On Democracy

"Ever since ancient Greek times there have been two views as to the way of producing true beliefs, and two corresponding views as to the best form of government. Although these two connected controversies have existed over two thousand years, they are as vigorous in the present day as at any former period. The two ways of producing what are deemed to be true beliefs may be distinguished as the way of authority, and the way of discussion and investigation. Similarly the two forms of government are that of authority and that of discussion followed by a majority decision. Where the way of authority is adopted as the method of producing true beliefs, certain opinions are inculcated as having been proclaimed by the wise and good: those who controvert those opinions are held to be foolish or wicked or both, and are subjected to penalties which have varied in kind and in severity according to the age and the country. Sometime the supporters of orthodoxy rely wholly on tradition, but in most cases there is a sacred book with which it is impious to disagree. In Christian countries men were burnt for questioning the official interpretation of the Bible; in Mohammedan countries it was very rash to thrown doubt on any part of the Koran; in modern Russia, you risk liquidation if you disagree with Marx or Engels as expounded by the Kremlin. In all such cases the government upholds a collection of dogmas, and spreads belief in them, not by argument or appeal to evidence, but by shielding the young from contact with adverse opinions, by censoring literature, and by punishing, usually by death, such heretics as nevertheless have the temerity to proclaim their subversive views. As a rule, under such a system, the government, having the habit of authority, becomes gradually more and more tyrannical until, in the end, it is brought to destruction in a fierce revolution."

Bertrand Russel, 'A Scientist's Plea For Democracy' (1947)

Free RPK: 2nd Habeas (Update)

The second habeas corpus application is scheduled to be heard at 9.00 am on 22nd October 2008 at the Shah Alam High Court before Justice Syed Ahmad Helmy bin Syed Ahmad.

The Government Man

The Government Man

Allow me to hypothesize with you this week.

Let us, for arguments sake, say that those detained under the ISA are treated in a manner that leaves much to be desired. Assume that they are subjected to tactics of intimidation and coercion, either through interrogation or carrot-and-stick strategies that leave them mentally traumatized. At the whim of those who are in charge of them, they could be kept in solitary confinement for prolonged periods, denied visitation rights, be given food that could not in any way (and I do not mean any disrespect to the egg or those who eat it) be described as wholesome or nutritious or given amounts so meager that health and strength are affected. As a consequence, those detained are suffering.

Would that be torture? For those of you who say ‘no’, would it instead amount to cruel or inhuman or degrading treatment? For those of you who still say ‘no’, what if I were to add that those detained have not been found guilty of any crime and, in fact, those who have been and are serving prison terms, are treated better? Would it make a difference?

A theorist would have answered that the treatment described would by any standard have amounted to torture or cruel, inhuman and degrading treatment. This would have been reinforced by his (or her) belief that the detention was unlawful for having been occasioned without due process.

I share that view; in the presence of such factors it could be reasonably concluded that detainees are being subjected to some form of cruel, inhuman or degrading treatment, if not outright torture. My view, like that of the theorist, would be supported by a number of international human rights instruments including the Convention Against Torture and the International Covenant on Civil and Political Rights. These instruments and commentary collectively say that subjecting a detainee to intense mental stress, through sleep deprivation or prolonged solitary confinement or food that was inedible or lacking in nutritional value, is arguably torture or cruel, inhuman or degrading treatment.

On the other hand, a Malaysian diplomat or administrator, the hypothetical Government Man, would in all probability answer that there is no question of the treatment being torture or anything else offensive. How could it be, he would ask, when there is no law in this country that says these things amount to torture? After all, he might add with a conspiratorial wink, the Federal Constitution does not say that these things could not be done, just as it does not mention democracy.

Trying to argue the point further, one might point to the fact that Malaysia is a member of the United Nations Human Rights Council. In this capacity, Malaysia sits at the core of the international human rights system. Surely, by virtue of its appointment as such, Malaysia is morally bound to live up to the expectations of the international community?

