Malik Hussein And The Independence Of The Judiciary

The Deputy Internal Security Minister, Datuk Fu Ah Kiow, is wrong. The decision of Mr Justice Hishamudin Yunus in the Malik Hussein suit against the Government for his wrongful detention and torture under the Internal Security Act (ISA) is not testament to the judiciary being independent (see ‘Decision Shows Judiciary Independent’, The Star, 21.10.2007). To the contrary, it is concrete evidence of there being basis for serious concern about the Judiciary and its independence.

The judgment has been declared a landmark judgment simply because the Government lost. When one considers the case brought by Malik Hussein, it would be difficult to see how any judge could have ruled otherwise. This is not to say that the judgment is not exceptional. It is for the fact that it is higly unlikely that many a judge would have ruled against the Government the way Justice Hishamudin did. The judgment is a testament to the independence and integrity of Justice Hishamudin, and his unwavering commitment to the rule of law.

In May 2001, Justice Hisahmudin ordered the release of Reformasi activists, Abdul Ghani Haroon and N Gobalakrishnan from detention under the ISA. They had been detained along with Ezam Mohd Noor, Raja Petra and 6 others. His judgment, which I had occasion to describe then as a ‘pioneering judgment’, was a tribute to constitutionalism and the protection of the individual from arbitrary acts of the Executive. The habeas corpus application for Ezam Mohd Noor and 5 of the others came up before Justice Augustine Paul (then in the High Court). The same grounds were advanced in support with Sivarasa leading the team there, as he had for the Ghani Haroon/Gobalakrishnan application. Justice Paul dismissed the application and held that the detentions were lawful (see here for commentary).

The day Justice Hishamudin declared the detention of Ghani Haroon and Gobalakrishnan, he also made a ground-breaking order restraining the police from re-arresting Ghani Haroon and Gobalakrishnan for a period of 24 hours.

A very short while later, Justice Hishamudin was quite suddenly transferred to the Civil Division of the Kuala Lumpur High Court. By coincidence or otherwise, he was not able to hear any further habeas corpus applications. He however went on to deliver several other very important decisions including the one in which he, correctly in my view, declared the Federal Court judgment in the notorious and highly controversial Ayer Molek case (see here for background) to be unconstitutional. Along the way, he also delivered judgment in favour of Anwar Ibrahim in the defamation case brought by Anwar against Khalid Jafri and also presided over the assault claim brought by Anwar against the Government and the former Inspector General of Police, Tan Sri Rahim Noor (see 'A Judge of the big events', The Star, 20.10.2007)

I have the highest regard and the deepest admiration for this man of principle. I moved the Court for the order suspending the re-arrest Ghani Haroon and Gobalakrishnan. Justice Hishamudin’s sense of fair play and justice came to the fore that day as he recognized that a re-arrest would be inhumane. It was a defining moment, and it shaped my understanding of how far the interests of justice could be advanced with a just man on the bench.

He embodies all the qualities that a Judge should have. His humility, patience and judicious temperament are well known at the Bar as is his willingness to learn from the lawyers appearing before him.

Which takes me to my point. With all these qualities and more, why is Justice Hishamudin still a High Court judge? He was elevated to the High Court bench in 1995. He has an excellent track record. Judges elevated after him have made it to the Federal Court, a court in which Justice Hishmudin should be sitting.

Perhaps it is these very qualities, cherished by the Bar, that has kept Justice Hishamudin in the High Court.

So, is the judgment a testament to the independence of the Judiciary? I do not think so. It is a testament to how unacceptable the current way in which Judges are elevated and promoted is. It is a testament to the challenges faced by those judges who have had the fortitude to act in accordance with the law and their judicial conscience in hard cases, challenges that, if there truly was judicial independence, would be non-existent.

For those of you who have not signed the People’s Parliament Petition – Save The Judiciary – please do so. The Judges need us as much as we need them. E-mail your name and IC number to savethejudiciary@gmail.com (to view the petition, go here).

MIS

Forgive Me

Forgive me, God
I looked into the Quran today,
I really looked.

Found nothing to support racism, corruption
Or the breaching of sacred trust
I read verses, I read between them
And no matter how much I tried,
I could not find anything about it being alright
to lie, cheat, steal and
to hurt, really hurt, people.
Injustice, it seems,
is not mandatory
is not permissible

I looked in the Quran today,
I really looked
And I did not find Malaysia

But then, who am I
To dare read and presume understanding,
Who am I to have the audacity to believe.
Who am I to think, to appreciate
what God expects of me,
all by my sorry self
when I was obviously given only
half a mind, and half an intellect
Safely esconced with the ulama,
the other halves lie there,
waiting for eternity
My passport to Heaven

Forgive me, God
For reading
Forgive me, God
For believing enough
to want to believe
Forgive me, God
For thinking that the Quran
was for me

I looked into the Quran today,
I really looked because I thought
that was what You wanted of me

I am sorry

MIS

Eid Mubarak

A belated Eid Mubarak to all of you. And my thanks to all of you who made the effort to send me Hari Raya greetings.

