investigated. Even if it is against Anwar Ibrahim and even if it pertains to sodomy, which it does.

It is however incumbent on those in charge of the investigation that the investigation be conducted fairly and comprehensively. This means that the police cannot rely merely on the say-so of the complainant. Even if he was sodomised, which at this stage has not been confirmed, this does not mean that he was sodomised by Anwar Ibrahim. If he was not sodomised, the investigation on the complaint should be brought to an end.

I am curious. How did this alleged act of sodomy occur? Was the complainant held down by Anwar Ibrahim, or perhaps accomplices? What it done with the complainant’s consent, perhaps even at his suggestion? Perhaps he was drugged or beaten unconscious to facilitate the process?

These are questions that the police must ask in attempting to fully understand what it is that occurred, if anything occurred at all. This is more the case in view of the key elements of the sodomy investigation and prosecution in Anwar, Round 1, in particular the alleged confessions of Sukma Dharmawan and Munawer Anees which both claimed had been extracted by coercion. Similarly, the omni-present mattress and the almost magic DNA samples ought not be overlooked. This is underscored by Anwar Ibrahim’s insistence that his prosecution was politically motivated and had, for that purpose, been pre-judged.

The need for transparency and accountability is made even more crucial by the allegation by Anwar Ibrahim that he has evidence in hand implicating the Inspector General of Police and the Attorney General. The IGP figured in Anwar Round 1 (he was then SAC Musa Hassan).

In the same vein, the decision to prosecute Anwar Ibrahim, if at all, must be made only after having taken into consideration all circumstances. The reality is that the Attorney General was 2nd chair to the then Attorney General in Anwar, Round 1. Questions were raised about the manner in which he conducted himself, questions which the Federal Court in the Zainur Zakaria appeal suggested that he may have wished to address. The AG has not done so to date.

The situation is such that both the IGP and the AG may wish to take steps to distance themselves from the investigation and prosecution, if any.

***

And in the meanwhile, the fact that Morgan Stanley has indicated that some RM330 billion has been dissipated from Malaysian through corruption falls even lower on the list of priorities (if it was on the list at all).

One would not be faulted for thinking that the prosecution of those responsible and the recovery of as much of the money as possible is a matter of national importance and of public interest. The government may wish to remind themselves of the extent to which the Government of Hong Kong went to prosecute Warwick Reid, the former Director of the Commercial Crime Unit. He was convicted and the monies he corruptly received traced world-wide.

Somehow, the sexual proclivities of an individual, whether real or fantasized, do not seem to matter when the country is facing a financial crisis largely due to fat cats having looted and pillaged their way through national resources, seemingly at will.

But then, Malaysia Boleh.

***

And does it matter that since Anwar, Round 1 a Royal Commission of Enquiry has handed down a report in which the Commission has, in effect, concluded that the relationship between the Executive and the Judiciary was, and by logical extension, still is unhealthily close?

If there is going to be a prosecution, it will be conducted in a Sessions Court. Subordinate court judges are members of the Judicial and Legal Services. They fall within the jurisdiction of the Judicial and Legal Appointments Commission of which the Attorney General is a member. The Attorney General also considers matters of promotions and transfers. He is, in effect, their superior.

***

Malaysians are fond of a good gossip session. Conspiracy theories rank way up there on the list of things that must be talked about, the first chance one gets to talk about something.

Can you blame us? Nothing seems to work the way it is supposed to, intrigues have become as normal as breathing.

I wonder whether there are any Malaysians at all who actually believe that everything is as it should be. The cabinet and the Barisan Nasional excluded (though a state of denial may be a reasonable excuse).

***

Anwar says he expects the worst. His caution suggests the use of Emergency powers. There is nothing new there, the Government is still using some Emergency legislation. The declarations from previous emergencies have not been revoked and the Federal Court (the Al-Maunah case) has held that they are still valid.

And, even if there were no declarations of emergency, would the Government need to take any further steps to ensure that things went the way it wished? Organs of state and federal agencies act in a manner that strongly suggests a belief on their part that the national interest is the government’s interest and for that purpose, political interests shape the government’s interests.

Though the office of the Attorney General is an office created by the Federal Constitution, the Attorney General is nothing more than a civil servant, holding office “during the pleasure of the Yang di-Pertuan Agong” (a standard formula used to describe the holder of office as NOT having security of tenure). The YDPA being a figurehead, the office is held at the discretion of the Prime Minister who advises the YDPA as to the appointment of Attorneys General.

