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 This is more so in light of YB Nazri's recent observations about our sedition laws being outdated.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

WARNING

It has come to my attention that someone has been misrepresenting himself to be me in connection with the solicitation of funds. He e-mails in my name and purports to be writing as a lawyer with my name and practicing at a firm with the name “Malik Imtiaz Sarwar”. The address specified is not the address of my law firm.

I have taken steps to address this and police reports will be lodged shortly.

Should anyone receive any e-mails or telephone calls soliciting funds in the name of my firm or in my name, do not entertain any such requests. I would be grateful for any information pertaining to the same. Information concerning this can be directed to helenyong@malikimtiaz.com.my.

My thanks to those of you who took the trouble to alert me to the matter.


Malik Imtiaz Sarwar

Teoh Beng Hock: Perspectives On Inquests

I apologise for the protracted silence. Commitments these past few months have left me no time to write meaningfully. For those who had written messages of concern and encouragement, thank you for having taken the time to do so.

As has been made obvious by the tremendous publicity the inquest into the death of Teoh Beng has received, I represent the Selangor State Government in the proceedings. Gobind Singh represents Teoh’s family.

There are a few aspects that I think need to be put into perspective. I will not delve into the merits of the inquest as the matter is still under consideration. There are however certain objective areas that need some clarification.

First and foremost, it must be understood that the inquest is directed towards establishing a cause of death. The cause of death is more broadly categorized into suicide, accident (misadventure) or homicide (murder or culpable homicide). There are of course other verdicts that could be reached. These include a conclusion that further investigation is required or an open verdict. An open verdict is a finding that although there are suspicious circumstances surrounding the death in question, there is insufficient evidence to determine much more than that. Coroners lean to an open verdict where there is no proof of intent to commit suicide (suicide cannot be presumed).

The aim of the inquest is to determine the truth. In inquests, this is more usually a process of deductive reasoning and elimination of possibilities. As such, the evidence must be considered from that perspective. For example, if accidental death could be eliminated then suicide or homicide are the available options. If suicide could be eliminated, then homicide would be the only option (or an open verdict if the evidence did not allow for that finding).

The outcome of this inquest would obviously have political repercussions considering the way in which politics overlaps governance and the perception that the MACC is responsive to the government. Considering the possible outcomes of the inquest, it stands to reason that looking at the inquest as a political matter, death by suicide or accident or an open verdict (in that order of priority) would suit the MACC and, indirectly, the Government, the best. This is however not intended to suggest that neither institution is concerned with the truth; perceptions and perception management are crucial to building and maintaining public confidence.

The second area that needs clarification is the role that the forensic pathologist will play in the event someone is charged with homicide. The two pathologists that gave evidence in the inquest jointly signed the post-mortem report. In the event criminal proceedings are instituted, the post-mortem report becomes a crucial part of the prosecution case. The credibility of the pathologists, or at least one of them, is therefore equally crucial. A good defence counsel would be able to exploit the evidence of the pathologists at the inquest, as prior statements on oath, to his client’s advantage. As such, care has to be taken in the way findings are questioned.

MIS

The Texture Of Justice

It was to be expected. As news of the decision of the High Court in the matter of Nizar v Zambry filtered out, many were quick to give thanks and express encouragement for what they perceived as a courageous judgment. Some even expressed the hope that the judiciary was recovering its independence. The judgment did, after all, run counter to the entrenched positions of the Prime Minister, who was the Perak UMNO liaison chief at the time power was seized in the state, the Barisan Nasional leadership and the Federal Government they have constituted, and His Royal Highness the Sultan of Perak.

As has been the case when other seemingly “courageous” or “independent” judgments were handed down by the courts had led to such expressions of encouragement, there were those who made the point that the judiciary was praised only when it gave decisions against UMNO or the Barisan, and the governments they constitute. They ask why it is the courts are “kangaroo courts” when they decide in favour of the Barisan but not when they hand down judgments against it. In so asking, they suggest that criticism against the Judiciary and the Federal Government in this regard is unfair and self-serving as the judicial process is capable of producing judgments that run either way. To them, the good must be taken with the bad.

This line of argument deserves further consideration. In order to more fully address it, context must be appreciated and in this, there are two aspects that must be emphasized.

Firstly, our public and private lives are normalized by rules of conduct put in place by law created for that purpose. Legislature’s aim in this regard is to facilitate a harmonious society. The laws of contract, for example, codify principles that we innately understand: there must be no misrepresentation in the formation of a contract, contracts must be honoured and so on. Similarly, criminal laws entrench the principle that each of us should be allowed to live our lives ‘freely’ without interference from others. These and other laws assist in regulating that principle through, amongst other things, the protection of fundamental liberties, physical integrity, security of possessions, and ultimately the integrity of the system by which we live.