I spent the first day of Eid with my family in Penang. At dinner last night, I watched 2 nephews, a niece and a cousin horse around on a sofa (and no, there was no partridge in a pear tree). What struck me was between the 4 of them, there was a blend of chinese, malay (and I am not even beginning to attempt to work out the ancestry of the Malay side of the family), punjabi and tamil blood-lines.

All Malaysians, all Muslims.

As with every Eid, the forced time-out is a period for some reflection. And there was a lot to think about this year.

I was in Singapore last week-end with about 200 highly intelligent, articulate, empowered individuals, all under the age of 40. We were there for the Asia21 Summit, an annual event organised by the Asia Society for young leaders from Asia and the US to share experience, develop ideas and gain strength from each other. The range was very diverse, with journalists, investment bankers, civil society activists, entrepreneurs, each one doing something significant with their lives and touching the lives of others. The most striking feature of the individuals there, I think, was their eager anticipation of the future and their belief that they could do something important to effect a change, big or small. They all looked like (and as I got to know them, I also got to know that) there was so much promise in all that lay ahead for them. As uncertain as it was.

I had trouble trying to understand how this made me feel, mainly because I was not sure what I was feeling. As the event unfolded, I began to realise that I was feeling a mix of distress and envy. You see, I realised that if things went the way they did in this country, it was no point hoping for anything. Because, whatever we did or said or hoped for, things were not going to change unless ...

Unless...what?

Some say, that things are fine the way they are? Are they? The well to do: they do not send their kids to public shools if they can help it. Let's not pretend. The parents who can afford it send their children to private schools. We pay tolls for the highways we use. And if we can afford it, we go to private hospitals simply because we do not feel confident about the standard of medical care available. And judging by the stories we read in the papers, can anyone blame us?

So, what do we pay taxes for? Roads, we pay. School, we pay. Health care, we pay. Privatisation seems to be the most important word of the times, Islamization aside.

So, what do we pay for? I am not too sure. But I know what it is we are we are not supposed to be paying for. Corruption, endemic, core rotting corruption.

Yeah, right.

We pay for corruption. Through our noses. Inflated costs, transfer pricing. We pay for the robbery that happens around us.

Are we sure where our dollar goes? Are we sure that we aren't paying for something that we should not be paying for? Are we sure that the State is paying for what it should be for something it really needs? I am not sure anymore. Look at the Auditor General's Report. Listen to our Ministers; the self-jusitfying, self-perpetuating rubbish that they seem to believe that we believe.

Who needs the cartoons, the funny comics. The Malaysian cabinet is as much a joke as Malaysians need.

Accountability is a swear word in this country.

And does anyone in charge care? I mean, really care? I challenge: name me one person in the cabinet who is a statesman. Someone who is actually looking at the long term rather than the short term. Someone who is larger than the politics that keeps him/her afloat? Name just one, for I am at a loss.

Eid? Hari Raya? It's not there to thank the fact that we survived Ramadhan. It's there to remind us of who we are, who we should be, and who we shouldn't.

I sing Negaraku. I am a Malaysian. This country is mine as much as it is anyone else's. Were it otherwise, I would be singing Negaramu.

Eid Mubarak all, but only if you think that something needs to be done about where we are headed. And if you are, then start doing something about it.

MIS

FREE BURMA

www.free-burma.org

"If we look at this conflict as a straightforward eyeball to eyeball confrontation between Empire and those of us who are resisting it, it might seem that we are losing.

But there is another way of looking at it. We, all of us gathered here, have, each in our own way, laid siege to Empire.

We may not have stopped it in its tracks - yet -but we have stripped it down. We have made it drop its mask. We have forced it into the open. It now stands before us on the world's stage in all its brutish, iniquitous nakedness. Empire may well go to war, but it's out in the open now - too ugly to behold its own reflection. Too ugly to rally its own people."

Arundhati Roy, 'Confronting Empire'

Crisis Of Justice Demands Urgency

Perhaps YB Nazri was correct when he observed that there was no judicial crisis. What we are is a crisis of justice that embraces the whole nation. As explained in my post on why the Royal Commission is crucial, if the video is authentic, the implications and ramifications are mind boggling.