Significantly, prior to 1963 (when the Constitution was amended), the Attorney General was to “hold office until he attains the age of sixty-five years or such later time, not later than six months after he attains the age, as the Yang di-Pertuan Agong may approve.” He could be removed only by a tribunal similar to that to be established for the removal of a judge and only on similar grounds.

Similarly, as we have come to see, the Inspector General of Police depends on the largess of the Prime Minister. This is the reality of the framework in which the persons holding these offices operate in.

It is a framework that places them in the conflict of interest that arises between self-preservation and the duty to act as the Federal Constitution requires when the Government chooses to allow political objectives to trump national interest objectives. It is a conflict that I believe is ultimately resolved by acting on the basis of “saya yang menurut perintah”.

***

I was told by some senior politicians that there is nothing more effective than a good, juicy scandal to undermine the political strength of a Malay politician who depends on the support of the Malay grass-roots.

If true, it is the basis for a strong argument against racial politics. A politician is a politician be he/she Malay, Chinese, Indian, Punjabi, Eurasian, Dayak etc.etc.etc.

Whether he/she is a useful politician depends only on his/her commitment to righteousness.

***

Do we panic?

I think not. Under no circumstances. It will not get us anywhere and, conversely, will take us down a road that may lead us exactly where schemers, if there are any, would want us to.

Destabilized, confused. Weak.

We began building a solid foundation for the democracy we want for our young on March 8th. That was a journey we embarked upon for ourselves, our nation, our future.

It was not about Anwar Ibrahim.

***

That does not mean that we do not support the cause of justice. He is entitled to the full protection of the law. He is entitled to a fair and comprehensive investigation, if one is required at all. He is entitled to a fair prosecution and, above all, he is entitled to a fair trial, if there is one.

In all of all that and more, he deserves our full support. But, fearing the worst, are we going to stop what we started if Anwar Ibrahim is taken down?

I think not.

If Anwar, Round 2 has been brought on for political purpose, then let us show those who are pulling the strings, that race politics do not matter to us anymore.

Let them hear us, loud and clear: We are Malaysians, and only justice matters.

MIS

Of Justice And The Rule Of Law

Justice Dato’ Hishamudin Mohd Yunus of the Kuala Lumpur High Court today once again displayed the sterling qualities that distinguish him as a judge. In delivering his judgment in the case of Raja Segaran v The Malaysian Bar, he unrelentingly lived up to his reputation as a judge of courage and integrity.

In 2000, the fact of the now notorious trip to New Zealand of Tun Eusoff Chin, the then Chief Justice, and V K Lingam became know to the Bar Council as a result of evidence having come to light in a defamation case involving the Asian Wall Street Journal. The clear implication of the evidence, if credible, was that the Chief Justice had been more closely associated with V K Lingam than had been thought and that this relationship may have been exploited to an improper end.

Quite understandably, the Bar Council reacted and moved to urgently convene an Extraordinary General Meeting of the Bar to consider what it is that had to be done. It was of great concern that the matter be dealt with urgently and transparently to avoid any undermining of the institution of the Judiciary and the administration of justice. The Bar Council quite correctly considered itself and the Bar under a legal duty to take appropriate steps but, again quite correctly, thought it best to leave the decision of what to do to the full membership of the Bar. It should be said that based on proposed resolutions which had intended to be moved at the proposed EGM, the Bar Council aimed to secure a resolution of the Bar calling for a Royal Commission of Enquiry.

A lawyer named Raja Segaran took issue with the proposed course of action and demanded that the Bar Council desist from proceeding with the EGM. His complaint was primarily that the proposed meeting would be contemptuous of the Judiciary and seditious, and was in any event a course of action that Bar did not have legal power for. The Bar Council refused to accede to Raja Segaran’s demands as a consequence of which Raja Segaran filed an unprecedented legal action against the Bar, the Bar Council and its then President. This was Raja Segaran 1.

Leaving aside the question of law as to whether Raja Segaran had the standing in law to file the legal action in the first place, the primary issues went to the freedom of association, and the incidental right to self-regulate, and the freedom of expression of the Bar and its members. One would have thought that the matter was open and shut: the Bar undoubtedly had the requisite power to proceed with a discussion of the matter with a view to making the necessary recommendations in law.

The High Court did not share this view. It granted an injunction against the Bar. The Court of Appeal affirmed this order on the incredible premise that the conduct of judges could only be discussed in parliament. Tun Ahmad Fairuz, then judge of the Court of Appeal, delivered the judgment of the Court of Appeal. The Federal Court declined leave to appeal on the basis that the application for leave to appeal “had no merit” notwithstanding the self-evident matters of constitutional significance.

