Rallying behind reform

The recent statement by the Chief Justice that lawyers should stop corrupting judges is welcome for the fact of it implicitly recognizing that corruption within the judiciary is a problem that needs to be addressed. That the Chief Justice underscored his caution by once again reiterating the importance of judicial independence shows how clearly he views corruption as undermining the integrity of both the institution and the process it administers. It is heartening that this a theme that the Chief Justice has consitently returned to in the course of his tenure.

It must be said however that as welcome as the statement is, the Chief Justice should also give Malaysians an idea of what further steps are being taken to deal with, and combat, this evil. He should not allow himself to be seen as doing nothing more than merely say the right thing. I, for one, do not think this to be the case. As I have written before, in belling the proverbial cat, this Chief Justice has done something that his predecessors had not. He has also, to an extent, followed through. His decision to empanel five, as opposed to three, judges in all Federal Court hearings, implemented last March, has gone some way to inspire more confidence in that court. 

Having said that, the Chief Justice should appreciate that for his reform efforts to gain traction, there has to be a public discussion about the same.  As far as i know, his recommendation that judges declare their assets has yet to be affected. Though this is undoubtedly an issue that requires mature consideration, it has been some time and the issue has to an extent faded. I believe that a further explanation as to the state of play is warranted.

Similarly, other aspects of the mater, for instance the forms of control imposed or being proposed to reduce the prevalence of corruption, should be highlighted. For instance, the Chief Justice can let us know how it is that the staff of the various registries is being kept in line. It is widely accepted that the staff of the registries are influential for their being privy to information concerning judges and hearings, in particular which judges are slated to hear specific cases. Without intending any accusation, it is evident that this is information that could be utilized to further improper aims, and may have well been.

I have said before too that it would be useful for the Chief Justice to make clear how it is judges are selected for hearings. The impression that judges are selected for particular cases based on their views of the case, especially in the appellate courts or in controversial cases, is one that can only be dispelled by an explanation of how they are in fact selected. 

There is another dimension to the issue. Malaysians should also be made aware of what systemic impediments there are to the due administration of justice. For instance, consider the salaries of judges. We should be made to understand whether our judges are being paid enough or, put another way, whether their salaries are sufficiently high so as to attract the kind of candidates the job requires. This is not to say that money should ever be the key factor in embracing public service.  However, it must be recognised that the kind of high calibre practitioners that judicial office calls for are individuals who have over the years arranged their financial affairs in a manner suited to their income levels as private practitoners. As such, they may not be in a position to accommodate the reduction of income currently involved. This was recognised by the Government of Singapore a while ago as a consequence of which it provided for suitable remuneration, which while it did not match what the candidates were earning in private practice nonetheless allowed them to adapt without undue difficulty.

It goes without saying that if judges were remunerated in a manner befitting of their office, there would be less temptation to stray.

The question of whether the Judiciary is given the resourses it needs to ensure that it can function the way it should is another instance of a potential failing of the system.  Consider the kinds of facilities judges of the Singaporean Judiciary have at their disposal, from well qualified and highly competent research officers, court staff and registrars, to reasearch facilities and even dining facilities. The contrast with the Malaysian Judiciary is stark. It is evident that the lack of facilities is going to result in compromises of quality of adjudication and judgments.

I refer to these two instances, there are others, to make the point that it is ultimately in the interest of the Judiciary for the Chief Justice to create public awareness of not only his vision but also his efforts at reform and the impediments he faces as it is only through this that Malaysians will appreciate what it is they have to do to bolster the Chief Justice’s efforts to improve the administration of justice and how it is they can rally behind the Chief Justice.

For at the heart of it is this one simple truth; I think Malaysians must rally behind the Chief Justice in order to restore the one institution that would help us put this country back firmly on the path to recovery. 