The government representative might give this some thought, or pretend to, and then, with a sigh of regret, say that Malaysia has not ratified any of the international treaties that proscribe torture or cruel, inhuman or degrading treatment. And, he might laughingly add that if one wanted to consider international expectations, why not take into account the kind of things that the United States has done in Guantanamo Bay and Abu Ghraib?

Saving the best for last, one could then point to the Universal Declaration of Human Rights, which also prohibits this kind of treatment. Malaysia has adopted and re-adopted the UDHR in one form or the other so many times over the years that it must have a bearing.

Shrugging, he would say somewhat condescendingly that the declaration is just that, a declaration. It has no binding effect. For that, one needs to ratify a treaty and, as has been explained, Malaysia has not ratified any such treaty. That the role of the UDHR has evolved over time and that in having become a cornerstone of the human rights system, it has gone far beyond being merely a statement of aspirations would not appear to strike the Government Man as a factor worth troubling over.

Much has been said about Guantanamo Bay and Abu Gharib. Questions have been asked as to how the United States, a party to the CCPR and the Torture Convention, could have allowed for this. Some with influence have argued that the treaties only apply to the “territory” of the States. Such sophistry is a hallmark of the political underpinnings of the human rights system, a tried and tested way for states to avoid playing by the universal rules.

Malaysia is no exception. When inconvenient, it has rejected the United Nations processes, in particular its human rights system. Over the years, we have heard of how we have distinct values of our own because we are Asian or that as a Muslim country, the governing paradigm is the syariah, in response to queries as to why international norms are not being met. These responses have bordered on the ridiculous; these alternative value systems do not lend themselves to cruelty and injustice any more than any other system does.

The refusal by the Government of Malaysia to ratify any of the major human rights treaties, in particular the Torture Convention and the CCPR, cannot be justified. The only inference that can be drawn is that the Government of Malaysia does not want to be constrained by these instruments.

We do not need the Government Man to tell us why.

(Malik Imtiaz Sarwar is counsel to Raja Petra Kamarudin who was detained under the Internal Security Act on 12th September 2008. He is the President of the National Human Rights Society and blogs as ‘Disquiet’ at www.malikimtiaz.blogspot.com)

(Malay Mail; 7th October 2008)

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Diversity

This is a photograph of the Sultan Ismail Petra Silver Jubilee Mosque in Rantau Panjang, Kelantan. It is still being completed but you can see why it is being referred to as the 'Pagoda Mosque'. Maverick has a blog post on the mosque (I lifted the photo from it). The NST has a story on it too, the mosque seems to have found favour with tourists.

A picture is worth a thousand words, they say. This one says that Islam does not belong to any one community, it has room for all.

My fervent hope is that our acceptance of diversity goes beyond architecture and tourist attractions.

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Let Us Not Forget

Let Us Not Forget

This Hari Raya, sixty four individuals will be prevented from spending time with families and loved ones the way they rest us of will. What stops them from doing this is not a term of imprisonment, they have not been charged or convicted or any crime, nor incapacity, they are as capable as you and I. Detained under the Internal Security Act in Kemunting, the barrier that lies between them and the rest of us is the judgment of one man, the Home Affairs Minister.

As a young boy, I used to read ‘2000AD’. Through this I came to know of Judge Dredd and how he and his fellow police officers were ‘Judge, Jury and Executioner’. And even though the guns, motorbikes, violence and women in leather were really my focus, an understanding of why the rules had to be suspended in that comic-strip world did filter through. The situation was extreme; these enforcers were the last bastions against a world of total chaos. They were the law because the situation demanded it.

The justifications the Government offers for its continued use of the ISA are strikingly similar. We have been told, in one form or the other, that those detained are threats to national security. We are urged to understand that there are compelling reasons that make it a matter of critical importance that they be detained without trial. Were they left free to work their schemes through to completion, it is said, the nation would be in grave danger.

