HAKAM Urges the National Art Gallery to Uphold Freedom of Artistic Expression – Statement dd 10/02/2020

Facebook
Facebook
Google+
http://hakam.org.my/wp/2020/02/10/hakam-urges-the-national-art-gallery-to-uphold-freedom-of-artistic-expression-statement-dd-10-02-2020/
SHARE

HAKAM notes with grave concern the National Art Gallery’s decision to take down 4 paintings of visual artist Ahmad Fuad Osman’s exhibition titled “At The End Of The Day Even Art Is Not Important (1990-2019)”.

Ahmad Fuad Osman’s installation ‘Mak Bapak Borek, Anak Cucu Cicit Pun Rintik’ (2015-2018). Photo: Handout – Source the Star

This was reportedly pursuant to a complaint by a board member of the National Art Gallery itself. Some of the 4 paintings depicted politicians or contained political elements. This lead to Ahmad Fuad’s request to close down the entire exhibition.

HAKAM condemns the National Art Gallery’s decision to curtail & censor artistic expression. Freedom of artistic expression is part & parcel of the freedom of speech protected under Article 10 of the Federal Constitution.

Politics plays a big part in our everyday lives. Art, in turn, is a reflection of life. Politics should not in any way be deemed as “sensitive”, “unsuitable” or “undesirable” in the arts. In fact, the arts should readily comment, critique & satirise politics in order to produce an enlightened electorate. The National Art Gallery – of all bodies – should hold true to these principles.

Ahmad Fuad Osman’s ‘Dreaming Of Being A Somebody Afraid Of Being A Nobody’ (UV print on mirror, 2019). Source The Star/Ong Soon Hin

HAKAM therefore urges the National Art Gallery to revoke its decision to take down Ahmad Fuad Osman’s 4 paintings.

HAKAM also requests for the National Art Gallery & the Ministry of Tourism, Arts & Culture’s commitment to not censor artistic expression in the future & to fully respect the freedom of artistic expression.

Lim Wei Jiet

HAKAM Secretary-General

10.2.2020 – HAKAM Urges the National Art Gallery to Uphold Freedom of Artistic Expression

Review Disabled Man’s Conviction for Attempted Suicide & Repeal Section 309 of the Penal Code – Statement dd 3 February 2020

Facebook
Facebook
Google+
http://hakam.org.my/wp/2020/02/03/review-disabled-mans-conviction-for-attempted-suicide-repeal-section-309-of-the-penal-code-dated-3-february-2020/
SHARE

HAKAM urges the Attorney General’s Chambers to review the Kuala Terengganu Magistrate Court’s recent conviction and sentence to 7 months jail of a disabled man for attempted suicide.

Such charges under Section 309 of the Penal Code should never have been instituted in the first place. There is a serious lack of compassion and humanity in the criminal justice system if a disabled man who has reached such a desperate position in life is punished even further with a jail term. The law should not only be concerned with penalties, but must be tampered with mercy and kindness.
HAKAM calls for the disabled man to be given psychiatric assistance in a suitable institution, and not imprisonment where his mental health would likely deteriorate further.

HAKAM further calls for the Government to consider repealing the offence of attempt to commit suicide under Section 309 of the Penal Code. Other Commonwealth countries such as the UK, India and Singapore have already done the same. Malaysia is one of the only few countries which still retain this archaic law in our statute books. This recent conviction encapsulates everything that is wrong with such law.

Lim Wei Jiet
HAKAM Secretary-General

HAKAM Applauds Malaysia’s Best Ever Score in EIU’s Democracy Index 2019 – Statement dd 02/04/2020

Facebook
Facebook
Google+
http://hakam.org.my/wp/2020/02/03/hakam-applauds-malaysias-best-ever-score-in-eius-democracy-index-2019-statement-dd-02-04-2020/
SHARE

HAKAM applauds Malaysia’s best score and rank to date on the Economist Intelligence Unit (EIU)’s Democracy Index. Malaysia is now placed 43rd out of 167 countries, with a score of 7.16 from a maximum score of 10. This is a marked improvement from being scored 5.98 to 6.88 in the previous years since the index started in 2006.

Unfortunately, the rest of the world has regressed in human rights – this year saw the worst average global score since the index started in 2006. That Malaysia has beaten this global trend is a testament of the many strides the Government has undertaken to improve democracy since GE14.

HAKAM nonetheless urges the Government to not rest on its laurels and to expedite its reform agenda. It is reported that Malaysia’s score on the functioning of government (7.86), political participation (6.67), political culture (6.25) and civil liberties (5.88) have remained stagnant. Steps must be taken by the Government to improve Malaysia’s score on such crucial fronts.