During this time, Tun Eusoff Chin was the Chief Justice.

The matter went to trial. Significantly, despite the trial having been closed and the matter reserved for judgment, Raja Segaran then applied for leave to discontinue the action. The High Court allowed the discontinuance. The Court of Appeal took a different view and directed the High Court judge to deliver his judgment. This took some time but when judgment was delivered, the Bar lost. In the period from the close of trial to the delivery of the judgment, Tun Eusoff Chin retired, Tun Dzaiddin became the Chief Justice and retired, and Tun Ahmad Fairuz became the Chief Justice. It was during his tenure that the Court of Appeal affirmed the trial judgment. Whether this had any bearing on the way things played remains a matter of speculation though the revelations during the Lingam Commission proceedings and the recommendations of the Commission are suggestive. Whatever the case, the line of reasoning adopted by the Court of Appeal leaves much to be desired.

For a while it seemed that the story would end that way, with the Judiciary having seemingly insulated itself from criticism and reproach. The Bar could do so only at the risk of being found in contempt or guilty of sedition. There was a second part though, one which Justice Hishamudin’s judgment brought to a close yesterday with his judgment.

Shortly after Raja Segaran 1 was commenced, the then de facto Law Minister Datuk Seri Utama Dr Rais Yatim gave an interview to the Australian Broadcast Corporation in which he described how it had been intimated to Tun Eusoff Chin “in no uncertain terms” that the holiday in New Zealand constituted “improper behavior”. This sparked off a public exchange in the media between Tun Eusoff and Dr Rais with other public figures weighing in, predominantly in favour of Dr Rais’ position.

The Bar Council took a decision that this fresh development was sufficient basis for it to make fresh moves towards calling for a Royal Commission of Enquiry. It called for a fresh EGM of the Bar to discuss these developments. Raja Segaran commenced fresh proceedings and sought a further injunction. This was Raja Segaran 2, the case in which Justice Hishamudin delivered his judgment.

In the forthright and direct style that the Bar has come to expect of His Lordship, Justice Hishamudin firstly found that Raja Segaran had not established that he had been specifically aggrieved by the decision to convene the EGM, in part by reason of his having failed to appear at the trial to give evidence, Raja Segaran did not have the requisite standing in law, or locus standi, to commence the proceedings.

Justice Hishamudin then went on to observe that he would be failing in his duty as a judge if he did not touch on a matter that he considered to be of constitutional importance. Considering the same constitutional provisions that had been relied upon by the Court of Appeal in the Raja Segaran appeals, the judge concluded that the reasoning of the Court of Appeal was “far-fetched” as the constitutional provisions relied upon by the Court of Appeal in the said appeals to shut out any discussion by the Bar only went so far as to prohibit parliamentary debate on judicial conduct without a substantive motion. Significantly, Justice Hishamudin observed that the “restriction or the prohibition is not imposed on the general public” and that he “could not fathom how such a conclusion (with its startling consequences) can be arrived at by the Court of Appeal.”.

Rightly so. The Federal Constitution guarantees the freedom of association and expression. The Legal Profession Act enumerates the object of the Malaysian Bar. These can be resolved to one primary object: upholding the rule of law. The conduct of Tun Eusoff Chin and V K Lingam was clearly questionable and, if left unaddressed would have undermined the administration of justice. The Lingam Commission report has vindicated the Bar’s position. We would have not got there if the Bar had not marched and if it had not convened an EGM to underscore its demands for a commission of enquiry.

The Lingam Commission report was however merely that, a report. The recommendations regrettably do not have the force of law and matters have been left to the Attorney General. We have yet to hear of what steps have been taken and what the Attorney General proposes to do. One could not be faulted for thinking that nothing much is going to be done perhaps in the hope that time will dim our collective memory of events.

And perhaps it will. Though the promises of reform have been welcome, they they do not indicate that for those of us who champion the rule of law, the struggle has ended or that victory has been secured.

It for this reason that the Bar and this nation owe a debt of gratitude to Justice Hishamudin, not only for having had the courage to state the obvious but for having stated for posterity what needed to be said. In doing so, he has reminded us that though judges and lawyers come and go, though regimes change, the rule of law remains if we wish it to.