MIS

(This article was first published as "Rallying behind the Chief Justice" in the Edge, 21.01.13)

Putting an end to child marriages

The incidence of child marriages is alarming. By child marriages, I mean the marriage of any person under the age of eighteen. This is more so for the fact that it appears that such marriages are significantly more prevalent amongst Muslims. A recent statement by a United Nations agency here indicates that the number of such marriages has increased significantly over recent years.

The minimum age of marriage for persons of other than the Muslim faith is eighteen. Muslims girls are permitted by state law to marry at the age of sixteen. In some states, like Kedah, the Shariah Court can sanction the marriage of an even younger Muslim girl. In one such case, the Shariah Court recently granted permissions for a twelve-year old girl to marry a nineteen-year old man (some reports have put the age of the groom at sixteen). According to reports, the father of the bride consented to the marriage to avoid any “immoral activity” on the part of the couple. The husband is quoted as saying that his bride had agreed to shoulder the responsibility of a wife.  The reports do not indicate either his view or that of the father as to the ability of the twelve year old to understand the full implications of the situation.

It may be recalled that in 2010, a marriage between a fourteen-year old and her twenty-three year old husband sparked some controversy. The Government at that point took the position that if the marriage was permitted under Islam, and as such within the jurisdiction of the State Government, there was no basis to reject the same. Its position does not appear to have changed.

The Attorney General has, through his continued silence on the subject, endorsed such marriages. 

On my part, I fail to understand how the Federal Government and the Attorney General could have allowed for this self-evidently destructive trend to continue. Such marriages are not only, I say, unconstitutional, they hurt the children concerned and society. Research shows that child marriages have severely adverse consequences on the physical, emotional and mental development of the child. UNICEF has reported that girls who marry young tend to forego formal education, which, not only disadvantages the girls concern, lead to gaps in their knowledge on maternal health and child rearing issues. There is an increased risk of death in childbirth for girls that young.

It is for this reason that the Convention for the Elimination of All Forms of Discrimination Against Women, which Malaysia has acceded to, places an obligation on the State to ensure that the “betrothal and the marriage of a child shall have no legal effect” and to take appropriate steps to regulate this. 

It is also for this reason that various countries have set to combating child marriages with a view to improving the welfare of children and for the protection of the community. It is generally accepted that the prohibition of such marriages will contribute significantly to poverty eradication and the promoting of gender equality. In some countries, punitive measures against persons who perform, permit, or promote child marriages have been enacted.

It is no answer to say that the economic realities of the situation are in favour of such marriages. If poverty is causing such marriages, then poverty should be addressed. We cannot allow the situation to evolve; I shudder at the thought of this process being used to validate trafficking of child brides or, for all purposes intents, validating the pedophilic tendencies of the monsters that prey on young children. Less sensationally, even the thought of young child-divorcees is reason for concern.

It appears that rather than dealing with the root problems, the Government would rather sidestep the matter. In this, it would seem that Islam is being invoked to stifle the controversy. 

While I can appreciate the need for the State to preserve the integrity of personal law, it is not the case that the personal law of Muslims can be understood as permitting the endangering of Muslim minors. More so for the fact that the legal framework of this nation so evidently gives basis to the Federal Government and the Attorney General to intervene and correct the situation.

A question arises as to whether the power of the Shariah Court to validate such marriages is constitutional. The analysis cannot stop at the fact that the Legislative Assemblies of the states enact laws that vest the Shariah Court with the power to validate. Though it is true that the Legislative Assemblies have competence over the legislating of laws for the purposes of the administration of Islam, the discretion to do so is not absolute. It must be appreciated that such discretion is limited to enacting only laws that are constitutional. 

As to the question of what is constitutional in the circumstances, several key features of our constitutional framework are material. Firstly, the constitution protects the fundamental liberties of all its citizens. Two of these are highly relevant to the discussion: the right to life, and the right to equal protection of the law. 