HAKAM hereby urges the Government to steadfastly proceed with the following human rights reforms in Malaysia as a first step to improve its performance in EIU’s Democracy Index:

  • Establish an effective Independent Police Complaints & Misconduct Commission (IPCMC);
  • Abolish laws which restrict freedom of speech such as the Sedition Act 1948, Section 233 of the Communications & Multimedia Act 1998 & the Printing Presses and Publications Act 1984;
  • Abolish oppressive detention without trial laws such as the Security Offences (Special Measures) Act 2012 (SOSMA), Prevention of Terrorism Act 2015 (POTA) & Prevention of Crime Act 1959;
  • Abolish the death penalty in all forms;
  • Improve the living condition of prisons & immigration detention centres;
  • Enact a Freedom of Information Act; and
  • Comprehensively overhaul the education syllabus to educate the young on the importance of human rights, democracy and the rule of law.

Malaysia has the opportunity over the next few years to be a beacon of democracy in a world where democracy is slowly dimming. Let us all not squander such chance.

Lim Wei Jiet

Secretary-General of HAKAM

HAKAM Statement – 3.2.2020

Lawyers challenge Singapore attempt to use ‘fake news’ law over prison killings claim

Facebook
Facebook
Google+
http://hakam.org.my/wp/2020/01/24/lawyers-challenge-singapore-attempt-to-use-fake-news-law-over-prison-killings-claim/
SHARE

From Free Malaysia Today

Lawyers for Liberty adviser N Surendran, flanked by Gurdial Singh Nijar and LFL director Melissa Sasidaran, talking to reporters. Pic from FMT.

Lawyers for Liberty (LFL) is seeking to declare as illegal an order issued by Singapore’s home minister, under its anti-fake news law, over claims by the rights group on brutal extra-legal execution methods carried out at the Changi Prison.

In a suit filed at the High Court registry today, LFL is also seeking a court pronouncement that the minister, or anyone acting under his authority, could not act to enforce any provision of the Protection from Online Falsehoods and Manipulation Act (Pofma).

“A correction direction issued by Singapore under Pofma is illegal, oppressive and an attempt to silence Malaysian citizens from exercising their right to free speech in Malaysia,” they said.

Apart from LFL, the other plaintiffs are its adviser, N Surendran, and director Melissa Sasidaran.

Minister K Shanmugam is named as the defendant.

The swift action came about after LFL claimed it had received evidence of such methods by prison guards in the event the hanging procedure fails during execution.

Surendran, who is also a lawyer, alleged that if the rope broke during a hanging, a prison officer would pull the rope that was around the neck of the prisoner towards him.

“Meanwhile, another prison officer will apply pressure by pulling the body in the opposite direction.” he had said.

Saying the details were shared by a former executioner at Changi Prison, Surendran said prison guards would kick the convict’s back “with great force in order to break it”, while ensuring there would be no tell-tale marks in case there was an autopsy.

Singapore said the claims were “untrue, baseless and preposterous allegations”, adding that all judicial executions in the state were carried out in strict compliance with the law.

It also instructed the Pofma office to issue a “correction direction” against LFL’s statement on its website.

Meanwhile, lawyer Gurdial Singh Nijar said this was an unusual action against Singapore as the penalty for violating Pofma carried a jail term.

“They can issue a warrant of arrest against Surendran and Melissa to face charges there,” he said.

Gurdial, who is taking up the case with Ambiga Sreenevasan, said the minister could rely on sovereign immunity in not responding to the suit but, at the same time, he had encroached into fundamental rights of Malaysian citizens.

“You cannot extend your laws against the citizens of another nation,” Gurdial said, adding that he hoped the minister would contest the action in the Malaysian court.

Meanwhile, Ambiga said it was imperative for the plaintiffs to file this action against the minister as the new Malaysian government has repealed its Anti-Fake News Act.

Meanwhile, in an affidavit in support of the action, the plaintiffs said LFL’s statement issued on Jan 16 was in the public interest as there were many Malaysians facing the death penalty in Singapore.

They said the minister issued an order to do a correction and failure to do so was an offence under Pofma, which carried a fine of up to S$20,000 or a maximum jail sentence of 12 months for individuals.

They said LFL had issued a press statement three days ago dismissing the minister’s stand.

Transparency the key to trust

Facebook
Facebook
Google+
http://hakam.org.my/wp/2020/01/21/transparency-the-key-to-trust/
SHARE

From the Sundaily

WE the people need to have faith in the government. Believing in what it says and does. And its promises for the future. For this to happen, the government must disclose its plans and policies in a way that is easily understood by the people. And then engage them in a participatory process, seeking their feedback and shaping its policies and plans to accord with the wishes of society. This requires it to be transparent to help strengthen citizens’ trust in policymakers and thus enhance the accountability of public administrations.

