The heart of the matter

Going by what is making the rounds in the media, on and off line, Malaysians have every right to be questioning the sincerity of the Federal Government’s stated commitment to transparent and accountable governance. I think we have every justification to wonder whether the Government even truly understands what corporate governance means.

Malaysians have over the last two decades or been given enough grist for the proverbial mill. Every so often, information would present itself in the public domain for us to doubt that government really knew best, or that it consistently acted in the public interest. Accusations of cronyism and self-interest plagued the Mahathir administration, as they did the administration of Abdullah Badawi. Granted, there were more exposes where the latter was concerned, though this was primarily due to the burgeoning role of social media in the Malaysian and Tun Abdullah being less iron-fisted.

Suffice it to say that over the years, righty or wrongly, Malaysians have become more convinced that the Government tends to act only in its own interests. And where the perception used to be that the Government acted with regard to primarily its political interests, it is now widely believed that the member of Government equally act in their own financial interests.

This is a state of mind that the Government’s continued rhetoric on eradicating corruption does little to address; rhetoric that the Government must surely recognise has minimal, if at all, impact. This is largely due to the fact that Malaysians are given precious little to form a belief that the Government does actually walk the talk.

Consider the recent recommendation by the Malaysian Anti-Corruption Commission (MACC) Advisory Board that Ministers and their families declare their assets to the MACC. One would have thought that this was a step that needed no recommendation, or the recommendation having been made by a specialist Advisory Board tasked with making recommendations of that nature, it would warrant little or no debate from the Government. Yet, a Federal Minister opposed the suggestion on the ground that it would endanger Ministers. From what exactly was not made clear though perhaps, if viewed as a Freudian slip, it conveyed the Minister’s fear of transparency.

It is not very surprising that despite the obvious political fiasco the National Feedlot Corporation (NFC) affair has precipitated, the Government still acts as if there was really nothing wrong with the public funds disbursed to NFC being utilised for the personal purposes of NFC directors and shareholders. This was in spite of some Ministers believing, a viewpoint that I share, that the public funds had been entrusted to NFC for a specific purpose. One would have thought the Government would have directed the Attorney General to take all necessary steps to secure the funds and ensure their return to the Treasury. It goes without saying that the Attorney General has an arsenal of legal provisions at his disposal for that purpose and the resources to commence recovery proceedings worldwide if necessary. The Government has instead incomprehensibly left it to the Attorney General to commence prosecution on charges that go merely to compliance with the Companies Act.

It may be that there is more than the obvious to the NFC affair, perhaps even some mysterious self-evidently exculpating dimension. Whatever the case, it does the Government little credit for it to act as if the saga was just an event in the ordinary course of government. And the truth, as alarming as it is, may be that the Government does really view it that way.

That may explain why the Prime Minister does not appear to feel that it is highly disconcerting for his official offices to have been used for the organisation of his daughter’s engagement. The event, as happy as it is for the families involved, is just that: a family affair. Leaving aside the crucial question of whether the Prime Minister’s Office paid for the event, it was highly inappropriate for the Prime Minister to have utilised government resources for a personal matter. His having done so speaks of a blurring of the lines between the personal and the official in the highest executive office of the nation with all its attendant ramifications and implications.

The fact that the use of the Prime Minister’s Office for personal purposes was not limited to the engagement celebration, going by what has been revealed concerning the Prime Minister’s birthday celebrations, suggests that this sort of thing happens regularly. This may even be the case where the other members of cabinet are concerned.  In these circumstances, Malaysians have every justification to ask whether the Prime Minister and the members of his cabinet address matters of state with the same ambiguity.

There is enough material in the public domain for us to reasonably form the view that they do. Consider the consistent demands by the Opposition and civil society for more accountability and transparency in government spending and the unwillingness of Government to respond meaningfully. The raging controversy over the NFC has as yet not resulted in public disclosure of how it is that NFC came to be granted the soft loan. Other commitments on the part of the Government that have made the news recently are similarly opaque.

These, and other instances, are fueling grave concern over the state of the country’s finances. Unbridled public spending over contracts that have not been made subject to open tenders, some of which involve what could be described as non-arms-length parties, have been shown around the world to be recipes of disaster. But then, we know all that and the question in our hearts is really how far are we from the brink.

Going by what we have learned about the extravagant lifestyles of our leaders we might have reason to believe that all is well. Surely they would not be spending money as if it was going out of fashion, personally and professionally, if there was cause for concern. Or would they. 

The fact is we really do not know, and that is at the heart of the matter. A democratically elected government is one that is accountable to the electorate. Voters did not elect a majority to form a government that would run the nation’s affairs covertly or by stealth. Any such government would simply not be tenable.