As to the former, as has been underscored by the Federal Court, the right is not limited to merely concerns over corporeal existence. It extends to the intangible aspects of the right to live one’s life, a state of being that hinges on the protection of mental and emotional integrity. As to the latter, it would be wholly repugnant to our system of life to allow for a state of affairs where some vulnerable citizens are protected from physical, mental and emotional abuse while others are not. It is for this reason that while at first glance, some constitutional powers could be read as allowing for violations of these strictures in the interests of some other cause, closer scrutiny would inevitably lead to the conclusion that this could not be the case.

Put another way the power of the State Legislative Assemblies to enact law pertaining to the administration of Islam cannot be extended to validating the enacting of laws that defy the constitution. And yet this appears to be what section 8 of the Kedah Islamic Family Law Enactment 2008 does. It vests the Shariah Court with the power to expose Muslim children to the kind of conduct that is proscribed where non-Muslim children are concerned. In doing so, it discriminates against the former category of children. It permits the undermining of the physical, emotional and mental integrity of Muslim children in a way that is wholly inconsistent with their right to life. 

It is not coincidental that the Child Act 2001, which defines a “child” as being a person under eighteen years of age, makes it an offence to cause physical or emotional injury to a child. The same law provides that a minor is deemed to be in need of the care and protection of the State if there is a substantial risk of the minor being emotionally injured or sexually abused. Sexual abuse is defined to include situations where the minor takes part in sexual activity for another person’s sexual gratification.

It is equally no coincidence that the Penal Code defines the offence of statutory rape as involving sexual intercourse with a girl below the age of sixteen without exception. Marriage does not make lawful such sexual congress. It is highly significant that the Malaysian courts in convicting offenders for statutory rape have found that girls under the age of sixteen are too young to even be introduced to carnal knowledge between a man and a woman.

This takes me to the second point. In recognition of possible conflicts between state and federal laws, their respective law-making bodies potentially unavoidably encroaching into each other’s fields of competence, the Federal Constitution gives federal law primacy. As such, where federal law and state law conflict, federal law prevails. 

That being the case, even if the Kedah legislation (or any other such legislation_ were constitutional, which for the reasons I have explained above I cannot see as being a correct proposition, then in light of Parliament having enacted the Child Act and the statutory rape offence under the Penal Code, the Kedah legislation is void.

I suggest that the circumstances compel the Federal Government and the Attorney General to take immediate action. There is recourse; the Federal Government is entitled in law to mount a challenge on the state legislation in the Federal Court. It must do so.

MIS

(This article first appeared in The Edge on 15.12.2012)

Pushing ahead with Judicial Reforms

There is a growing perception that judicial reforms may finally be gaining traction. 

Efficiency in court has increased tremendously with the Kuala Lumpur High Court and the Appellate courts disposing cases at a commendable rate. It is now not unusual for cases to be disposed by the High Court within nine months from the date of commencement, a far cry from the not so distant days of cases taking anything up to five or six years to be determined. 

This has not only been about managing the situation, or cracking the proverbial whip, it has equally been about embracing a new mindset and the technology that makes it a reality. And while questions are still being asked about the quality of justice, after all justice sped up will at times result in justice denied, I believe the merits of the changes we are experiencing outweigh their demerits. Having said that, this is a serious concern that must be addressed by the Judiciary, a matter I will return to.

On other fronts, eyebrows have been raised by several decisions over the past year or so that suggest an increasingly independent judiciary. Amongst them was the majority decision of the Court of Appeal striking down as unconstitutional section 15(5)(a) of the University and Universities Colleges Act last October. A short while later the High Court acquitted Anwar Ibrahim of sodomy charges. In July the High Court quashed the Home Minister’s declaration of Bersih 2.0 as an illegal organisation, while more recently in October, the High Court quashed the decision of the Home Minister rejecting Mkini Dotcom’s (the owners of Malaysiakini) application for a permit to publish a newspaper.