In short, transparency is the key to citizens’ trust. This appears to be sadly lacking in the New Malaysia as pointed out at a forum organised by the National Human Rights Society (Hakam) last weekend. It centred around the failure of the government to release the report of the Institutional Reform Committee (IRC). Recall that the reform agenda was central in PH’s election campaign: reforms to ensure that public institutions will be insulated in the future from being subverted. Prime Minister Tun Dr Mahathir Mohamad in his recent Che Det blog posting acknowledged as much. That PH took over from a kleptocratic government, which among other ills, had “destroyed its finances, undermined its administrative agencies and abused the laws … and generally undermined the moral of the people”.

What is now taking the wind out of the sails of reform is the refusal of the government to release the reports not just of IRC but as well that of its superior body – the Council of Eminent Persons. The people participated in these processes with an unrestrained gush of passion and enthusiasm. And the IRC’s panel worked tirelessly to produce its recommendations.

The expectation was that this new participatory process would form the new ethos of good governance. Resonating with the caution delivered by Lord Bingham head of the UK judiciary in a 2003 court decision (R v Shayler): “There can be no assurance that government is carried out for the people unless the facts are made known, the issues publicly ventilated. Experience shows that publicity is a powerful disinfectant”.

You can hardly blame the electorate for handing a litany of by-election defeats to PH and its allies. An unconditional declaration of its disillusionment. And, charitably, the expectation that the government will heed the signals and return to the path of delivering on its promises with public involvement. Promises which roused the electorate to sweep it into power.

Let’s survey the “disenchantment landscape”. First, the laws either enacted or employed by the previous government in its twilight years to suppress the people – laws like Sosma and the Sedition Act.

All are very much alive and kicking under the new regime. I remain convinced that the IRC made concrete and incredibly useful recommendations for reform, which the government has kept under wraps. The peoples’ disenchantment was reflected in a well-patronised vigil last Saturday against the continued use of these laws.

Then there is a cheerful and optimistic forecast of the economy. When the reality may not be quite that – with ministers telling us that all is hunky-dory, as a columnist wrote in the Sunday Star. The cost of living is the biggest problem. On the ground, SMEs, retailers and hawkers will tell you their business is bad, by one account. The cost of doing business is high, they complain. There have yet to be solutions proffered, discussed and implemented that inspire confidence in the rakyat that all will turn out for the better sometime soon.

Then the lack of verve and commitment to curb strident voices spewing hatred that spawns racial disunity and religious animosity. Racial and religious disunity is at an all-time high.

An opposition leader recently spoke of ministers talking without a clear policy and considerations of the viability of the projects they propose. And that Cabinet ministers leave meetings saying they do not agree with some decisions. While there may be little truth in these allegations, yet these views gain currency when the people are delinked from policy formulation and implementation.

Such is the frustration that it led Ambiga, a member of the IRC, to announce at Hakam’s forum that people will take to the streets if the promised reforms fail to materialise timeously.

The message is clear. Gain the trust through transparency. The quality of transparency, like “mercy” in Shakespeare’s Merchant of Venice “… is not strained. It droppeth as a gentle rain from heaven upon the place beneath. It is twice blessed. It blesseth him that gives and him that takes”. So it benefits the government and the governed.

Trust and accountability go hand in hand. Trust in political institutions is a key element of representative democracies. Trust in the rule of law is also the basis for democratic participation of citizens. All clear indications that trust is an essential condition of good governance.

Dato’ Dr. Gurdial Singh Nijar is the President of HAKAM.

Institutional Reform Committee (IRC) Report: Why the Secrecy? HAKAM Forum dated 18 January 2020

Facebook
Facebook
Google+
http://hakam.org.my/wp/2020/01/20/institutional-reform-committee-irc-report-why-the-secrecy-hakam-forum-dated-18-january-2020/
SHARE

“IRC Report: Why the Secrecy?” was the first HAKAM forum of 2020, held on 18 January 2020 at the KL and Selangor Chinese Assembly Hall. The well-attended forum started at 10:00 am and was led by a panel of distinguished guests, who all had been involved and well-informed of the IRC process; Dato’ Ambiga Sreenevasan (IRC member and former President of HAKAM), Ms. Siti Kasim (Maju), and Mr. Sevan Doraisamy (Suaram) and the panel was moderated by Dato’ Dr. Gurdial Singh Nijar (HAKAM President). The presentations of the forum speakers were followed by a Q&A session, and the forum ended at 12:00 pm.

In October last year, prime minister Tun Dr Mahathir Mohamad said the confidential report by the IRC and its seven recommendations that have been passed to the quasi-official Council of Eminent Persons can only be made public once all Pakatan Harapan (PH) component parties agree to it.