MIS

(This article was first published in The Edge, 17.03.2012)

Nothing to hide

Like many others, I believe that the move by the Chief Justice to have judges declare their assets should be lauded. As was emphasised in the speech he delivered recently at the opening of the legal year, the integrity of the judicial process is of paramount importance to the administration of justice. Having judges declare their assets is a key step in achieving that goal. Not only will it allow for some measure of scrutiny, the willingness of judges to disclose their net worth will signal to all Malaysians that they have nothing to hide.

The Chief Justice must be credited for having had the moral courage to acknowledge a need on the part of the Judiciary to directly address concerns that corrupt practices may possibly have infiltrated into the institution. It would have been much easier for the Chief Justice to simply ignore the issue, or deal with it behind closed doors. Many a judge may have said it would be better to handle such matters out of sight for the fact that it would not lead to any untoward impression of the institution.

As effective as this latter approach may have been, it would not have gone very far in addressing public concerns. Though it pains me to say this, I do not think there are many lawyers and litigants who believe that the system of justice is free from corruption.  While this may be nothing more than a perception it is no less damaging; a system in which the public has no confidence is a system that does not work.

I am heartened that the Chief Justice recognises that he must deal with the matter and, to that end, embrace the more challenging route of promoting transparency and accountability amongst his judges. Implicit in his approach is an understanding that the well being of the institution, and the nation, cannot be sacrificed for the sake of the few rotten apples that may be in the barrel.

The Chief Justice says that the Judiciary will work with the Malaysian Anti-Corruption Commission on developing the framework of disclosure. This makes sense considering the function of the MACC and the value of the collaboration must be acknowledged.  It may however be prudent to note that public perceptions of the MACC, in particular its seeming political bias, may undermine the value of the initiative if not handled. It is therefore essential for the Chief Justice to make clear that while the MACC may offer advice on how best to articulate the aims of the Chief Justice in this regard, it will not have the final say.

It would also be useful for the Chief Justice to engage with the Malaysian Bar and Transparency International on the matter. A consultative approach will go a long way in convincing Malaysians that he means business.  Malaysians are after all the beneficiaries of the system of justice and they ought, through interaction with the relevant civil society bodies, be treated as stakeholders. The Bar is well placed to highlight aspects of the process that may shed light on corrupt practices and how best to deal with them. Similarly, the resources and experience that TI can bring to bear will be invaluable in defining the disclosure framework.

The Chief Justice has yet to make clear his vision of the disclosure framework. At the risk of stating the obvious, it is crucial that consideration be given to the degrees of disclosure required as well as the period of disclosure. Where the former is concerned, Judges ought be made to disclose assets in their own names as well as in the names of their spouses and children. They should also be made to declare their interest in companies, not only for their shareholding amounting to assets but for the fact that assets may be parked under asset holding companies, within jurisdiction or elsewhere.  They should be made to disclose their assets in the most comprehensive manner possible. In this regard, the disclosure obligations imposed on members of the Competition Commission under the Competitions Commission Act 2010 is a useful reference point.

Consideration must also be given to the question of whether the declaration of assets ought be made public. I believe it should if the aim is to foster public confidence.  Such a stand is not unprecedented, declarations of assets of the judges of the Indian superior courts are carried on the website of the Supreme Court.

As for the period of disclosure, it would be prudent to require disclosure of assets by Judges as at the time when they were elevated to the bench, or appointed as Judicial Commissioners.  They ought be made to then declare their assets for each year they have served as a Judge and continue to do so until their retirement. It would be counterproductive to only require disclosure of assets prospectively if the aim is to weed out errant judges.

It will also be necessary to consider how the vetting process is to work. I presume that the MACC will be vetting declarations. The question is whether the MACC is to vet disclosures only if allegations are made against a judge, or whether the vetting is done as a matter of course each and every year. I believe that the latter approach is the better one for it promoting the objective of the exercise. This approach will also serve to deter errant conduct.

Once again I congratulate the Chief Justice on the initiative. My best wishes to all for the lunar New Year.

MIS

(First published in The Edge, 22nd January 2012)

Statement: MCLM

It is with regret that I announce my disassociation from the Malaysian Civil Liberties Movement, otherwise known as MCLM.

Though I have at no point in time been a member of MCLM, I had committed to working with the movement to further the reform agenda.

For the sake of clarity, I note here that at all times my agreement to stand as an independent candidate hinged on my being satisfied that there was cause for it. In this I firmly believed, and still do, that the Pakatan Rakyat was pivotal in any campaign for reform, though it was not necessarily the only actor of relevance. In that light, I had resolved to stand only where my doing so would not result in a three-corner fight or where it was strictly necessary to do so.