Laws have no impact unless they are enforced. It is at this juncture that the objective theory of Legislature transforms into the practical reality of action and takes the more subjective human dimension. The decision of any enforcer of the law, be it an agency or an individual, will ultimately be shaped by the reason of one or several individuals. For instance, whether the MACC chooses to take action against Khir Toyo is a matter that is determined by the top man at the MACC.

It is a given that human error will occur. It is for this reason that the courts are vested with the power to scrutinize Executive action. They stand between the citizen and arbitrary or capricious Executive action. In matters of private law, such as in the area of contract law or commercial law, judges takes on the role of ensuring normative standards are applied equally across the board in the absence of regulators.

Seen in this way, the courts, and the judges who run them, represent the ideal. Their conduct must be beyond reproach. This leads me into my second point.

It is indisputable that the Judiciary was attacked in 1988 and its independence severely undermined through a constitutional amendment that yoked it to Parliament. A questionable system of appointments and promotions that was made the subject of a damning Royal Commission of Enquiry report has further damaged the institution, as have numerous controversies and scandals, some of which have involved highly questionable decisions that have favoured the interests of the Barisan directly or indirectly.

The public viewpoint as to the state of the Judiciary cannot be dismissed for being uninformed or lacking in sophistication. In cases involving more current dimensions of our lives, a skewed decision of the courts often proclaims itself as such; it offends our moral sense. A person gets cheated and goes to court but the court decides in favour of the cheater, twisting the law to arrive at that outcome. A mother gets unjustly deprived of the custody of her children. The starkness of the wrongdoing on the part of the court is basis enough for serious concern about whether the courts are going to do the right thing or not, or whether it is even capable of doing so.

These concerns are fuelled by a failure on the part of the Federal Government to implement recommended reform measures. It appears that a lack of political will and a desire for continued Executive control over the Judiciary stands in the way. The much trumpeted Judicial Appointments Commission has not diluted in any meaningful manner the control of the Prime Minister over appointments.

The state of play is such that the average Malaysian has come to expect that cases of public interest involving the Barisan or the governments that it forms will be decided in its favour. This is the default position, a perception that the Barisan has fostered by its inaction or seeming unwillingness to act meaningfully in the face of consistent complaints about the state of the judiciary over the last two decades or so. This impression has also been nurtured by the way in which the Barisan has allowed constitutional bodies and federal agencies to conduct themselves in an apparently partisan manner, a point brought home in the course of the Perak affair.

For all of this can Malaysians be blamed when they still take cases to court despite their criticism? No, for they have no choice and they have to hope beyond hope. There have been judges, though far and few between, who have displayed the moral courage so crucial to a just decision in hard cases. They however are the exception to the rule and their principled stand cannot be translated into the standard of the entire judiciary. I appreciate that this may seem harsh for there may be other judges who do not lend themselves to any perversion of the law. Their silence or inaction will however be regrettably construed against them by Malaysians who have grown weary and are no longer tolerant of morally ambiguous positioning on the part of our institutions. For them, justice is neither a game nor a gamble.

Can Malaysians be faulted for celebrating a decision that they never thought possible in their wildest dreams, or for associating such decisions with an independent judge? I think not. It is an indisputable truth that decisions in politically sensitive cases, erroneous or otherwise, rarely favour the other side where the Barisan is involved. Their rejoicing does not make the reality any different, a point sadly underscored by quiet speculation on the part of some that the decision of the High Court yesterday may have been orchestrated as part of a political strategy.

I will concede that certain quarters have tended to ridicule judgments of the courts solely for these judgments having ruled one way rather than the other. For them, the expected outcome defines everything. If it is not disappointing then it is presumed that the process of the law was not compromised. However, if the outcome is disappointing then it is a given that the process was subverted. This cannot be the right way to look at things as, whatever the case, the process of the law is crucial.

As for the decision itself, I will refrain from too much analysis as the Barisan has appealed the matter. I will however say that given the choices the judge had, that is to decide whether a vote of confidence was essential or whether extraneous circumstances pointing to a lack of confidence were sufficient for His Highness to appoint a new Prime Minister, the judge made the more prudent and practical decision all things considered.

The state constitution does not vest His Highness the Sultan with the power to dismiss a Menteri Besar and His Highness was only required to form a view as to whether the incumbent Menteri Besar had lost the confidence of the majority. The conclusion of the judge that a vote of confidence is required is one that allows for the kind of certainty that Tun Mahathir advocates and which, given the lessons learnt over the last three months, reduces the risk of destabilizing the state. It also guards against the institution of the Sultanate being dragged into a political fracas, a situation exemplified by the appalling events in the State Assembly last Thursday.

(Malaysian Insider, 12th May 2009)

MIS