Key points from the forum on the issue of the release of the IRC Report to the public included:

  • Dato’ Ambiga suggested a pilot pilot project by “releasing just one set of recommendations [by IRC] and see whether the government falls down the next day.”
  • Dato’ Ambiga said she does not know the real reason why PH did not want it to be released but she would “charitably” assume that it is because of public and voters’ perception towards the already much-criticised administration.
  • By withholding the report, the government has denied the public and their own supporters the opportunity to be involved in making the country a better place, something that was promised by PH when they rolled out their election manifesto before 2018 election.
  • Siti Kasim pointed out that transparency is the cornerstone of good governance, hence the Pakatan Harapan (PH) government should make public the Institutional Reforms Committee (IRC) report.
  • Sevan suggested that all CSO and NGOs who have contributed to the making of the report, can release their own recommendations to the IRC, which in effect is a major part of what the IRC has referred to in its process, and this way the public can have access to the institutional problems pointed out and recommended reforms.
  • Dato’ Dr. Gurdial mentioned that HAKAM has been following up the release of the Report with the PM, Tun Dr. Mahathir Mohamad and will continue to do so until the people can know the content of the report.

Gallery:

HAKAM wishes to thank everyone who came to the forum and the media for covering the event. See you all next time!

HAKAM Forum Media Coverage:

The Malay Mail Online

Malaysiakini

Malaysiakini

The Malaysian Insight

Sinar Harian

 

Disclosure of audio clips by MACC: Legal or not? Statement Dated 11 Jan 2020

Facebook
Facebook
Google+
http://hakam.org.my/wp/2020/01/12/disclosure-of-audio-clips-by-macc-legal-or-not/
SHARE

Statement published in Malaysiakini

HAKAM Statement on Release of Audio by MACC Dated 11 Jan 2020

The recent disclosure of a clutch of videos by the MACC chief Latheefa Koya has predictably attracted wide public comments. Concerns raised include such issues as the right to privacy, right of an accused to a fair trial. In short, issues that deal with human rights, which are within the remit of this society.

Two matters are of direct relevance. First, the legality of the disclosure. Secondly, the issue of transparency.

Legality

The MACC is invested with the power to receive complaints and pursue investigations. It then can forward the papers to the relevant authority for further action, which could be to further the investigations or to prosecute any alleged offender.

In this case, it is obvious that the MACC had embarked on investigations. For example, it confirmed the authenticity of the tapes as well as the actors.

It also made a preliminary assessment that the contents had potentially violated various laws: including the Official Secrets Act 1972, abuse of power, subverting the course of justice and corruption. Some involve its jurisdiction; others that of the police. Hence it passed the papers on to the police as well to continue with investigations for matters within their scope. So the MACC acted squarely within its statutory powers.

Public disclosure

Some say that there should not have been any public airing of the tapes. And that the MACC should abide by the outcome of the investigations and present this video evidence in court if anyone is charged.

The issue then is: whether this disclosure by the relevant authority wrong in law.

It is not unusual for the disclosure of evidence in relation to ongoing investigations by the relevant authorities – even before investigations are completed and any charges levied. For example, the US Department of Justice publicly outlined in great detail the facts and evidence in relation to the 1MDB money-laundering matter – before any action was instituted.

Granted that this is not normally done. But here we are dealing with matters of grave public concern – involving an erstwhile PM who holds the position of public trust. He is accountable to the country and its people. Any breach or compromise of that trust must necessarily be of immediate public concern and interest.

Such information ought not to be kept under wraps. Else it may suffer the fate of the earlier 1MDB scandal investigations. Which, as we now know, were scuttled by the investigating authorities at the behest of high authority. The then head of MACC was if these tapes are to be believed and proved, complicit. As were many others. Essentially to stultify action against wrongdoing. But for the change of government, all alleged high crimes would have been dead and buried.

Surely that is not what we should wish to revert to. Opaque transparency which leads to the subversion of the course of justice.

Not normal crimes

This case must necessarily be distinguished from normal crimes – even heinous ones committed by individuals. Crimes such as murder and the like. These are essentially between private persons.

But in cases involving the wider public interest – involving the head of government, different considerations apply. Examples abound throughout the world. In the US in three recent cases where the president was alleged to have been involved in illegal activity, the entire facts of the investigations as they proceeded, were laid bare to the public.

Recall the Watergate scandal involving illegal wiretapping at the behest of President Nixon – which led to his resignation. Also, the Monica Lewinsky sex scandal involving president Bill Clinton. Currently, there is the ongoing disclosure of allegations against President Donald Trump regarding his alleged conduct involving trading favours with the Ukraine president.