MIS

Mr Incredible

Nazri's interview with Aniza Damis of the NST ('Interview with Nazri Aziz: The walk, the video, the panel', 28.10.2007) is classic Nazri. In his inimitable style, Nazri reminds us of how much we are to blame for the Government we have.

I am at a loss as to how to summarise the points he makes without doing him too much justice, so I have set out the interview below. It is a chilling indication of how far removed the Government is from the needs and aspirations of the people, of how drunk with power those who lead us are. It dramatically underscores the need for us to start thinking about what we need to do to improve the system around us. Judging by Nazri's comments, the Government is in no hurry as its interests, and by that I take it those of the individuals who form the government, are served.

My comments have been inserted (bold, italics) where necessary. The version set out is from the on-line edition of the NST. I have not edited text, but have compressed sentences for ease of reference.

MIS

Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri Abdul Aziz, who is the de-facto law minister, talks to ANIZA DAMIS about the controversial video clip, the judiciary, the Bar Council and bloggers

Q: Is there a crisis in the judiciary? Why is there a perception of there being one?

A: There isn’t a crisis. It’s a false allegation. The perception has been created by some people. When I go back to my constituency, nobody talks about it. When people do not go to the courts to settle their disputes, that’s when there’s a crisis. But I don’t see that. The few people who are unhappy, make a lot of noise. It is reported, people read, and think there is a crisis.

Crisis means it involves the whole country but nobody talks about it. I even asked my fellow members of parliament (MP) but nobody talks about it. So, what crisis are we talking about? The crisis is in the minds of those who created it.

This is hardly a surprising answer from this Minister. Is there a crisis? The answer is obvious. If true, the video shows that appointments and promotions were not made on merit but rather allegiance. It shows that corporate and political interests were factors, as well as patronage. It shows that at least one senior member of the Judiciary (if the conversation was in fact with a senior member of the Judiciary), responsible for appointments and administrative decisions, was beholden to external parties and was prepared to exercise discretion and make decisions by reference to external considerations. If true, the rot has gone deep. This is a crisis.

If it was not a crisis, why did the Government set up the Investigative Panel.

And, as for talking to his fellow MPs, the Minister is obviously not talking to the right MPs. The Opposition has been screaming for a Royal Commission.

Q: Some 1,000-2,000 lawyers were involved in the Bar Council walk. Are you saying that that many lawyers have been misled?

A: Only 1,000 went to the ground. There are 13,000 registered members of the Bar.

Q: You don’t think 1,000 is enough?

A: 1,000 of 13,000 — is that a majority? What’s the big deal?

In a democracy, the minority cannot control the majority. The minority does not speak for the majority.

The Bar marched. The Bar is charged with upholding, without fear or favour, the due administration of justice by the Legal Profession Act. The Bar and the Judiciary are the twin pillar of the justice system. It was and is a big deal.

Democracy is not about majoritarianism. It is about exercise of rights by the majority having regard to the rule of law and the Constitution, and with regard to the equal rights of all. If it was a question of simple majority, the law would be as dictated by the majority. Though the Minister appears to think that this is the case, this is not the correct position in law. The Constitution does not appear to figure in the Minister’s analysis. This is surprising considering the oath he took to uphold the Constitution when being sworn in as a Minister and a Member of Parliament.

Q: Aren’t the views of the minority also important?

A: But (they are) not (the) majority. If there are any decisions to be made, it has got to be the majority.

The views of all minorities are important. It is the Rule of Law, not Rule By Law. It is might for right, and NOT might is right.

Q: So, if you wanted to be convinced (that there is a crisis), you would need 7,000 lawyers to walk?

A: Even then, it’s still not important to us, because the lawyers are not the only people who use the courts. The ordinary people use the court in their disputes.

It must be a majority of the population who feel that there is a crisis. Otherwise, there is nothing.

The population, reflected by civil society, has turned to the Bar for leadership on this issue in light of its pivotal role in the justice system. Civil society itself has reacted. Civil society is made up of a range of interest groups, of diverse backgrounds.

If it did not matter, why was there a tremendous police presence during the march.

Q: Do you really want that many people marching in the streets?

A: No. You don’t have to have millions of people marching in the streets. Let the people decide, whether there is a crisis or not, through the legal means of sharing your dissent or anger — through the ballot box.

The events of Pantai Batu Buruk and all the other demonstrations held recently show how the Government would react to a gathering of the rakyat. Nazri himself has declared that the Election Commission is not independent.

A: Then you can say, “Let’s have elections once every three years then.” We have to work within the system that we have.

