On Fear Mongering And Tommy Thomas

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MIS

On The Reform Agenda

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MIS

On The Attorney General

There are calls for a non-political Attorney General. 

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

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

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

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

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

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

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

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

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

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

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

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

MIS

Putting an end to child marriages

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MIS

(This article first appeared in The Edge on 15.12.2012)

Translating Policy Into Practice

Translating Policy Into Practice

The media reports that the cabinet has decided that children of marriages where one spouse subsequently embraces Islam would remain in the faith that the parents had agreed on at the time of marriage. The cabinet has also appeared to decide that the civil courts are to dissolve such marriages.

These decisions are welcome ones. They indicate willingness on the part of the administration to deal with issues that have for some time now been studiously avoided, a state of affairs that had prompted the establishment of the coalition of NGOs calling itself “Article 11” and its “Equal Protection For All” campaign in 2006.

The decisions also indicate the policy position of the current administration, one that on its face appears to adhere to the constitutional guarantees of equality and the right of parents to choose the religion of their children. The Constitution guarantees the right of a parent to decide the religious instruction of a minor child. The Constitution provides that words in the singular are to be understood to include the plural, parent being “parents”. By virtue of this and the guarantee against discrimination on grounds of gender, it is clear that the intention was to vest guardianship rights in both parents. This is reinforced by federal law.

I am however uncertain as to how this policy position is to translate into practice as the cabinet has little or no direct power in this regard. Religion is a matter for the state and not the federal government; each state has exclusive authority over the administration of Islam within the boundaries of that state. This would include matters of conversion of children and the jurisdiction of the syariah courts, both of which are matters in respect of which the state legislative assembly has the competence to enact laws on.

Though the constitution itself lends support to the policy position of the cabinet, and as such could be invoked to reign in those state agencies involved in these matters, the question of whether there has been a transgressing of limits is one for the courts. The courts have however in recent years handed down decision after decision that have undermined the constitutional framework and entrenched as principle the very matters that the cabinet now wishes to address.

In 2004, the High Court in Shamala Sathiyaseelan ruled that the converting husband had a right to convert the children into Islam without the consent of the wife. The court also ruled that it had no jurisdiction to entertain the wife’s application to challenge the legitimacy of the conversion. Accepting that the wife was without recourse for not being able to move the syariah court as a non-muslim, the court counseled her to seek the assistance of the Majlis Agama. This is a scenario that the majority decision of the Federal Court in Lina Joy reinforced in 2007

In the same vein, a majority bench of the Federal Court in Subashini Rajasingam concluded in 2008 that either parent could convert a child of the marriage into Islam. It ignored the non-discrimination guarantee as well as the interpretation provision for words in the singular and focused on the word “parent”, interpreting it to mean “parent” in the singular. The majority also decided that the muslim party was free to commence proceedings in the syariah court even though the non-muslim party was entitled to seek dissolution and maintenance and custody orders in the High Court.

These decisions and others like them stand in the way of the cabinet implementing its policy position. It is ironic that the decisions noted above were largely the result of ill conceived and shortsighted positions taken by the Attorney General’s Chambers on these matters, positions that sought to denude the High Court of jurisdiction to allow for the preservation of an unjust status quo.

To move forward, the cabinet must therefore take the bull by the horns.

I assume that the cabinet made its decisions based on advice from the Attorney General. It is therefore imperative that the Attorney General articulates his revised position on these issues in the courts as soon as possible. The Shamala case comes before the Court of Appeal on Monday and he should apply to intervene to make the necessary points. Being matters of great constitutional significance that are clearly in the public interest, they warrant his involvement.

(Malay Mail; 24th April 2009)

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

Free The 31

31 persons who participated in the HINDRAF rally have been charged with attempted murder. From a report by Malaysiakini (‘Attempted muder charge for Hindraf protestors’, 04.12.2007), it appears that the charge has been framed on the basis of an apparent intent to murder a police officer, Dadi Abdul Rani. The so-called attempt was alleged to have occurred during the debacle at the Batu Caves.

Let us leave aside the merits or de-merits of the charge for the moment and consider their context. The events at Batu Caves are now notorious. The version presented by the police was that they were compelled by circumstance to resort to tear gas and water cannons. The objective evidence (see Jeff Ooi's Minority Report series) points to a very different scenario; in the early hours of 25th November, persons at Batu Caves, and I use the word ‘person’ advisedly as it is not clear at all that these persons were going to participate in the HINDRAF rally, were corralled into the Batu Caves temple compound. Police officers then launched an offensive using tear gas and water cannons. It was during this melee that bricks and pipes were apparently thrown, it would appear in response to what the police were doing.

The Attorney General is quoted in the Malaysiakini report as saying, "They threw bricks at his head. Do you think it will not cause death?".

It does not follow that every person who throws a brick at someone intends to commit a murder. To have charged the accused for attempted murder, the Attorney General in his capacity as Public Prosecutor, must have been satisfied that every one of the 31 persons had intended to cause grievous harm to Officer Dadi of such a nature that his death was not unforeseeable. The Attorney General must be satisfied that there is enough evidence of such intention, and of actions motivated by such an intention, that were such evidence left unrebutted, a court would convict the 31 persons.