These decisions, and others like them, are important not just for what they concluded but equally for what they signify to Malaysians: that the Judges of the Malaysian courts are free to determine the issues before them as they see fit and without regard to any concerns, on their part, as to their prospects within the institution. With no intention of undermining the respect these decisions deserve, I believe that the judges felt free to do what it is they thought best principally because the Chief Justice has made it sufficiently clear to his judges that that is exactly what it is they are required to do.

If it is one thing that marks the Arifin Court, it is that the Chief Justice has, at least publicly, consistently expressed his belief in the need for an independent judiciary. While this may seem a truism to many of us, the sentiment is nuanced when we take into account the make-up of the judiciary.

Consider this. The Judicial Appointments Commission was established in 2009. It was established in part due to outcry over the controversial video recording of lawyer V K Lingam that resulted in the establishment of a Royal Commission of Enquiry that in turn made evident serious weaknesses in the way in which judges were appointed. These events led to an admission by the then Prime Minister, Tun Abdullah Badawi, that the appointments process was such that the best persons for the job were not necessarily selected. The self-evident implications of this admission were, and still are, a matter of grave concern. 

It also cannot be ignored that in the period following the judicial crisis of 1988, the number of judges that were appointed from the Bar dwindled to a point of it being negligible. In the period after, the overwhelming majority of judges were appointed from the Attorney General’s Chambers, elevations being perceived by some as “promotions”.  Many had not directly experienced the traditions of the Bar or were given an opportunity to fully appreciate the distinct relationship between Bar and Bench.  This limited exposure had perhaps, in some cases, resulted in a blurring of the defining lines of judicial office and a tendency to respond to authority in a manner not entirely consistent with that august office. This may explain how it is things got to that point where the government felt a need to introduce reforms. 

And although I have no foundation for this, I would venture that the Judiciary has not been left unscathed by the vagaries of race and religious politics, and an Executive that over the years became accustomed to dominating the organs of the State without due regard to the separation of powers.

These are just some of the more important dimensions of the discussion at hand. They however shed some light into the complexity of instilling a sense of independence into an ailing institution. Like all institutions, however, strong leadership and leadership by example will go a long way. And I believe that the Chief Justice is striking the right notes.

This is not to say that more cannot be done. The Chief ought give consideration to concerns that the speedy disposal of cases by judges, in particular the Court of Appeal, has resulted in case loads that impair the ability of judges to do justice. In an effort to finish their lists of cases, some judges have tended to unreasonably restrict the time given to counsel to present their cases. In some cases, it is not apparent that written submissions had been properly digested by the presiding judges, a situation that might be explained by the fact that the case load, as punishing as it is, left them with little or not time to do the same. In fairness, this may have been as a result of submissions coming in late; the relentless schedule has had its toll on advocates as well. 

The Chief must also consider the quality of judgments being handed down leaves anything to be desired. This is not a matter for appeals, which are more properly utilised to address complex points of law. There is a growing concern at the Bar that the quality of judgments is declining. If this is the case, and perhaps the Chief should consider conducting an audit, then urgent steps must be taken to address this, perhaps by appropriate judicial training. This can also be addressed by requiring all judges, even those of the Court of Appeal, to write judgments on each of their cases. It is admittedly a time consuming process, but one with obvious benefits. 

And above all, the Chief must keep his ear to the ground. If he listens, he will hear what it is that is being said about his judges. For as much as lawyers may whinge, at the end of the day their lives are intertwined with those of the judges. The Bench and the Bar balance and keep each other afloat in the stormy seas of state.  

MIS

(First published in "Rule of Law", The Edge, 20.10.2012

Of bouquets and brickbats

The recent investigations and consequent arrests of persons who had stepped on, and in one instance flashed his naked backside at, images of the Prime Minister and his wife has been a cause for wonderment. Like many other Malaysians, I could not help but question the deploying of the already stretched resources of the police to that end when such resources could have deployed to more constructive use. After all, crime did not stop during the period the police personnel involved were chasing down the recalcitrant individuals.

