Race And The Poverty Gap

I have been traveling since last Friday. Internet access has not been a certainty and will continue to be irregular.

Being in new and different places is useful. It shows how different things could be, or how similar they are.

In Jakarta, the tower blocks reach out to the sky with the same ambition of the new projects being developed in Kuala Lumpur. They less successfully block out the squalor and poverty than ours. A small group of elites unthinkingly spend more on one meal out than most families earn in a month. They shop at designer shops that rival, or even beat, those in the best and most prestigious shopping localities in Kuala Lumpur. The elites, like those elsewhere, shape policy through their investments, their influence and support, hold their nation to ransom. The poverty gap widens every day and this is justified in the name of development and progress.

Much like it is in Malaysia.

This does not necessarily suggest a devious and sinister plan on the part of the administration. It could be simply a matter of perspective on what is needed, and as such what is expendable, for democracy. In Poland, the solidarity movement, spectacular for its validity and credibility, caved in to the free market, unleashing the beast, simply because the new democratically elected administration could not see any other option. More than 20 years later, there is a level of poverty and want in Poland that Lech Walesa possibly never saw as even a remote possibility as he pushed the movement forward. There is also unimaginable wealth.

I have increasingly found myself wondering what the guiding principles of the Malaysian administration policy on development and progress are. If there is such a policy in the first place. It sometimes feels as if there is none.

The 5 year Malaysia plans do not qualify as such, they do not allow us to understand the government's vision of where we will be in the next 30 years, other than in highly ambiguous and speculative terms. It is evident that there is a widening poverty gap, and the majority of the Malay community are falling victim to it as much as the other communities. From this, it appears that the societal safety net that a significant amount of tax goes to is not closely knit enough to prevent a significant number of Malaysians from falling through the gaps.

Leaving aside the extremist language of the HINDRAF campaign, the seemingly far fetched assertions of ethnic cleansing and state sponsored terrorism, this is what is being said: a significant number of the Indian community, predominantly tamils, are falling through the gaps into the poverty trap. In appreciating that many Malays have also fallen through the gaps into the same traps, we may be able to draw parallels and understand that racialist notions may not be the driving force behind what it is that ails Malaysia.

My sense is that it is the seeming absence of a coherent plan for sustainable and inclusive development. That is why many a Malaysian asks 'where will we be in 3o years?', 'will my children have a future in this country?'. These are questions that transcend racial boundaries. They are concerns that all of us share as we strive forward.

Malaysians are however fixated on race and religion, mainly because these are the staples of our public discourse. These are undermining, not only because they are divisive factors, but because they distract from the core issues. Insufficient attention is consequenty given to those aspects of our society that crucially require it. This is something that the Barisan Nasional has not let on that it understands. In this way, the pleas of the rakyat for accountability are not so much about a desire for a shift of power but rather an urgent call for more effective action on the part of the administration.

Many feel that time is running out. Oil reserves are depleting, there has been insufficient investment in human capital to allow us to reinvent ourselves effectively by break ing into new areas and seemingly increasing systemic corruption is a major deterrent for investment. Malaysia is fast losing ground, falling behind others of comparable development or potential as its ability to compete steadily dips.

There is no magic solution, a perfect answer.

At a forum earlier this year, I said that shifting leadership to the opposition - assuming that was practically possible - is not the answer. The opposition has no experience in governance. As much as some might say that the Barisan Nasional goverment could do things a lot better, a view I share, the BN government has an experience base of some 50 years to draw on. Solving the difficulties we are in calls for a greater commitment to fundamentals, an even greater willingness to account (as I understand things, this is the focal point of civil society efforts this year) and an understanding of the very real need to harness more effectively a collective viewpoint on development and progress.

MIS

In Solidarity

We are, in ways small and great,
The figures, the myths and legends
That we ourselves have invented.
Our dreams are self-portraits.
Our myths, our heroic legends,
Are the concealed autobiography
Of the human race
And its struggles
Through darkness to light
And through higher darkness again.

('Mental Fight', Ben Okri)

HINDRAF 5: ISA Detentions Side-Step Justice System

What need was there to detain the HINDRAF five under the Internal Security Act?