The Attorney General appear to think that there is sufficient evidence. From reports, this appears to be on the basis that anyone who threw a brick at the head of someone would have reasonably foreseen that the target might be injured to an extent that the target died.

In my view, this would not be sufficient. There has to be evidence that these 31 persons specifically attacked Officer Dadi. There has to be evidence that having chosen to attack Officer Dadi, these 31 persons then proceeded to attack him in such a way that his death by such attack would be foreseeable.

The events at Batu Caves, in my view, and I have not had sight of the charge sheets, do not allow for a clear conclusion of this nature to be drawn. Is the Attorney General saying that police officers who have beaten demonstrators or participants of rallies with batons on their heads are also culpable for attempted murder? Is he saying that the police officer who drew his firearm and shot 2 persons at Pantai Batu Burok also attempted to murder the persons he shot. I think not, not because the Attorney General has turned a blind eye to those events but because the actions of those police officers, as offensive as they may have been, simply do not form a basis for such a conclusion.

If they do, then the Attorney General is guilty of selective prosecution. Though in law the Attorney General as the Public Prosecutor has the absolute discretion to charge a person of a crime, this discretion not being justiciable, his discretion must be exercised in an even handed manner and not at whim and fancy. The Federal Constitution guarantees equal protection before the law. This precludes arbitrary invoking of legal process.

From this perspective, it is not unreasonable to think that the decision to charge may have been prompted by other considerations, principally a desire to stamp out any attempt to express disagreement and frustration with the way things are. The discretion to mount prosecutions has in this way been harnessed to the machinery of a government that tolerates little or no resistance as it engages in a perverse political dance with the leaders of HINDRAF.

How else does one explain the fact that the leaders of HINDRAF have not been charged with any crime though, if one believes the statements made by the authorities, there is sufficient basis for a prosecution? How else does one justify the presence of the Attorney General, recently returned from the International Court of Justice in the Hague, in the Klang Sessions Court?

The decision to charge the 31 of attempted murder, paving the way to a refusal of bail, was cruel. Though attempting to inflict bodily harm is not to be condoned, the authorities must see that the 31 and their families, their children, have been made pawns. They have been made to suffer, and will continue to do so as they await their trials, for nothing more than being in the wrong place at the wrong time.

Free the 31.

MIS

An Open Letter To The Attorney General

(Published in the NST, 17th Dec 2006 as "An Open Letter To The Attorney General: Intervene To Ensure Justice For All")

Dear Sir,

I have had the privilege of meeting you and also of appearing against you in several constitutional cases. I have found you to be reasonable, fair minded and open to all views. It is to those qualities that I now appeal.

I write concerning the matter of Anthony Rayappan and all matters like it. At the core of disputes of this nature is the issue of access to justice. Reactions to the actions of the religious authorities have not been so much about the claims of these authorities but about the recourse to the syariah courts which have had the consequence of denying the claims of family members and of their right to be heard.

I believe it bears restating that under our constitutional system every person is guaranteed a right to access the courts to address a grievance. Where there is a right, there is a remedy. And yet, in these cases the reverse appears to be true. Parties who have a legitimate basis are being shut out from the courts. Worse, the Constitution is being used to justify this unfairness.

It may have been the case that there was a reasonable basis to suppose that Rayappan, or M.Moorthy before him, had in fact converted to Islam. I do not know. It may also have been the case that the family members of the deceased had a basis to conclude that they had not. Both sides were as such entitled to get a declaration by a court in order to be sure about what it is had to be done.

And that is the way it should have been with all parties appearing before a judge of the High Court and presenting their respective cases. That is how it has always been, even after the introduction of Article 121(1A) of the Federal Constitution.

The affair, like the one before it, became controversial, because the Majlis Agama (Religious Council) took the view that not only was it entitled to move the syariah court for a declaration, it was the only manner in which this issue could be solved, as the syariah court had exclusive jurisdiction.

This view is erroneous. The syariah court only has a limited jurisdiction over persons professing Islam. The Majlis Agama is a body corporate and cannot in law be a “person” or a “person professing Islam”. Additionally, the family members are not Muslims. There is no question of their “submitting” to jurisdiction as has been suggested nor can the syariah courts compel their attendance as was attempted. The Constitution itself has defined and limited the jurisdiction of the syariah courts and one cannot create jurisdiction by submission. Even if there was law to that effect, that law would not be constitutional. As such, it is only the High Court that can hear disputes of this nature.

Article 121(1A) does not change this. Subsequent to the amendment which introduced this provision, the apex court in at least three decisions explained the manner in which the jurisdiction of the High Court is to be determined. In particular, it was declared that where the parties to the dispute include non-muslims the High Court should hear the matter.

That is the law. Nothing has changed in between and yet for reasons beyond comprehension the view of the Majlis has, by default or otherwise, become the definitive view. This has allowed for an undermining of the Rule of Law and of constitutionalism. It has also allowed for the Constitution to be turned on its head. How else can one describe a situation where access to justice is denied in the name of the Constitution?