A crisis of this nature requires an urgent response. What we have seen however is the complete opposite. There has been no move on the part of the Government to seek that the Chief Justice take a leave of absence. The Investigative Panel is gradually cranking itself up to speed to an end no longer uncertain. In my earlier post, I suggested that there was ambiguity about what determining the authenticity of the tape meant. That has since been cleared up. The chairperson of the Investigating Panel, Tan Sri Haidar is quoted in The Sun today (see 'Probe panel meets tomorrow on damning video-clip') as declaring:

"The meeting will examine how to go about verifying the authenticity of the video (from a technical perspective). Our task is purely confined to that."

What happens after that? Another cabinet meeting, another panel, more time? And what happens in the meanwhile, we pretend that everything is alright? And what if the investigations finally reveal that the concerns of civil society were founded and that justice had been skewed to improper end? Does the Government then expect all of those who are before the Courts now, or who have been before the courts in the period of time in issue, to just shrug and say "let by-gones be by-gones"? There is already talk of litigants going back to court to set aside judgments on the basis of apparent impropriety.

The lack of urgency on the part of the Government is a strong indication of a lack of appreciation of the seriousness of the matters at hand. A more sinister interpretation of this attitude suggests that the Government may not be keen on getting to the truth, or to the truth too quickly. Does the Government not see that a tainted judiciary and the possibility of the uncertainty in the administration of justice is potentially destructive to its own interests, to the extent that those interests are separate and independent from the interests of the rakyat, as much as it to those of the rakyat?

And as for YB Nazri, what can be said has been said eloquently by KJ John in his latest comment for Malaysiakini ('Here's the crisis, Prime Minister!'):

"It is said that, in the country of the blind, the one-eyed is king. How true, but before our so-called law minister believes this to be so, let him be forewarned that more than 2,000 lawyers have already marched to say that they can see with both eyes and that they are not color-blind when it comes of issues of justice."

The Government should start taking this seriously. Lawyers talk of flood-gates. There is a tsunami on the way.

MIS

UPDATE: The Investigative Panel has since confirmed that it does not have any power and will be dependent on individuals voluntarily appearing before the Panel to provide evidence. Datuk Shankar is quoted as saying:

"The panel has got no legal power at all. The only authority that it has been given is these terms of reference and then to compile a report and send it to the appointing body. We have no power to administer oaths, to compel witnesses to come to us [...] We have no immunity under the law either."

This echoes a reiteration of the limited mandate of the Panel by Tan Sri Haidar who is quoted as confirming that the mandate is :

"confined to the authenticity of the video clip because we are not going into the merits of whether (there is any) truth of the content. Our terms of reference is to verify the video clip, stop there. After that is up to the government to decide."

(see Malaysiakini 'Haidar: We have no power' and 'Q&A: Don't throw stones at us')

Sacred Bureaucracy?

Egyptian blogger Nora Younis writes of how she was required to specify not only her religion but that of her lawyer at the Real Estate Registration Office in the city in which she lives:

"Yesterday morning I went to the Real Estate Registration Office to sign a notary form, appointing my lawyer. There, I was surprised to discover that I was required to prove my religion and the religion of the lawyer I wanted to appoint. And because I wasn't planning to get married to the lawyer yet, it never crossed my mine to ask him about his religion before this. All that I wanted was a competent lawyer for a specific cast and I don't think it will effect me or the Egyptian state whether he was Jewish or Shinto or even an adherent of the sacred carrot!" (read more here at www.globalvoicesonline.org)

Makes me think of where we are headed with the way things are going here with the so called Islamization of this country. And before anyone says it, the fact that it is happening elsewhere does not make it any better. Bureaucratic process is not sacred just because it is is put in place in the name of Islam. For those who think otherwise, I would be glad to hear from you - in a constructive manner. If bureaucracy was sacred and divine, as some can be understood to suggest, explain how a Malaysian syariah court judge and a religious department officer have been charged for corruption (see here). Or is the Anti-Corruption Agency blaspheming too?

MIS

Free-Burma Campaign

Urgent. Received this message from the Free-Burma campaign. Go to www.free-burma.org for details.

MIS

Free Burma!
International Bloggers' Day for Burma on the 4th of October

International bloggers are preparing an action to support the peaceful revolution in Burma. We want to set a sign for freedom and show our sympathy for these people who are fighting their cruel regime without weapons. These Bloggers are planning to refrain from posting to their blogs on October 4 and just put up one Banner then, underlined with the words „Free Burma!“.

www.free-burma.org