Nearer home, the public has routinely demanded answers from the investigating authorities on the disappearance of pastor Raymond Koh, Amri Che Mat, Ruth Stepu and Joshua Helmi.

Nature of the alleged wrongdoing

The alleged wrongdoings are huge. First, subverting the course of justice. Seeking to cover up a crime by manipulated contrivances – such as creating evidence to justify an alleged wrong is a grave crime. It is an offence separate and distinct from the ongoing 1MDB or SRC criminal prosecutions.

It works like this. An accused seeks to tamper or subvert witnesses or evidence in relation to a case by asking them to lie or create false documentation. This is after a prosecution has been commenced. Law reports are studded with a litany of successful prosecutions in such cases.

Then there is a case of seeking favours from the head of another country. Favours given must be returned. This could well impact the country’s sovereignty. It is in this context that the spectre of national security was raised by Latheefa. Note that Trump’s impeachment proceedings were commenced precisely on this national security concern.

The disclosure by the DPP seconded to MACC from the AG’s chambers (later made its chief) of ongoing investigations to the alleged wrongdoer compromises the integrity of the MACC and the government.

Latheefa’s public disclosure of these alleged offences now insulates them from any manipulation by anyone. In short, no one can now surreptitiously interfere. The public will be effective gatekeepers.

Is it sub judice?

As indicated, the facts disclose offences that are distinct from the ongoing prosecutions. Hence no question of sub judice arises. In any event, sub judice arises when disclosure will prejudice the mind of the judge.

Our judges are trained to decide cases on the facts as adduced in court. Any failure to evaluate the evidence and consider with cogent reasons the evidence presented by an accused is routinely corrected by our appellate courts.

Is it contempt?

Contempt happens when one interferes or jeopardises the administration of justice. For the reasons aforesaid, there is hardly any basis for contempt. Indeed the disclosures reveal an attempt to interfere with the due administration of justice.

Disclosing investigations to potential wrongdoers so that they can cover up their tracks; or to solicit documentation to justify money laundering is what strikes at the due administration of justice.

Is reliance on the tapes legal?

Quite obviously, the tapes have been provided by a whistleblower. Any person who discloses any alleged crime to the authorities such as the police or the MACC is protected by the Whistleblower Protection Act 2010. He or she is entitled to confidentiality and is also protected against any retaliatory action.

Latheefa is hence justified in not disclosing the source of the videos as yet. Interestingly, Trump’s efforts to get the name of the whistleblower who provided tapes of his conversations relating to the Ukranian president has been consistently refused by the House of Representatives.

Right to privacy

Indeed this is an invaluable right that ought to be protected – although it is noted that there is no such right in the law of tort recognised as yet in Malaysia. In any event, the right to privacy has to yield to the wider public interest in upholding the rule of law. The right to privacy cannot prevail to prevent the disclosure of a crime.

Bank Bumiputra Malaysia Berhad (BBMB) founder Lorraine Osman’s efforts to prevent the disclosure of evidence (including of monies held in lawyers’ accounts) was rejected by our courts as there is no protection or privilege from disclosure of any communication made in furtherance of any illegal purpose or of a fact showing that any crime or fraud has been committed. See AG Hong Kong v Lorraine Osman [1993].

Significantly, taped conversations of potential terrorist acts have been relied upon routinely in curbing such acts by almost all functioning democracies. Ultimately, in any prosecution, the accused can question the authenticity of the tapes and the purport of its contents.

Motive

Finally, aspersions have been cast on Latheefa’s motive for the disclosure. Including a tie-up with a pending by-election. This is a red herring. One should address the legal issues; which this statement seeks to do.

Conclusion

It is understandable that concerns have been raised for this rather unusual and dramatic disclosure of the tapes. But given its legality, as explained, should not we applaud the MACC for disclosing the acts that seem to compromise the trust and fiduciary duty placed in our leaders?

After all, transparency, which leads to accountability, is pivotal to the Rule of Law.

 


GURDIAL SINGH NIJAR is the president of the National Human Rights Society (Hakam) and former law lecturer at Universiti Malaya.

Threat by counter groups – Law Speak

Facebook
Facebook
Google+
http://hakam.org.my/wp/2019/12/30/threat-by-counter-groups-law-speak/
SHARE

From the Sun Daily

THE dialogue on the introduction of the jawi script in schools was banned by a last-minute court order secured by the police. The reason given was that it would cause chaos. A large number of Malay groups had threatened to scuttle the dialogue congress; convened essentially by Chinese educationists with a smattering of others including a representative from the Ministry of Education.

Earlier the prime minister had warned of the potential for reprisals by other groups against the congress.