I do not condone rude behaviour and, from that standpoint, question the need for those individuals to have done what they did. I do not think their actions could be characterised as being a part of some great expression, artistic or otherwise, of political dissent that warranted such behaviour.  

I do however recognise that their behaviour cannot be characterised as anything more than bad mannered. And for all of that, I fail to see how it is what they did amounted to a crime.  

Were rudeness a crime, then quite a few Members of Parliament over recent years would have been hauled off to police stations for their conduct in the House. So would have other highly placed officials for their actions elsewhere. One only has to do a keyword search on YouTube with the appropriate keywords to find indisputable evidence of the same. 

More recently, those army veterans who chose to do their special brand of calisthenics in front of Dato’ Ambiga Sreenevasan’s residence would have similarly been hunted down as would have a number of anti-opposition protestors throughout the country. I recall an image of some individuals urinating on a banner on which the images of opposition leaders were depicted; surely they would not have been exempted. 

The point is, and this bears repeating, it is not a crime to express negative feelings about someone, no matter how important an office that person may hold. Consider all those instances identified above, past and present, and one can discern that the same thread runs through them; all these displays of emotion, in one form or the other, were expressions of dissatisfaction.

And while it may be a crime to express thoughts about certain institutions of the State, the actions of those teenagers that took up so much column space and airtime in the media could not by any stretch of the imagination have been perceived as being an attack on any institution. It is not a crime to say one does not like or respect the Prime Minister in as much as it may, and this is a big may, be a crime to say that the institution of the Executive ought be abolished.

I would be surprised if the Prime Minister had himself not suggested to the police that they should perhaps focus on weightier issues than his feelings about being made the subject of some derision. After all, any person who steps into public office must accept the brickbats that come along with the bouquets. He or she must accept that in as much as there may be those who like them, there will always be people who do not. One only has to consider what it is that is happening in the United States of America as the Democrats and the Republicans size each other up for the upcoming presidential election to see how that reality plays out.

This then raises the question of why it is the police felt the need to jump to action as they did.  The answer that they had to in light of police reports having been lodged is, respectfully, disingenuous. Police reports are filed every day, some on matters of far less significance than others. While the police may investigate all such reports, it is commonly known that some matters, more usually those concerning serious crimes, are addressed as a greater priority than others. A report of a murder would overtake in significance a report concerning a petty theft, for instance. The police are also reserved a discretion to not investigate matters that are of no legal consequence. 

The answer may ultimately lie in how it is the Polis DiRaja Malaysia views its role in society. It is clear that the institution views itself as being charged with ensuring public order and public security. The difficulty may however lie in what it is the institution considers public disorder. It seems to me that over the last two decades or so the institution has come to perceive public disorder as being any events that may lead to a disruption of the order of things. 

This is a radically different notion from public disorder in the sense it is meant to be understood i.e. a less decentralised and narrower concept than the ordinary maintenance of law and order. Whether an event of public disorder has occurred has been approached by the Malaysian courts by asking the following question: does the event in issue lead to disturbance of the current of life of the community so as to amount to disturbance of the public order or does it effect merely an individual leaving the tranquility of the society undisturbed?  If it is the latter, then no event of pubic disorder can be said to have occurred.

Approached another way, this principle means that it is not the responsibility of the police to ensure that citizens do not express negative views about the personages forming the government of the day. Our right to do so, in what form we think appropriate (subject of course to laws guarding public order) is enshrined under Article 10 of the Federal Constitution. 

Were it otherwise, one could even argue that casting a vote against the political parties forming the government of the day is an act of sedition. And surely the police are not saying that?

MIS

(First published in "Rule of Law", The Edge, 17.09.2012)

Answering the unasked questions

It appears beyond question that one of the more, if not the most, important factors shaping voter sentiment is corruption and perceived abuses of power. I think many believe that even if a change of federal government would allow us to deal with only these matters then such a change would be justified. To them it seems that almost everything wrong with the way this country is being administered has its roots in the misuse of power and funds.