Q: So, what you are suggesting is, if people are unhappy with the judiciary, they should vote BN out?

A: Ya.

I disagree. The Government is not the Judiciary. The Judiciary is not the Government. I do agree that amongst other things, the rakyat should treat this as an election issue.

Q: But what if people want a BN government, but they also want you to ensure a clean judiciary?

A: So then go talk to the judges — why talk to us? I’m the Executive. How can they ask me to sack the chief justice (CJ)?

No one is asking the Minister to sack the Chief Justice. The rakyat are asking for a Royal Commission of Enquiry. The Minister is being disingenuous. The power to suspend and enquire is with the Agong acting on advice. The power to establish a Royal Commission is with the Agong. Petitions have been submitted to the Agong asking for a Royal Commission.

There is no question of speaking to the judges. The Head of the Judiciary is the Chief Justice. He is implicated.

Q: You’re the de-facto Law Minister. And they are not asking for a sacking — they are asking for a more transparent appointment system.

A: We’re talking about the independence of the judiciary. I don’t speak for the judges. You want to clean up the judiciary, go and speak to the judge.Then, once the judges decide, we will accommodate the procedures. Lawyers can criticise the judges or judiciary if they want to. But if I, as an MP, criticise, then I am interfering. So, the best thing the lawyers can do is speak to the judges — tell them how important it is to clean up the judiciary.

I’m sure the judges are also concerned about their image. And if they so decide, and say, “Look, it is time that we change", then we will accommodate them — amend the Constitution, or whatever. It has to come through the judiciary — not from me. When they (the lawyers) went to the prime minister they are asking him to interfere. Tak boleh (Cannot).

Twenty years ago, they were very angry with us. The prime minister used the procedure to sack the CJ. Now you are asking us to use the procedure to do the same thing? Why is it that 20 years ago we cannot do that, but now we can? Is this at the whims and fancy of the Bar Council members?

I feel their problem is with the individual; not with the system.

There is a Malay saying: Marah nyamuk jangan bakar kelambu. You are upset with one individual, you want to throw away the entire system. Later, if you have another system, and you don’t get along with the CJ, do you want to change the system again?

The Minister is being evasive. The system has been utilized by the Executive to appoint the Judges we have. The video, if authentic, reveals how the system has been manipulated. This manipulation, if true, has been permitted through the system simply because it is not transparent nor is anyone directly accountable for the appointments.

The system of appointments and promotions is, as such, open to abuse. This is why the system needs to be improved. An improvement can only be in the interests of the nation as it will directly manifest in the competence, quality and independence of the Judiciary. That is why the Bar has asked for the establishment of an independent commission for the appointment and promotion of judges.

Speaking to the Chief Justice is out of the question. He is implicated. He who is to be judged ought not judge. It is as simple as that. The Government itself is implicated and should not be acting in its own cause.

Q: But if we had a transparent system, perhaps all judicial appointees would be acceptable to the people.

A: But if you have a royal commission for the appointment and promotion of judges, you might not agree with the decision, too, because members of the royal commission are also human beings. Tell me, who appoints the commission? The system is the same. The appointment of the commission will be made by the king, on the advice of the prime minister. The commission would be there, but the Bar Council will not be happy, and then you’ll have another system (change).

The Minister is being evasive. A system can be fashioned to ensure, as best as possible, the right process and, accordingly, the right appointments on the basis of merit, competence and impartiality. The English system, recently introduced, relies on a Judicial Appointments Commission which makes recommendations. Though the Lord Chancellor is entitled to reject the recommendations, he must give his reasons in writing. These reasons can thus be scrutinized.

The members of the Commission could be senior members of the civil society, the civil service and retired judges. They must, of course, be persons of integrity and in whom the rakyat have confidence. This is not an impossible requirement. The Minister should not allow his cynicism to stand in the way of good judgment.

Q: Can the commission be appointed by consensus or stakeholders?

A: Why stakeholders? Stakeholders are people too. Do you want to have an election? You know what will happen — people will campaign to become members of the commission and then they’ll be compromised, because they want to be chosen by the people. And then the judges will have to kow tim (settle) with them again — it’s the same thing.

The Minister appears not even to have considered the many models available, some of which have been found to be satisfactory. There is a wealth of literature on the subject.

Are we to change just because 1,000 lawyers are unhappy? The Constitution must be amended by two-thirds of MPs; and the two-thirds represent the majority of the people. If we MPs are not convinced, how can we amend the Constitution? We can’t listen to the views of just 1,000 lawyers. Since when was the view of 1,000 lawyers more important than that of the 11 million who voted for us?