The ISA is a draconian law. It has no place in the modern and mature society that Malaysia is. It has been condemned internationally and locally. The manner in which the ISA allows for subjective detention without trial is violative of the fundamental liberties of persons detained in a manner that cannot be justified in any circumstance.

The Government’s position is that the five are threats to national security and public order and that they are a menace to the public for having lied about the Government in accusing it of ethnic cleansing, for having organized illegal assemblies and for having had links with terrorist groups (‘5 Hindraf leaders a threat to national security’, NST, 14.12.2007).

These accusations reveal the possibility of the five having engaged in criminal activity. Three of the five have already been charged with sedition (though I wish to stress that I do not view the offence of sedition as being constitutional). Chapter VIA of the Penal Code was recently added to allow for the prosecution of persons involved in terrorist activity. Appropriate arguments could be mounted to oppose bail to ensure that pending the trial of the five, they would be prevented from fleeing the jurisdiction and, arguably, from repeating the offensive activity.

We cannot lose sight of the fact that no matter how heinous the activity complained of may appear, accusations remain mere accusations until and unless they are made out in a court of law. Every person is presumed innocent until proven guilty in a court of law.

The detentions are therefore clearly preemptive, allowing for a side-stepping of a criminal justice system that is aimed at ensuring that no person is denied his constitutionally guaranteed right to liberty save where it is denied through an exercise of judicial scrutiny replete with inbuilt safeguards aimed at ensuring that an innocent person is not mistakenly imprisoned.

The Government would have us believe that rather than preemptive, the detentions are preventive. The crucial question is on whose account. The Government can hardly be considered to be objective bearing in mind the cause HINDRAF espouses. We have heard much of the Government having taken grave exception to the positions HINDRAF has taken. In the very public fanfare surrounding the official reaction to HINDRAF, we have been made to understand that the Prime Minister is angry at the suggestion of ethnic cleansing. He is outraged at the lies that he feels HINDRAF has allegedly told of his Government ('Governmnent doing its best for Indians', NST, 02.12.2007; 'PM: They want to destroy the country', Malaysiakini, 13.12.2007). He is also, by virtue of being the Internal Security Minister, the authority responsible for the issuance of detention orders.

Anger is not sound basis for objective decision-making. It is further not a proper legal basis for the issuance of a detention order.

In the same vein, political expediency cannot be allowed to become a factor, more so where the detentions are a ‘face saving’ measure. And as much as the Government may deny this to be the case, the truth is that the Government is acting in its own cause. This is as compelling a reason as any to not invoke the subjective processes of the ISA.

The Prime Minister has publicly declared that the authorities have evidence of the alleged terrorist links HINDRAF is said to have ('Close watch on Hindraf', The Star, 08.12.2007). Minister Nazri has also publicly declared the existence of such links ('Link is with Tamil Tigers and India's Rss, says Nazri', The Star, 08.12.2007). If this is the case, then there is more reason for the five or any number of other persons involved to be appropriately charged and prosecuted.

The detention of the HINDRAF 5 may also have the retrogressive effect of, by reason of its ‘chilling’ effect, stifling genuine civil society efforts aimed at promoting discourse on the path this nation must take to ensure sustainable and inclusive development. This would include efforts by various interest groups aimed at addressing the underlying grievances that have caused citizens to peaceably assemble these past five weeks or so. It would be regrettable if these groups, in particular that part of the Indian community that, no matter the rhetoric and the politics of the situation, have felt represented in a way that they have not before were to take from the detentions a signal that the Government does not consider their situation and grievances as being of sufficient importance.

MIS

Apppointment Of President, COA: Await Outcome Of Enquiry

The radical step of nominating Tan Sri Zaki Azmi the President of the Court of Appeal conclusively shows that the Government is blind to the crisis that the Judiciary, and consequently the legal system, is in the throes of. It also shows that the Abdullah Badawi administration views the Judiciary in much the same way the Mahathir administration did; the Judiciary is there to serve the Government’s interests, and not those of the nation (I say nominating as media reports indicate that the Yang Dipertuan Agong is yet to fix the date of appointment (see, for instance, ‘Abdul Hamid is new CJ, Zaki is judiciary’s No 2', Malaysiakini, 05.12.2007).