Central to their thinking are the twin questions of, firstly, where did all the money go and, secondly, how would things be if that money had been channeled as it was meant to be. As if to highlight the increasing intolerance for the perceived abuse, conversations about transitional justice have started; conversations in which the focus is not just the punishing of those who have wronged the nation but also recovering the staggering proceeds of this wrongdoing.

Quite apart from realpolitik dictating that the opposition should exploit this subject to further its political agenda, it is a subject that cuts deep. Malaysians are confronted with a spiraling cost of living – such that the federal government felt it necessary to provide financial aid of RM500 per family whose joint income was RM3,000, the tip of the proverbial iceberg – and a public services that just does not seem to be functioning the way it is meant to That the federal government has spent the years since the last General Election focused on transformation programmes goes far to vindicate this view. In their hearts, Malaysians know that the principal reason for the dilemma that they are in is gross mismanagement.

Political interests have come to dominate. I have said before that the federal government seems less concerned with due governance than with the politics of governance. The sad truth is that the federal government has come to views its continued political dominance as its raison d’etre.  The burring of the line between governance and politics has had its toll. For one, it continues to drive a continued reliance by the Barisan Nasional on the politics of race and religion. It appears that other than handouts and vague promises of better things to come, there is little else that the coalition can offer to justify it being left to run the country.

With a seemingly high number of Malaysians demanding accountability at the present, it is tempting to brush aside race and religious politics as being redundant, or secondary. To do so would however be unwise. While fighting against the abuse of power may be a cause universally subscribed to, this in itself does not address the realities on the ground.

To start, the abuse of power has been condoned by a sizeable part of the electorate in the belief that, however illegal it may have been, it has promoted the cause of good. For some, mainly those in corporate Malaysia, this abuse is a necessary incident of a strong, centralized government that gets things done.  More relevant to the discussion at hand, others believe that this is the price that has to be paid to ensure that special interests are not ignored. While the former can be addressed directly through the establishment of an accountable, meritocratic system, the concerns of the latter group may not so easily be dealt with. Conversely, the notion of meritocracy if not handled with care and sensitivity may further entrench prevalent attitudes within this group. This is a cause for concern for all of us regardless of political allegiances.

Though for those who peddle in race and religion, continued reliance on racial and religious politics may allow for immediate goals to be achieved, it will exacerbate an already critical state of affairs. Much has been said in recent times about the crucial need to rebuild Malaysian society into one that is more competitive and less dependent on the State for its wellbeing. Malaysia’s continued survival as an economically viable, and thus sustainable, nation is the price we may have to pay should we fail to do so.

It is in this context that I believe not enough is being done by all parties concerned to address the wider Malay community’s fear of being marginalised in the face of meritocratic practices. There are several layers to this. We cannot run away from the fact that a sizeable number of Malays are still living in hardship. The fact that there are other marginalised communities does not change this, neither does the fact that marginalised Malays have incongruously fallen victim to the policies that were intended to aid them at the hands of a self-interested political elite. This has not only resulted in the perpetuation of the poverty cycle amongst some members of this community, it has on the back of poorly conceived policies resulted in a large number of Malays who cannot compete in the private sector. A fear of political backlash has led to the federal government absorbing a sizeable number of them into the public services for fear of a political backlash.

It is this constituency that now views its special status as being essential to its survival. Its fears must be addressed.  While there is an ongoing dialogue on what can be done, I do not think that the discourse as is intensive or comprehensive as it should be, primarily due to the politicisation of the issues arising.  Equally, not enough is being said to explain away their fear of being left behind. Fear, as irrational as it often is, must be dealt with independently. It and the stigma that has come to attach itself to this community as a consequence cannot be simply wished away.