Lawyers are not the only stakeholders. It is also the people in the streets — they are the ones who go to court.

A former Chief Justice, Tun Dzaiddin, recognized that public confidence in the Judiciary was at an all time low when he came into office. Nothing has changed since then. Independent international monitors, such as the World Bank, have noted a decline in public confidence. This is not only about 1,000 lawyers. This is about a system that should work the way it should.

And do all the Barisan MPs agree with the Minister?

Q: You have said the government was happy with the current system of appointments. Why?

A: We found that the system works for us. We inherited this system (from the British), and for 50 years it has served us well. Something which has not brought us any problem, why should we change?

The system works for the Government? Perhaps the Minister should explain what he means by this statement. The system should work for all. That is what ‘independence’ means.

The system shifted in practice post 1988. There has been minimal or no consultation with the Bar on appointments and promotions. This had been the practice before 1988. There appears to be no coherent basis for promotions, this has been at the whim of the Chief Justice. The video, if authentic, points to this fact.

If we need to change this system, we would need a clear indication from the judiciary.
Even then, before you change you have to go and see the Malay rulers. Out of courtesy, you have to tell them. Any slight change, we have to see the Malay rulers first. Once they agree, then you’ve got to get the agreement of the judges also, because this involves them.

The question is has the Government seriously appraised the situation? What steps has it taken to do so. Have the Rulers been appraised. All we have heard is dismissive remarks.

I am only interested in no interference by the Executive. When I became minister in charge of the judiciary, I wanted to make sure that what happened 20 years ago should not happen now. So, please do not ask us to interfere with the judiciary.

The Minister is not in charge of the Judiciary. The Chief Justice. The Minister of Law is responsible only for the administrative aspects of the system, not the justice system.

We are interested in there being no interference by the Executive too. The video, if authentic, shows that there was and could still be interference. The letter written by Syed Idid J showed that there was interference. There appears not to have been any meaningful investigation into the allegations in the said letter. If there had been, the rakyat have not been told of the same.

The prime minister is a good man, he respects that, so he doesn’t interfere. That’s why you can see judges now making decisions which may sometimes be negative towards the government. That’s okay.

I am glad the Minister thinks so. I wonder when Hishamudin J and other deserving judges are going to be promoted.

They are free to make their decisions without interference. The same goes for how judges should be appointed. But if the call for change comes from the judges, it’s okay.

Q: Is the tenure of the chief justice going to be extended?

A: I don’t know. I don’t know anything.

If he is the Minister in charge of the Judiciary as he claims, why does he not know?

Q: The video-clip issue will not yet be settled at the time of his retirement (scheduled for Thursday). Don’t you think that it’s rather unfortunate for him to retire before this matter is settled?

A: I don’t know whether it’s fortunate or unfortunate. That is the prerogative of the prime minister.

Q: Has the prime minister indicated anything to you?

A: No. As I said, I don’t interfere. I only do things which the prime minister asks me to do. I never ask about things that I am not supposed to be making decisions or that I am not supposed to know.

The Minister admits that his views are those of the Prime Minister.

Q: If you just take into account what is printed in the media and what comes out in the blogs, it would appear that there is a crisis in the judiciary.

A: To me, if there were no newspapers, if there were no blogs, then it’s just mere chit-chat in the coffeeshop. That’s all.

And the video is obviously fictional as well. The view in a hole in the sand is not a comprehensive. Acting like an ostrich will definitely make the Government myopic.

Q: Coffeeshop chit-chat is not important?

No. The people are important. This is a government elected by the people, for the people. So, people means the majority. If we didn’t have blogs, if we didn’t have newspapers, who in this world would know about it? But because of technological developments, you are able to chit-chat (about it). It’s just chit-chat.

It is not just chit chat. There is meaningful discussion taking place in society. But then, the Minister has already declared that as the Government has two-thirds of parliament, nothing else really matters.

Q: But the fear that is felt is genuine.

A: So what do you want me to do? Ban all these bloggers? Shut down all the newspapers? I don’t think so. We must live with the fact that this is now a modern world. Technology has enabled us to get to know each other so news gets moved faster.

No, the Minister should address the concerns and fears. He, and the Government, should recognize that they serve the rakyat. The rakyat does not serve them.

Q: So, you don’t think it’s important to try to address the worries of these people?

A: No. It’s not important. Why do you put so much importance on bloggers? You know what rubbish has been written in the blogs?