I write to you as the principal guardian of the Constitution. I urge you to intervene to correct this sad state of affairs. As the Attorney General, I would say that the burden is squarely on you. You have the standing and influence to play a pivotal role in bringing some sense to the situation. The scenarios that have played out involve questions of public law in as much as they do private law. They further involve state or state supported actors who are answerable to the state. The perceived unfairness has resulted in an erosion of confidence in the key institutions of the nation and the suggestion that discriminatory practices abound.

There are several ways in which you can approach the issue. Forgive my boldness for taking the liberty of suggesting them. I do so with the certainty that you will see my doing so as being prompted by nothing more than my duty as a citizen to act in the interests of my nation. As Malaysians, we are all charged with finding constitutionally just solutions.

First, as Attorney General you can and must publicly express your view as to how the Constitution guarantees equal access to justice and equal protection for all. You must express your view as to how situations like this should be handled. A statement by you will be of great influence and go a long way in guiding those in doubt or who are of mistaken impression. It is equally crucial for you to correct leaders when they air incorrect views. I believe that, to an extent, uninformed views have entrenched the mistakes further.

Second, your chambers could undertake a review of the training currently undergone by civil servants, especially those in the departments most involved in issues of this nature, with a view to ensuring that these individuals appreciate the constitutional framework in which they operate and the permissible limits. This would have to include the syariah court judges. These courts are established by law enacted by constitutional mandate, as is the law applied by these courts. It is imperative that the misimpression that the syariah courts apply syariah as distinct from enacted law be corrected. I believe that it is this misimpression that has allowed for a certain mindset to develop where questions of religion are put before duties and obligations in law.

Thirdly, where state actors are involved, your chambers could take a more proactive position in ensuring that legal positions are consistent with the Constitution. Where there are legal officers involved who are directly under your control, this is essential. Positions in court must be taken that are constitutionally correct so that no matter who wins at the end of the day, the Constitution and constitutionalism are not sacrificed. As a fellow lawyer, you would appreciate that all lawyers are charged as officers of the court with the pursuit of truth.

The situation we find ourselves in is not just a matter for the judiciary although it does play a key role. Controversy will not occur where Malaysians are all of like view where basic rights are concerned. Disputes will occur but we will be able to deal with this in the way we have always done; with civility, and with attention to and consideration of the interests of all.

In concluding, I urge you once again to come to the defence of the Constitution and the nation. They both need you.

Malik Imtiaz Sarwar
President, National Human Rights Association (HAKAM)

Rayappan: Constitutional Considerations

The Rayappan affair is worrying as, apart from the grief caused to the family, it indicates a total lack of understanding on the part of the Government and the Attorney General’s chambers as to how the separation of powers is meant to work in this country. Several points need to be made.

It is not for the Executive to resolve conflicts other than as a mediating party or, where the Executive is a party to a conflict, by offering a settlement. In the Rayappan affair, the Executive was not a party to the conflict. This was between the Majlis Agama and the family. The Majlis Agama had for its own reasons taken this matter to the syariah court and there were proceedings pending. The family had taken the matter to the High Court. Whether either party was right or wrong was a matter for the various courts to decide, though my view is that it was only the High Court that had jurisdiction.

By directing the Attorney General to determine Rayappan’s religious status, the Government in effect side-stepped the Courts. This was not legally permissible. It also creates the impression that the ultimate decision is with the Government and not the Judiciary. This line of thinking appears to have become more prevalent in the Government as of late and must be corrected. Decisions of the Judiciary are declaratory of the law and the Government, like all of us, is bound to follow the law as written and declared.

I recognize that the situation would be different if the Attorney General had advised the Majlis Agama to withdraw its case. The decision would ultimately have been that of the Majlis Agama, a party to the conflict. I believe this to have been the case although the media reports are ambiguous. If this were the case, then Malaysians are entitled to know why the Majlis Agama took the position it did in the first place. And if the Majlis Agama takes the view that it was correct in the first place, how could it allow the subsequent developments, that is the release of the body to the family for burial as a non-Muslim? This begs the question of whether there should be any intervention by the Majlis Agama in situations like this but that is a matter which I will discuss at another time.

Additionally, it is not for the Government to direct the Attorney General as was done in this case. The Attorney General may be requested to consider or look into a matter but he cannot be compelled to exercise his discretion. This is most obvious when one considers the discretion of the Attorney General when he wears the hat of the Public Prosecutor. The Public Prosecutor’s discretion to charge or to not charge as the case may be particular persons is entirely his own. Were it otherwise, the Government would be deciding who is prosecuted and who is not. I am surprised that the Attorney General seemingly complied with the direction instead of correcting the impression created. Though one can appreciate that diplomacy is required, this cannot be at the expense of public confidence in the system of government employed. Such confidence must be prioritized above everything else.

Quite apart from the constitutional and legal considerations, the Rayappan affair underscores the need for the Judiciary to deliver its decision in the Lina Joy case. The precedent set there will be of great value (if the Federal Court concludes on all the issues raised in a comprehensive manner) and go a long way to resolving the conflicts of laws that underscore the case and cases like it.

MIS