I do not intend to call into question the appropriateness of the decision to elevate Tan Sri Zaki to the bench. I have had the privilege of dealing with him as a lawyer over a period of time, and more recently as a judge, and have always found him to be courteous, incisive and approachable, key attributes of a good judge. His appointment as President is however, notwithstanding, a basis for concern.

Tan Sri Zaki is amongst the most junior members of the Judiciary, if not the most. He is the most junior Federal Court judge. He has to date only some two months experience as a sitting judge. This is in stark contrast to other justices of the Federal Court and the Superior Courts as a whole.

An appointment as one of the four office bearers of the Judiciary is a matter of pride. It is undoubtedly the aspiration of all judges to end their career at the Federal Court, if not as one of the four office bearers. The question of appointments to office as such has a very human dimension. Like all of us who serve, recognition of dedication and quality is signaled by promotions. This is true also for judges.

Many have called into question the constant bypassing of senior judges for promotion to the Court of Appeal and the Federal Court, for good reason. Over the last decade or so, we have witnessed a startling increase in the number of promotions of junior judges over their senior counterparts. The Bar has repeatedly made calls for the establishment of an independent judicial appointments and promotions commission. At its recent Extraordinary General Meeting, the Bar called on the Judiciary to support the move towards the establishment of such an independent commission.

In his opening address at the Malaysian Law Conference this year, His Royal Highness the Sultan of Perak expressed disquiet at the erosion of public confidence and a nostalgia for a time when the Judiciary was respected throughout the Commonwealth. Much of this erosion stems from the manner in which judges have been appointed and promoted.

Judicial morale is at a low just as public confidence is. Judges are uncertain of their futures, frustrated at the seemingly arbitrary manner in which promotions are handed out. It would not be unreasonable that many wish for a better, more effective and more respected judiciary. This sad state of affairs needs to be addressed. The Bar has maintained, correctly so, that its calls for reforms are not an attack on the attack on the judiciary. They are instead a defence of the Judiciary, its members and the legal system.

In this context, it is manifest that the nomination of Tan Sri Zaki as President can only send the wrong signal to Judges. Coming as it does so soon after his unprecedented direct elevation to the Federal Court, it suggests that there is no one worthy of the position in the Judiciary as things stand. It also strongly suggests that the Government itself has no confidence in the Judiciary.

It also sends the signal that the Government wants to retain control of the Judiciary. Tan Sri Zaki’s history of service to UMNO is not in itself a disqualifying factor for elevation to the bench. However, the special arrangement made for his direct elevation to the Federal Court and the alacrity with which the Government recommended him for the post of President, so soon after the refusal of an application for an extension of the term of Tun Ahmad Fairuz supported by the Government, is cause for concern even if limited to purely the realm of perception.

This is more so for the fact that one of the implications of the Lingam Video is that the Government has been interfering in the affairs of the Judiciary in a manner not countenanced by the Constitution. The fear is that this trend continues.

None of this augurs well for an ailing Judiciary. One wonders how many more shocks it can take.

One of the concerns that civil society groups and the Bar aim to raise before the Royal Commission of Enquiry on the Lingam Video is the need for an independent and transparent appointments and promotions mechanism. It is a widely held view that such a mechanism would go a long way in helping the Judiciary avoid the fallout of incidents such as the Lingam Video affair as well as addressing concerns about unwarranted Government interference.

In light of these concerns, and the crucial need to ensure higher levels of confidence in the Judiciary, it may be appropriate for the Yang Dipertuan Agong to defer the matter of the President, Court of Appeal, until after the Royal Commission delivers its findings. This would have the additional benefit of prompting the Government to act with greater urgency to address the unparalleled judicial crisis that the nation is currently confronted with.

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

A Thought On Rallies: The Bar, BERSIH, HINDRAF And Those To Come

"At the start of the dictatorships in Chile, Argentina and Uruguay, the only public gatherings permitted were shows of military strength and football matches. In Chile, wearing slacks was enough to get you arrested if you were a woman, long hair if you were a man. "All over the Republic a thorough cleansing is under way," declared an editorial in a junta-controlled Argentine newspaper. It called for a mass scrubbing of leftist graffiti: "Soon enough of the surfaces will shine through, released from that nightmare by the action of soap and water."