The Minister has admitted that the he, and by virtue of his acting only on the instruction of the Prime Minister, and the Prime Minister do not care about the worries of the people.

Whether blogs carry ‘rubbish’ is a matter of opinion. The rakyat are allowed their opinions. Just as the Minister is.

Q: Do you read blogs?

A: I don’t. I don’t waste my time. The few pieces that people print for me are just rubbish. I’d rather spend my time to do things that are constructive; that go down directly to the people who are really in need of the help of the government. Our bloggers are really not up to standard. When they put up something, it’s not something that they want to discuss in a very intellectual way. It’s more because of their anger - the language they use. Why should I read all this rubbish? When the standard of our bloggers is upgraded, then probably I will look at what is written. But anyway, they are a minority. My concern is for the majority.

A Government’s concern should at all times be for all, and never just for the majority. Who is the Minister helping, who are these people who are in need of help? Is the Minister willing to admit that the press is regulated in a manner that has denied Malaysians of crucial information. Blogs have been at the forefront of bringing to interested Malaysians opinions and information essential to their making informed decisions.

Q: Indians in Malaysia are a minority. Does that mean that they don’t count?

A: No, not in that minority sense. I am talking about bloggers. When you talk about minority in the sense of perkauman, they are very important, because they are our rakyat, a rakyat that needs to be helped. Bloggers don’t need to be helped. They are merely throwing rubbish into the blog.

I have no concern for and care about bloggers.

The problems of Indians as a minority is different from the problems of the bloggers. You must appreciate that. I don’t care about the bloggers, but I do care about the minority Indians. In my constituency, I take care of them. You can go to my constituency and see what I have done for the Indian minority. I was the one to open the training in Mara for the Indian youths. These are my concerns.

Good for the Minister. He should perhaps share what constructive measures have been taken by the Government to address the needs of the Indian community, in particular hard core poverty, education and employment needs. It would be interesting to hear how the Government has approached the question of addressing the needs of marginalized communities in a sustainable and coherent manner.

Q: What did you mean when you said that, by walking, the lawyers were behaving like the opposition?

A: Lawyers have got stature in the eyes of the public. And they are apolitical. Also, I have told them that we will work together; never again should the confrontation of 20 years ago be repeated. It doesn’t look good when the government is at odds with either the judiciary or the Bar Council. So, I opened up the doors, I’ve helped them in many ways, to hasten the Legal Profession Act (Amendment) for instance. I did not close my door to them. So, I was surprised when they suddenly decided to walk and demonstrate. I feel sad, because these are lawyers — my profession also — and I would rather see them being accorded the respect that should be given to them.

If the memorandum is from the Bar Council, they would have been given an appointment to see the PM. I would have preferred that the memorandum was brought to the PM’s office. They would sit down with the PM, discuss for one or two hours, and then hand the memorandum over.

But by walking, it is like you are already partisan, you have already made up your mind to oppose the government; that you cannot work with the government, that’s bad.

The Bar is apolitical. It is neutral. Its sole concern is the due administration of justice.

There is no question of opposing the Government. The Government has emphatically declared its position on the question of a Royal Commission. The Bar has submitted countless memoranda, including one on the establishment of an independent judicial appointments commission. The Minister himself has rejected the need for such a commission on the basis that the Bar does not matter, only the majority does.

The Bar has also correctly taken the position that the question of the video is a serious and urgent one. The Government appears to have taken the contrary position.

Peaceful demonstration is a universally recognize method of expressing a view on a matter of crucial significance. Peaceful demonstrations are not the sole province of the opposition.

Q: Bar Council president Ambiga Sreenevasan said the reason they walked was that they felt all their appeals were falling on deaf ears.

A: It will fall on deafer ears, I can tell you.

And the Minister wonders why the Bar marched?

Q: But why would you want to cover your ears?

A: They should know — they are lawyers. Their profession is adversarial. When they go in to court, there are two sides — the defendant and the plaintiff. Even the two counsel cannot agree on how the law should be interpreted. So, you need the judge.
So, they fight. But at the end of the day, they respect the decision made by the judge. They go out, shake hands, that’s it.

In giving their views on the judiciary, they must understand that there are two sides to the argument. And theirs may not be the right one. So they must accept the decision. As lawyers, they should. They cannot expect that whatever memorandum they give to us, we must agree.

Why couldn’t they have called to make an appointment? I’m sure the PM would have met them.

Deafened ears do not lend to constructive discussion, Minister.