All well and good. Law and order is everybody’s concern. And a valid consideration in curtailing freedoms guaranteed by the Federal Constitution. Especially when activities impinge on the delicate race and religion issues.

But pause awhile. The basis is that one ethnic group demands that this issue not be discussed. Can a constitutional right that is fundamentally-guaranteed be thus thwarted?

Admittedly, the constitution allows the curtailment of the right to free speech and assembly on grounds of public order and national security. This present ban at the behest of the police implies that (a) the police with its vast panoply of powers is unable to maintain law and order; and threats by others; and (b) the government is powerless to effectively staunch others from disrupting lawful activities.

The police are eminently placed in a worst-case scenario to impose conditions for any assembly to be held. This would relate to time, manner and place. In other words restrictions but not outright ban. Indeed the Peaceful Assembly Act 2012 allows the imposition of such restrictions.

Significantly, if there is a proposal to have a “counter assembly” the OCPD has the power under the Act “if it is evident that the organisation of the counter assembly will cause conflict between the participants of the assemblies” – to get that assembly organised at another date, time or place. Thus the right of all to assemble peacefully is guaranteed in a balanced way.

I recall that a group sought to injunct one Bersih rally on its eve alleging potential disorder by counter assemblies. The High Court threw out the application. Reminiscent of Lord Denning’s exhortation that the courts “should not interfere by interlocutory injunction with the right to demonstrate and to protest any more than they interfere with the right of free speech; provided that everything is done peaceably and in good order”. And “the right to demonstrate and the right to protest on matters of public concern … are rights which it is in the public interest that individuals should possess” and that “history is full of warnings against suppression of these rights” Hubbard v Pitt (1967).

Now, the convening of the congress by all accounts was done legally in complete compliance with the law. There is no suggestion that it intended to break the law. It was a mere dialogue – to discuss, clarify and explain the issues. No threat to the peace. The threat came from others who assumed to themselves the right to prevent others from assembling together.

Clearly, to prevent a lawful assembly from taking place on the basis that it will be met by an unlawful opposition is to give in to lawlessness. Note that the counter group was not given the go-ahead to carry out their demonstrations. Surely, as a general rule, the correct approach must be for the law enforcement agencies to deal with those who are threatening to break the law rather than to act against those who are seeking to comply with it. “If danger arises from the exercise of lawful rights resulting in a breach of the peace, the remedy is the presence of sufficient force to prevent the result, not the legal condemnation of those who would exercise those rights”. R v Londonderry (1861).

Dealing with a similar threat by a counter group, the revered English judge Lord Denning, speaking for the English Court of Appeal, said:

“The evidence is that if there is any trouble it will not be at the meeting at all. If it does occur, it will be outside caused by opponents … Their members may threaten or assault the members of the National Front; or try to stop their meeting. It would then be the interrupters who would be the destroyers of freedom of speech. They cannot be allowed to disrupt the meeting by mass pickets, or by violent demonstrations, and the like. The police, will, I hope, be present in force to prevent such disruptions”. Verrall v Great Yarmouth BC (1980).

More fundamental issues arise. The ban on this ground engenders, if not exacerbates, ethnic tensions. Any concerted group can prevent the pursuit of legal activity by others, especially minorities. By lodging an avalanche of police reports and contriving a law-and-order threat. Then the very exercise of constitutional freedoms is at stake. Undermining the very ethos of the Rule of Law – a key pillar of our Rukun Negara and proudly declared by the present government as its guiding governance compass. Undermining as well the purpose of the constitution “to restrict the majority’s ability to harm the minority”: James Madison, founding father of the US.

Also, by banning open dialogue, critical matters are then relegated to be dealt with in, perhaps, ill-informed and even insidious cloistered whispers.

One of the challenges of the government is to curb this sort of adversarial ethnic remonstrations. Rather than to succumb to it. For, once mob rule pervades, the “Harapan” for the rest of the citizenry could well recede into oblivion.

Gurdial, is president of Hakam, the National Human Rights Society. 

The case for the constitutionality of vernacular schools

Facebook
Facebook
Google+
http://hakam.org.my/wp/2019/12/24/the-case-for-the-constitutionality-of-vernacular-schools/
SHARE

From Malaysiakini

Recently, several groups and individuals have filed suits in court to declare vernacular schools unconstitutional. The argument mounted is that vernacular schools are publicly funded, and when they use Mandarin or Tamil as the main medium of instruction, this contravenes Article 152 which provides that the Malay language is the national language.

In my humble view, vernacular schools are constitutional. This is particularly so when one reads Article 152 of the Federal Constitution in totality and appreciates the historical context of vernacular education in Malaysia.

Protection of use of vernacular languages

Article 152(1) does say that the national language shall be the Malay language – there is no dispute about this.