In Chile, Pinochet was determined to break his people's habit of taking to the streets. The tiniest gatherings were dispersed with water cannons, Pinochet's favorite crowd control weapon. The junta had hundreds of them, small enough to drive onto sidewalks and douse cliques of school-children handing out leaflets; even funeral processions, when the mourning got too rowdy, were brutally repressed. Nicknamed guanacos, after a llama known for its habit of spitting, the ubiquitous cannons cleared away people as if they were human garbage, leaving the streets glistening, empty."

(Naomi Klein, 'The Shock Doctrine')


"In spite of fairly regular multi-party elections and some other features requiring accountability of the regime, the Malaysian state has been authoritarian since the colonial period, though analysts have charcterised the political system as semi-authoritarian, semi democratic, or quasi-democratic. Although these qualified descriptions suggest that some democratic aspects and forms remain, most of the minimal conditions necessary for the practice of democracy in the Schumpeterian sense, particularly fair elections, adequate opportunities for independent political opinion-making and political organisation, and minimal protection for the individual from arbitrary state power, hardly exist in Malaysia. Further, as Crouch points out, even the minimal civil liberties and democratic procedures that exist are allowed as long as the position of the ruling elite is not seriously threatened, let alone undermined; he observes that such rights have been 'quickly modified or abolished when elite interests were threatened'. This has been true of amendments to the Federal Constitution and other legislation, as well as to the rules and regulations governing UMNO, which has increasingly enjoyed and deployed the powers and privileges of long term incumbency since 1955 in a seemingly one-party state."

(Terrence Gomez and Jomo K.S., 'Malaysia's Political Economy: Politics, Patronage And Profits')

Lingam Video: Who else for the Royal Commission?

I note from the report by Malaysiakini ('Royal panel: Ex-judge cum whistleblower 'pleasantly surprised', 28.11.2007) that Syed Ahmad Idid, the former High Court judge in discussing the intended Royal Commission of Enquiry into the judicial crisis had referred to the criteria suggested by HAKAM and asked “Who else is left?”.

We cannot lose sight of several key aspects of the discussion. If the motivation underlying the Government’s intention to establish the Royal Commission is sincere, its terms of reference will be designed to allow the Commission to consider all implications and ramifications of the Video. Further, the moral dictate by which the findings of the Commission will be given validity demand such terms of reference.

The implications and ramifications of the Lingam Video - ranging as they do from apparent interference by the Government into matters of judicial appointments and promotions to partisan decision making by judges in a manner contrary to the “without fear or favour” basis expected of independent judges - require that the comprehensive enquiry the circumstances warrant be conducted in a manner which leaves no room for doubt as to the integrity of the enquiry process and the findings.

Seen from this perspective, it is apparent that anyone who could be seen to have some interest or some axe to grind, would be a liability rather than an asset. It should not be open to anyone, no matter which ‘side’ they are with, to question the integrity of the enquiry process and the findings of the Commission. This is why the criteria suggested are so stringent and so far reaching.

The Commission does not have to be made up of a large number of commissioners. 3 or 5 members would suffice. Proper staffing arrangements could help the commission achieve the efficiency and efficacy expected of it. It is not unrealistic to expect that 3 or 5 persons of caliber fitting the criteria could be found. The Raja Muda of Perak, Raja Nazrin Shah, is one such person and could in light of his stature be invited to chair the Commission.

Should the need arise, assistance could be sought from international legal luminaries. There is precedent for this course of action. Judges from other commonwealth jurisdictions sat on the tribunal empanelled to try the former Lord President, Tun Salleh Abbas (judges from Singapore and Sri Lanka sat on the commission).

To this end, advice or recommendations could be sought from the International Commission of Jurists, a respectable organization whose mandate centers on the due administration of justice. Raja Aziz Addrusse is in fact a serving commissioner of the ICJ. The Judiciary and the Bar have enjoyed constructive relationships with international figures such as Michael Kirby, Justice of the Australian High Court, who have made outstanding contributions to the field within their respective jurisdictions as well as internationally and who would undoubtedly be in a position to ensure that the job was carried out and carried out as it ought to be.

The HAKAM criteria are the ideal. It is wholly unnecessary to jettison the ideal in favour of a perceived need for practicality. The matter at hand is one which allows for nothing less than the ideal.

Malik Imtiaz Sarwar
President, HAKAM