Q: Maybe walking just says that they are partisan towards justice?

A: I wasn’t complaining about their memorandum. It was the way they did it — demonstrating on the street. The opposition was there. When you go on the street, how are you going to stop the opposition from coming in?

In a meeting with the PM, those who are the opposition — who are not genuine lawyers — cannot go in. You should be apolitical. You are an NGO, you are not an opposition party. You have stature, you’ve got a position in public, people look at you with respect.

But the moment you take to the street, who is going to respect you? They’ll laugh at you. There are people who are laughing at you — but they don’t write in the papers Bodoh punya kerja! (fool’s errand).

The only laughter we hear is that of the Minister. This is a serious issue. His responses clearly reflect a cavalier attitude. If this is the Government’s attitude, we can only infer that the Government is in no rush to get to the truth.

Q: Is there anything wrong in walking for your beliefs?

A: No. But that is the way of the opposition. If you are a political party, we can understand. But if you are a respectable society, that’s not an honourable way to do it — not when the government accords you respect.

How can you bring yourself so low? The moment you do that, we don’t respect you.
If I say to you, “M****r*****r you!", can you say, “Eh, let us sit down, we’ll talk about it.” No! You are lawyers, man! People respect you. So, do it in an honourable way.

When the president of the Bar Council wants an appointment with the PM, she or he gets it. That’s how it is. That’s what I wanted, and I would have accommodated that. But they didn’t contact me. I was waiting. Ambiga knows my doors are open.

But, deafened ears, Minister? And profanity is really unnecessary. But then, the Minister is from the same political party as others who use vulgar language in parliament. One begins to wonder whether this is the UMNO ethos.

Q: If, for instance, the Bar Council wants to take that avenue now, can they still take it?

A: They can. I have already told them, go and engage with the judges. But if they ask me to do what they want me to do towards the judiciary, I won’t do it because I am the Executive.

There is no question of engaging the Judges. The Chief Justice is the Head of the Judiciary. He is implicated.

Q: The Bar Council claims that they have never been able to get an appointment with the CJ.

A: He’s retiring anyway.

I told them, “Fairuz is also a human being. Kalau you criticise, criticise, criticise dia — dia mana mau layan you.” (If you keep criticising him, he won’t entertain you). I can get a lot of things out of you if I talk to you nicely, but if I start shouting at you, do you think you will accommodate me? No way!

Extremely mature, Minister. Diplomacy is important but should not be the end all and be all for matters of national importance.

Q: But you are more than an ordinary person. You are also the de facto law minister.

A: But you cannot divorce me from the fact that I am also a human being.

The Minister reminds us often enough by his conduct.

Q: That’s very irresponsible.

A: Human beings, there are ways, how you do it. You want something, you talk. You don’t shout, and then expect to get something, no way.

So, pride and ego before justice and the national interest.

Q: Why didn’t the government empower the panel to compel witnesses?

A: Because we have to first determine the authenticity of the video clip, to make it into a formal and genuine complaint.

And how does a powerless panel do this?

Q: What if the video clip is genuine, but the person doesn’t want to come forward?

A: That’s not our problem. We have already set up the panel, it’s for them. As I’ve said, if I was the one who made the complaint, I would be very happy, I’d come (forward) and co-operate. There’s nothing to fear.

(Opposition MP Lim) Kit Siang said to me this morning (Wednesday) the problem is not that they are afraid of the public taking action against them; but they are afraid of the government.

I think that’s no excuse.

Explain to us then the prosecution of Irene Fernandez and Lim Guan Eng, the continued threats of ISA detention and other threats of reprisal. Explain to us how the whistle-blowers are going to be safe and secure, Minister. There is no legal protection for whistle-blowers. The Government is implicated. Where do witnesses turn to for safety.

Q: Why can’t you set up something that can compel a person to come forward?

A: Then you are forcing people. We want it to be voluntary. When you make a complaint to the police, are you being forced to make the complaint, or do you genuinely want to complain? You see, that is the problem (with the current situation). You have to come to us.

Even if you don’t trust us with the tape, then we can always tell that fellow to come, show the tape, then we see, and you can take back the tape. But even then they don’t want to come forward. And their reason is that they are scared of the government. That’s not a reason.

That is the reason. It speaks volumes about the Government and the rakyat’s perception of the Government. We are a long way from "cekap, bersih dan amanah."

Update: It has been brought to my attention that I had not captured the full version. The missing sections and my comments can be viewed here. My apologies for the inconvenience.