However, there is an exception which is entrenched in Article 152(1)(a): “provided that no person shall be prohibited or prevented from using (otherwise than for official purposes), or from teaching or learning, any other language”.

It is clear that “using” any other language, besides the Malay language, is protected under the Constitution – provided it is not for “official purposes”.

The key question: can the medium of instruction in vernacular schools be categorised as an “official purpose”?

Article 152(6) defines “official purpose” as “any purpose of the Government, whether Federal or State, and includes any purpose of a public authority”. In turn, a “public authority” is defined in Article 160 as the Yang di-Pertuan Agong, a state ruler, federal government, a state government, a local authority, a statutory authority exercising powers vested in it by federal or state law, all the courts, or any officer appointed by or acting on behalf of such parties.

As one can observe, a vernacular school is not explicitly included as a “public authority”. But could it possibly be categorised as a “statutory authority exercising powers vested in it by federal or state law” within Article 160?

This is when the contentious Merdeka University case comes into the picture. In 1978, Chinese guilds and associations filed a petition to incorporate Merdeka University, which would use Chinese as a medium of instruction.

The education minister rejected the petition on the basis that it was contrary to the national education policy.

The matter was brought to court. In 1982, the Federal Court held that it was not unconstitutional for the government to reject the incorporation of Merdeka University. Its reasoning is as follows:

(i) A university has the requisite public elements – it is subject to some degree of public control in its affairs, involves a number of public appointments to office, acts in the public interest and is eligible for public funding.

(ii) A university is therefore a “public authority” within the meaning of Article 160.

(iii) A university is also a statutory authority exercising powers vested by it under federal law.

(iv) As such, having Chinese as a medium of instruction would be use of the language for an “official purpose”, which use may be prohibited under Article 152(1).

On the surface, it would seem that the Merdeka University case is a basis for arguing that vernacular schools are unconstitutional.

However, there are key differences between the two. Unlike a university under the University and University Colleges Act 1971 (UUCA), vernacular schools are governed quite differently under the Education Act 1996:

Pertinently, the Federal Court in Merdeka University was “greatly influenced by the scheme of the [UUCA], which is peculiar to Malaysia, in that it prohibits the establishment of a university within its context, except in accordance with its provisions (section 5), and that a university, when established thereunder, is deemed to have been established by section 7(1) thereof”.

In contrast, as highlighted above, there is no such prohibitive requirement for vernacular schools which merely need to be registered with the Ministry of Education under the Education Act 1996.

It is, at the very least, arguable that vernacular schools are not a “public authority” or “statutory authority” – therefore the use of Mandarin or Tamil as a medium of instruction is not for an “official purpose” and is protected under Article 152(1)(a).

Right of government to sustain use of vernacular languages

In the alternative, there is a second exception entrenched in Article 152(1)(b): “Nothing in this Clause shall prejudice the right of the Federal Government or of any State Government to preserve and sustain the use and study of the language of any other community in the Federation.”

In simple terms, if the federal government wishes, it has the power to preserve and sustain the “use” and “study” of Mandarin or Tamil in Malaysia. Such power is not only limited to the “study” of Mandarin or Tamil, i.e. purely Mandarin language classes. This power arguably also extends to the “use” of Mandarin or Tamil, i.e. using Mandarin as a medium of instruction to teach Science, as in vernacular schools.

For the vernacular schools suit, the cabinet has already come out in favour of the existence of vernacular schools. It has instructed the attorney-general to act accordingly. Hence, Article 152(1)(b) acts as an additional bulwark for the continuation of vernacular schools.

In the Merdeka University case, the government was against its incorporation. That is why the scope of Article 152(1)(b) was not explored in detail. The Federal Court may have decided differently if the government had supported the establishment of Merdeka University.

Our constitution

Finally, it can be implied that the drafters of our Constitution intended for the continued existence of vernacular schools that use Mandarin or Tamil as a medium of instruction.

In the years leading up to the drafting of our Constitution, the drafters must have been well aware of the contentious debate on vernacular schools through the 1951 Barnes Report, 1952 Fenn-Wu Report, 1956 Razak Report and the Education Ordinance 1957 – as well as representations by Umno, MCA and MIC from the Alliance Party.

Yet, the Constitution made no reference at all to the gradual abolition of the use of Mandarin or Tamil as a medium of instruction in vernacular schools.

Contrast this with the 10-year grace periods to transition from English to the Malay language for proceedings in Parliament and State Legislative Assembly (Article 152(2)), authoritative texts of Bills and Acts of Parliament (Article 152(3)) and superior courts (Article 152(4)). And for proceedings in subordinate courts, it shall be in English until Parliament provides otherwise (Article 152(5)).