I have previously written of the need to depoliticise the process of affirmative action including the implementation of Article 153 of the Federal Constitution. I am firm in my belief. The National Human Rights Society (HAKAM) and Saya Anak Bangsa Malaysia (SABM) have drafted a bill, the Social Inclusiveness Bill, under which a Social Inclusiveness Commission answerable to Parliament would be established. This commission would be mandated to have oversight over all matters of poverty reduction, affirmative action and social inclusiveness by reference to, amongst other considerations, Article 153.  It is the a concrete suggestion of how we can move forward as a nation while ensuring the interests of key stakeholders are looked after. A comprehensive discussion of the idea is however beyond the scope of this comment.

For immediate purposes however it is essential to stress that steps must be taken to address the stigmatization if we are to progress. The unasked questions must be answered, including what it is that will happen to communities that believe they will not be able to compete if meritocratic measures were to be implemented. Though meritocracy is a noble aim in itself, its appeal may not be universally self-evident.

As difficult a political context as these questions, and their answers, may create, political actors cannot be allowed to duck them. Both sides of the divide must be forced to confront them if we are to progress. The way forward is obvious; the only issue is whether we care enough.

MIS

(A version of this comment first appeared in The Edge on 21.07.2012)

The presumption of publication

The recent amendment to the Evidence Act 1950 to introduce section 114A has not been without controversy. The Center for Independent Journalism launched an online petition against the section last month. Its basis is the concern that by virtue of the section presuming publication, and as such responsibility for publications, on the part of internet intermediaries and by impeding anonymous expression of thought, free expression on the internet would be undermined. This has particular resonance for Malaysia in light of the way in which the media is regulated.

Though at first glance the argument advanced by CIJ, and other likeminded organisations and individuals is attractive for its championing of free expression, the subject behooves deeper consideration.

Let me state several obvious features of the matter. The media is highly regulated in Malaysia, to an extent that the so-called mainstream media (MSM) is no longer of great relevance to a significant number of Malaysians. As a consequence, Malaysians seek information and opinions on-line from on-line news sites, blogs and the social media. Needless to say in this unregulated sphere expression is robust, unguarded and perhaps in some cases truer. The value of social media to disseminate opinion and information is undoubted and, in light of how things are in Malaysia, it has become a primary means to influencing opinions. Regrettably though it has also resulted in a plethora of anonymous blogs and twitter timelines that routinely publish highly offensive and defamatory content.

Over the years we have seen bloggers and twitter users taken to court for defamation. In the course of my dealings as a lawyer I have had occasion to represent some litigants in such cases. The misperception that many social media users have is that by virtue of the Government’s assurance that the internet would not be censored, people are free to write what they wish without being held to account for the same.

This puts into focus the first of several key features of discussion. Throughout the common law jurisdictions persons who publish defamatory material can be held liable for their having done so. Publishing on the internet is no different from publishing elsewhere in this regard and the same responsibility rests on the author and publisher (if they are different persons) of the offending publication.

The question therefore arises as to whether a person should be entitled to take advantage of technology to publish anonymously and avoid liability. From a strictly legal perspective, I do not see why this should be the case. By this I mean that if there were means to discover who it was that a particular anonymous blogger, and their identity could be ascertained, then that particular person could be made liable.

A second feature then becomes apparent. It centres on the question of whether legislature is permitted to enact presumptions of fact. The short answer is that such presumptions are not as a matter of course repugnant to the law. The statute books are replete with such presumptions. They are in themselves not unconstitutional. The operative presumption here does not in itself undermine the right to expression.

A question may arise as to why it is there is a need for a presumption of publication in light of there being powers in the hands of the authorities, the Multimedia Commission for instance, to determine the identity of anonymous bloggers and so forth.  Private litigants do not have access to the powers and resources of the State and for that reason are too often at a disadvantage. For instance, over the years we have seen how public figures have been made the subject of vicious smear campaigns, and how these persons have been powerless to deal with these vile attacks. Seen in this light, the practical benefit of a section in the Evidence Act that sets up a presumption of publication cannot be denied. It should not be overlooked that presumptions can be rebutted. The CIJ is concerned that hacking may lead to the wrong persons being found culpable. From a strictly legal perspective, if the hacking can be established then one would have an obvious defence.