Much has occurred since the announcement of the initiative. For one, the Pakatan Rakyat appeared to commit to a sustained effort to identify and field quality candidates. For another, Raja Petra Kamaruddin felt it necessary to state his personal views as he did, in an interview with TV3 last year and recently in interviews published in the New Straits Times and the Utusan Malaysia.

I will not delve into the matters spoken of save to say that they cast a less than positive light on the MCLM in so far as its commitment to principle is concerned. Furthermore, I do not share his views.

As I understand things those views were entirely personal to him and are not the views of the MCLM. Raja Petra had however allowed the impression that he spoke on behalf of MCLM and in his capacity as the chairman of the movement. That is regrettable as it is an impression that has undermined the credibility of the MCLM and its efforts. It has also undermined the tremendous efforts of a number of highly committed and selfless individuals in their untiring efforts to develop various civil society initiatives under the banner of MCLM.

In having done what he did, as well intentioned as he may have been, Raja Petra has seriously undermined the cause. It is my belief that no one person is larger than the cause.

It is for this reason that I must disassociate from the movement and withdraw from the independent candidate initiative. I have discussed the matter with Mr Sreekant Pillai who has asked me to state that he shares my views and is similarly dissociating.

I wish to state that my decisions to remain independent of any political parties and to stand as a candidate were mine and mine alone. It has been some years since Raja Petra and I have spoken and he has not in any way influenced any of my decisions.

Malik Imtiaz Sarwar

Preemptive intimidation

So, the police have started their campaign of 'preemptive arrests'. There were activists arrested in various towns/cities yesterday, ostensibly for distributing 'inflammatory material'. As many have already commented, the suggestion that material recommending electoral reform is inflammatory is ludicrous. This is more so in light of YB Nazri's recent observations about our sedition laws being outdated.

And if it is incitement that the police are worried about, then there are more stark instances that are deserving of attention.

The police campaign appears to be aimed more at intimidation, apparently on the misconceived basis that this is a legitimate means to preserving public order. It is not, simply because every one has the right to dissent and express such dissent. This is something that the police appear to recognise; demonstrations and marches have been permitted in recent history, more notably when they involve causes that run consistent with the politics of the Government.

When the police want to, they are fully capable of allowing mass gatherings and controlling public order. Just google "Kuala Lumpur road closures". Even as I write this there are hordes of people running past my office. They're not running from anyone or anything, they're involved in a marathon of sorts. Roads have been closed for this event, as HAKAM members trying to get to my office for our AGM have found out to their consternation.

The preemptive police campaign is inflaming a situation that politics has made tense. What started out as a peaceful expression of unhappiness over the electoral process has now become, to paraphrase the Deputy Prime Minister, a threat to national security. He is concerned that the BERSIH Rally will send the wrong signals to the international community, in particular investors. Well, we might ask the Deputy Prime Minister, what sort of signal does mass arrests send?

MIS

Datuk T and the Administration of Justice

The charge was for screening a pornographic video in public. The three 'Datuk T' pleaded guilty. And yet, one of the three declares that his mission had been accomplished. What mission was that? The screening of pornographic videos? Apparently not, it was to have it made public that:

• the video had been examined by an expert;
  

• the expert was 99.99% certain that the man in the video was Anwar Ibrahim; and

• Anwar Ibrahim is as such not the man he claims to be.

The question is if that was the mission, why not declare it publicly, even prior to their being charged in court? After all, from media reports Defence counsel appears to have been as much in the know as the prosecution. It also appears that prior to being charged, the three knew they were merely going to be fined and were prepared for that eventuality.

This has grave implications, especially when one considers the events that took place in court. In my view, the more important events were:

• the DPP read out a Statement of Case which delved into matters that were not relevant to the charge. The charge was the screening of a pornographic video. Was it necessary for the prosecution to establish that the man in the video was Anwar Ibrahim, or any other person for that matter? It clearly was not. And yet the DPP thought it appropriate to make assertions pertaining to matters that were not only extrinsic to the charge, they were based on purported evidence that had yet to be tested or determined to be sound. It is not clear whether the alleged expert report was produced to the magistrate. It appears not;

• the Magistrate permitted the DPP to do what he did without appearing to have thought it appropriate to direct the DPP to limit himself to the case. In doing so, the Magistrate had, albeit perhaps unwittingly, permitted a judicial process to be employed in a means it was not meant to. If there were reasons behind the extraordinary measures taken in court, then the magistrate may have, albeit perhaps unwittingly, permitted the administration of justice to be exploited to that end.

Much disappointment has been expressed at the way in which matters unfolded in court. This has been misconstrued by some as unhappiness at the fact of Anwar Ibrahim's alleged foibles having been exposed. Criticism of the events have been represented by these quarters as attempts to subvert the truth about Anwar Ibrahim.