As much as the current Home Affairs Minister may think he is Judge Dredd (tread with caution, the image of the Minister in leather, zips and boots is not for the faint hearted), he should perhaps appreciate more fully that Malaysia is not facing the kind of apocalyptic prospect that the ISA was designed for. The extreme gravity and urgency warranting summary detentions is conspicuously absent. We are a nation at peace; armed insurrections are a thing of a distant past. We would not be plunged into chaos, democracy destroyed, if we stopped to smell the roses, or try those detained in court for that matter.

Circumstances are such that we are left with little choice but to doubt the legitimacy of detentions under the ISA.

How are we to believe that those detained were in fact the serious threats they were supposed to have been when so many of them had gone on to serve the Government in one way or the other? Dato’ Seri Anwar Ibrahim was detained in 1974 and kept in detention for some twenty months. He went on to serve the nation as Education Minister, Finance Minister and, ultimately Deputy Prime Minister. Datuk Dr Maximus Ongkili, our current Minister of Science, Technology and Innovation was also detained for some two months in 1991. They are just two of numerous instances.

How are we not to doubt the bona fides of detentions when the ISA was amended in 1989 to put the Minister’s decision to detain beyond the reach of the law. How else is one to characterize restricting the scope of review to merely matters of procedure? Scrutinizing detention orders to see whether the Minister dotted his i’s and crossed his t’s while he thumbs his nose at you from behind his legislative barricade is not a process that inspires confidence.

How are we to trust in the sincerity of explanations when though our current Prime Minister declared in 1987 that, “Laws such as the Internal Security Act have no place in modern Malaysia. It is a draconian and barbaric law.” he did an about face in 2003, saying instead, "We have never misused the Internal Security Act. All those detained under the Internal Security Act are proven threats to society”. The irreconcilable positions reveal just how far politics rules the day. That a significant number of those detained through the years have stood in the way of the Government’s political interests only goes to reinforce this impression.

Sadly though, what I have said here is not novel. Many before me have expressed the same sentiment, their pleas having fallen on ears deafened by other priorities it would seem. This has been aided in part by the way in which the issue has consistently been permitted to slip back to the periphery after the initial flurry of excitement and expressions of disbelief that mark the then most recent round of detentions. The issue lies there, in its dark corner, forgotten like those who have been detained; out of sight, out mind.

In allowing for this we have given comfort to the Government, indicating to it that as much as we may have disagreed, it is not a matter of great importance to us. We are as much to blame as those who put the detainees away.

Eid is a time for reflection and introspection; it is a time for resolve. This year as we celebrate and give thanks, perhaps we could pause to remind ourselves how fortunate we are for not having been forgotten, for being able to reach out to touch those who matter to us. Perhaps we could take a moment to see that we are really all that those who slowly fade away under the ISA have.

Let us remember them and the injustice that they have been made to suffer, let us not let others forget.

Eid Mubarak.

(Malik Imtiaz Sarwar is counsel to Raja Petra Kamarudin who was detained under the ISA on 12.09.2008. He is also the President of the National Human Rights Society and blogs as ‘Disquiet’ at www.malikimtiaz.blogspot.com)

(Malay Mail; 30th September 2008)

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Free RPK: 2nd Habeas

The application for habeas corpus directed at the Minister of Home Affairs was filed this morning. This challenges the validity of the order issued by the Minister on the evening of 22nd September 2008. As indicated earlier, the scope of review has been limited by the ISA which, by way of a provision which lawyers refer to as an 'ouster clause', excludes the jurisdiction of the court to scrutinize the order except on matters of procedure. The team however feels that we nonetheless have a strong case to argue.

No date has been fixed for the hearing as yet. We expect to know only after Hari Raya.

The first habeas corpus application is still pending. The judge has to make a decision whether to strike it out for being academic. As we see it, it is not as the detention order issued by the Minister was based on the recommendations of the police. The order issued by the Minister flowing from the earlier detention by the police, we take the view that the validity of the earlier detention is of relevance to the question of whether RPK is currently being legitimately detained. This is to be argued further on 28th October 2008.