If I have a reservation, then it is the ambit of the provision. At a recent CIJ forum on the subject, Jeff Sandhu, one of the panelists expressed a concerned that the section may include within its ambit persons who provide free WIFI, as DBKL now requires.  He may have a point. The breadth of the section is cause for concern not only for the fact that it may lead to innocent persons being found to be liable but also for the practical impact it will have on commerce and trade, in particular, as A Asohan pointed out at the same forum, the thriving internet business scene.  The Government may wish to reconsider the scope of the section by reference to the declared intention underlying the section. It is possible that while the aim of the section is not unconstitutional, the breadth of the provision may lead it to being so.

In fairness, it appears that it is the ambiguity of the underlying intention that is fueling many of the concerns. The socio-political considerations are vastly different from the strictly legal ones I have attempted to highlight. The fact remains that a good many Malaysians do not have much faith in the “system” and think of the institutions of the State as having been politicised. The social media has become the principal means of spearheading meaningful reform, as it has in many other parts of the world. Understandably, civil society is concerned that there may be a collateral purpose to the amendment, one aimed at stifling a burgeoning awareness of rights discourse.

Frankly, it is a concern that cannot be dismissed outright having regard to the state of things in the country. The last thing that Malaysia needs right now is the stifling of political consciousness.

MIS

(First published in The Edge)

Election Commission: Apparent Bias

The Chairman of the Election Commission and his Deputy must resign immediately. In the wake of accusations by the Opposition that they are members of UMNO, they have admitted the same.

It is self-evident that they can no longer hold their positions as the head and deputy head of the Election Commission, a body established by the Federal Constitution for the sole purpose of ensuring that the general elections of the Federation and States are run in a manner that ensure public confidence. Put another way, as has been consistently emphasized by the Coalition on Free and Fair Elections, the Election Commission must act in a manner that is seen to be impartial.

That the perception of impartiality is of crucial significance is underscored by Article 113 of the Federal Constitution, the provision which establishes the Election Commission. 113(2) provides:

"In appointing members of the Election Commission the Yang di- Pertuan Agong shall have regard to the importance of securing an Election Commission which enjoys public confidence."

It is manifest that a member of a political party that will participate, or which may potentially participate, in any general election cannot be made members of the Election Commission. The fact that they are members of a political party is indicative of their political loyalties being to that party. This creates an obvious conflict of interest. This is reinforced in situations where the party Constitution requires allegiance, as I believe the UMNO constitution does.

In the context of UMNO, this issue takes on added significance. Accusations have been made that the Election Commission has conducted itself in a manner that lend to an impression of bias. Leave aside the question of whether there is actual bias, the fact that there is an apprehension of bias is in itself sufficient for concerns to have been raised. To this it must now be added that  the Chairman and Deputy Chairman of the Election Commission have been revealed to be members of UMNO. This will only fuel further speculation of bias. This in turn will add to an already high degree of resentment amongst voters about the way in which they perceive the electoral process to have been manipulated. 

It is no significance that the Chairman and the Deputy Chairman were not active members or had forgotten that they are members. The fact that they are members is in itself sufficient to create the conflict of interest. One wonders whether they would have been endorsed by the Conference of Rulers and appointed by the Yang di-Pertuan Agong (as is required under Article 113(1)) if this fact were known.

In the circumstance it appears that there is little choice in the matter. The Chairman and the Deputy Chairman must resign. It cannot end there though. The Government must take steps to convince Malaysians that measures that have been taken thus far with regard the imminent General Election have been consistent with the highest expectations of a clean and fair election. If the Government calls for a General Election under this cloud, then it will reinforce the belief of many Malaysians that the electoral process has been hijacked. 

MIS