If the drafters of our Constitution intended for such a similar transition for vernacular schools, they would have explicitly mentioned so in Article 152.

This is, of course, not indicative of my views on the relationship between vernacular schools on national unity – that is the subject matter of another long debate.

Suffice to say, the Constitution, in its present form, appears to protect the use of minority languages and the continued existence of vernacular schools.

LIM WEI JIET is a constitutional lawyer and Secretary General of HAKAM.

All within reach of the law – Law Speak

Facebook
Facebook
Google+
http://hakam.org.my/wp/2019/12/17/all-within-reach-of-the-law-law-speak/
SHARE

From the Sun Daily

PERHAPS it could be construed as a blight of our justice system when two Court of Appeal decisions struck out actions against Datuk Seri Najib Razak, the then prime minister for alleged wrongdoing in executing his public office. In particular, allegedly pocketing 1MDB funds. On the basis that such actions for misfeasance could only be brought against “public officers”. And, ruled these courts, the prime minister was not such a person.

The decisions raised considerable disquiet in the public mind.

Indeed, the High Court judge deciding the case said rather apologetically that many may find his ruling “most surprising and quite unpalatable to swallow”.

For it then immunises a prime minister from the reach of the law by saying he is not a “public officer” – what else could he be when he draws his salary from public funds; and is entrusted with the task of fulfilling public duties on behalf of the nation?

This renders illusory: “Be ye never so high, the law is above you” – Thomas Fuller’s wisdom cited by courts the world over. By Lord Denning in the 1977 Gouriet case; and our Federal Court in PP v Ottavio (2004).

And recently by a seven-member bench of the Federal Court led by Chief Justice Tan Sri Tengku Maimun in Tony Pua v Najib Abdul Razak. Which overruled the previous decisions.

The Federal Court held that it was wrong to say that the prime minister was not a public officer.

Said Justice Nallini in delivering the Federal Court’s grounds of judgment, it would be a violation of the rule of law to exonerate the prime minister for “outrageous” conduct where he was “alleged to have acted unlawfully, illegally, recklessly and/or knowingly in relation to substantive quantities of funds to the ultimate detriment of … the general public”.

This would be “anathema to the doctrine of the rule of law and the fundamental basis of the Federal Constitution”. Because then a prime minister “can act with impunity, so as to knowingly and/or recklessly dissipate public funds and remain immune to civil action in tort …”. Such a construction of the term “public officer”, which erodes the rule of law, is repugnant and cannot prevail.”

The comprehensive, lucid and admirably analytical judgment had no difficulty in debunking the two Court of Appeal decisions that had held that the prime minister did not come within the definition of a “public officer” under the Interpretation Acts and the Federal Constitution; and could not therefore be sued for the tort of wrongdoing in public office.

First, said the judgment, any “public officer” can be sued for wrongdoing for the tort of misfeasance under the common law – defined as a body of legal rules that have been made by judges in cases, as distinct from rules and laws made by Parliament or in official statutes.

The essence of this tort is that public power cannot be abused in bad faith.

Hence it applies, said the judgment, to holders of the highest offices in administration who are entrusted with the greatest public power and corresponding duty to exercise it for the public good.

To immunise the prime minister and ministers would be repugnant to common sense and the rule of law.

Secondly, neither the Federal Constitution nor any act specifically modified or abrogated the common law as regards the liability of “public officers” as widely defined to include persons in the position of the prime minister.

The earlier decisions of the Court of Appeal and the High Court had ruled that the prime minister and members of the Cabinet are members of administration and not public officers because they were not included in the list of “public services” in Article 132 of the Federal Constitution.

This reasoning was flawed, ruled the Federal Court. Because Article 132 merely identified the bodies and persons involved in the governance structure of the country. It was not meant to do away with the common law definition of the term “public officer”.

The judgment is remarkable in many respects. It locates the tort of misfeasance in public office as grounded in the rule of law. Thus placing all within the reach of the law.

It reinforces executive accountability to legal authority. It upholds the public interest in bringing public servants guilty of outrageous conduct to book.

It dispels the notion that anyone – no matter how high – who abuses his public office is free to act with impunity. And it accords any citizen the standing to make a claim for the loss suffered when a prime minister entrusted with public funds uses them for his personal benefit – if indeed he or she can prove such damage.

The case will now proceed to trial for the litigant to prove the misappropriation of public funds and the loss suffered.

This is a landmark judgment that resoundingly places the role of the judiciary in preserving the “internal architecture” of our constitution – which comprises the rule of law and the separation of powers.

It will long stand out as a judgment which resonates with the words of Montesquieu – a French judge and philosopher, famous for his articulation of the theory of separation of powers: “There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.”

Gurdial is a former law professor and President of HAKAM.