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How To Be Happy

How to be happy

The idea of enacting a law that deals specifically with race relations in this country is a good one. It is evident that politics, tunnel vision and a lack of imagination have resulted in our society being a great deal more fractured than it should have been, all things considered.

Who would have thought in 1957 that fifty plus years down the line, there would still be a demand for supremacist rhetoric and the fruits of discrimination. But here we are; confused and frustrated, trapped in a labyrinth of our own making. So much so that we have lost sight of plain and obvious truths that could lead us into an age of miracles if rediscovered.

A long while ago, I was rummaging amongst a friend’s book collection and came across a little book by the current Dalai Lama entitled, I think, “How To Be Happy”. Wanting to be happy, I turned to the first line on the first page. If I remember correctly, it said something to this effect: in order to be happy, one had to be happy.

You can imagine how I was somewhat put out by this. If it were that simple, I mused somewhat cynically, we would all be a lot happier. There was surely more to it than that for how else was one to deal with the mysterious complexities of life, I grumbled. I put the book back where I had found it and moved on to a glossy magazine with great photographs.

In hindsight, I realized that I should have paid more attention to that drop in the ocean of wisdom.

Quite a few years later I suddenly realized that over time, life had compelled me to simplify how I dealt with it. It was either that or become victim to the stresses and turmoil that I seemed to have had a knack for subjecting myself to. More and more, I had learnt how to accept the obvious and to say ‘no’ when I needed to, distancing myself from distress, even as I found out how to accept what I did not understand with a more open heart. I saw then that though I had some way to go on my journey, I was relatively happy and that I had got there by, well, trying to be happy.

I tried to find that book again but it had moved on to illuminate someone else's life.

The most obvious truth about being a Malaysian is that all of us, regardless of our background and ethnicity, call this country home and share it with everyone else. We got together at independence because we all believed that we had a place here and that we could live together harmoniously and respectfully for all our benefit. That made us all fulfilled and each of us contributed to its, and each others’, growth.

Somewhere along the way however, we began to take that truth for granted and after a while it was left by the wayside, forgotten. In its place was a void that was soon filled by resentment with a deep, burning need for recognition and belonging that we sated with anything that offered immediate gratification. Race, religion, anything that gave us an identity, was soon being fed to that driving hunger. As with all gangs, those with stronger numbers and greater resource soon ruled the day and discrimination became a way of life.

It still is, and for being so interleaved with so many aspects of our life, is the single, biggest obstacle to our living together harmoniously. It is also the greatest cause of distress and for being that, is something that we must collectively distance ourselves from as we learn how to appreciate and embrace the self-evident truths of being Malaysian.

Discrimination has however become so entrenched that the way forward needs the careful guidance that only a structured policy can offer. A race-relations law, providing for the necessary structures such as a race-relations commission, is arguably the only effective way for such a policy to be introduced and implemented.

Worryingly though, those who have proposed such a law seem more focused on creating more strictures in an already hidebound existence rather than on creating a shared platform for sustainable and inclusive development. This is not the correct approach. We do not need more regulations on what we can or cannot say, we have too many already. What we need is a way to ensure that no Malaysian is sacrificed in whatever way to satisfy the need of another.

For that, a sustained effort must be made to fully eliminate any and all forms of discrimination in public life in this country. Where the race-relations law is concerned, the focus must be on racial discrimination. The law should aim at creating an environment in which the equality of all citizens can be promoted and fostered in the way that the Federal Constitution guarantees. The constitutional scheme aimed at protecting disadvantaged Malays and natives of Sabah and Sarawak through objectively applied affirmative action is not inconsistent with such a goal.

Can we be happy? I think so. It requires us to open our hearts and accept some truths. It needs a little creativity and a lot of trust.

I would like to think we are up to that challenge.

(Malay Mail; 23rd September 2008)

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