But that is the point. The proceedings in court were not about Anwar Ibrahim. They were about Datuk T having committed criminal offences. The events of yesterday must be looked into by the Judiciary and the Attorney General's Chambers.

MIS

A matter of dignity

A matter of dignity

Everyone has his or her idea of what a perfect world is. Some might say that society should be less regulated and more space given for personal freedoms. Others might argue in favour of more regulation and control. Some might expound a more racialist perspective while others may be happy with just a modicum of fairness.

Whatever the case, the realities of a societal existence compel us to find middle ground, a state of being where one has as much freedom to be human and to do all things vital to dignified existence as such while respecting the next person’s right to do the same. This calls for compromise on the part of everyone who chooses to co-exist in a given society. This compromise necessitates relinquishing the right to ‘self-help’ to those tasked with administering that society.

In Malaysia, that compact is entrenched as an essential feature of Malaysian existence by Constitutional guarantees of fundamental liberties.

Though the administering of a society would necessarily involve some measure of regulation, the power of the state to regulate is not an absolute one. Its responsibility to do so is to be balanced against its responsibility to protect those freedoms that define that society. Any intervention by the state, and the character of such intervention, is to be determined by reference to both these considerations.

There is however an unfortunate tendency on the part of our government to focus only on the need to protect public order. This often obscures the equally important responsibility of the government to protect the dignity of its citizens. The question that is more often than not overlooked is what is it that gives us dignity.

The right to express, either as individuals or as a collective, is a crucial element in what it is that defines us as who we are. In most cases, the power to express ourselves is really all that those of us without access to the corridors of power have. Individuals may be stripped of their belongings and status, they may be constrained in a number of ways, but they do not stop being human as long as they have the ability to express who it is that they are to the world around them. The HINDRAF rally of 2007 illustrates that point clearly.

For some, the need to express may be satisfied by their choice of the colour or design of their car, or outfit. For others, the need may be greater. They may wish to say that they are not happy with the state of government or that they are frustrated at the lack of response from agencies charged with administering elections. As much as some may disagree with their view, it is not for anyone to say that they have no right to think or feel what it is they are feeling.

In the case of those seeking reform, their right to speak up is reinforced by the fact that Malaysia is a democracy. We elect our governments. For them to have the continued confidence of the rakyat, the integrity of the process by which they have been elected must be seen as being unimpeachable.

That does not appear to be case though. Going by what BERSIH 2.0 is saying, a significant number of Malaysians believe that the process cannot be seen as being unimpeachable. This is not just about whether there is electoral corruption or whether there has been ballot stuffing, it goes deeper into the question of whether the system of elections as it is allows us to achieve the aim underlying general elections. Issues have been raised about re-delineation exercises, campaign periods, equal access to mainstream media by all political parties, amongst others. These are undoubtedly significant features of the process that all Malaysians ought be concerned with.

BERSIH says that it has attempted to raise these matters with the relevant agencies but thus far its efforts have not got it anywhere and no resolution has been achieved. For this reason, BERSIH says it needs to express itself as a last resort through a rally. Judging by the studied silence or avoidance of those charged with responsibility over elections, it appears to be all that BERSIH, and Malaysians who support its cause, can do.

In any modern nation state describing itself as one established on the Rule of Law, there would be no difficulty. BERSIH organizers would be told that they would have to march along a particular route, with a sufficient number of wardens at a particular time. The police would go to great lengths to ensure that those marching in the rally would be safe and would be able to go about their business uninterrupted.

And if there were a group of individuals opposed to the BERSIH rally, and wished to march in protest, then the police would direct them to march along a different route.

Our government however opposes it and says that the need to preserve public order is more a priority than allowing Malaysians to express themselves on the subject. With impunity PERKASA puts a spin on the matter and asserts that its supporters are happy with the way things are and will endeavour to thwart the BERSIH rally with a counter-rally.

The police are weighing in as well, giving notice of preemptive arrests in the face of no permit having been issued for the proposed rally. The posturing makes it clear that no permit would be issued in any event.

In conducting themselves as they do, the government and the police have sent a strong signal to Malaysians that they do not consider the right to express themselves on the subject as being of any importance. In doing so, they have effectively told Malaysians who support the cause that their dignity is of no relevance. That they should just stomach the system as it is.

Is there really any cause for wonder at the fact that Malaysians increasingly seem more inclined to take to the streets?

(An edited version of this article appears in my 'Rule of Law' column in The Edge this week)

MIS

Spoils Of War

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

Spoils Of War

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

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

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

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

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

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

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

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

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

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

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

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

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

MIS