DEMOCRACY UNDER SIEGE with Emeritus Professor Shad Saleem Faruqi: An Overview

This piece is written by HAKAM Youth, following a Facebook Live with Prof. Shad Saleem Faruqi on 4 March 2020

Democracy under Siege?
With the formation of a “backdoor government”, one tends to wonder: what of democracy, then? Democracy is more than the political executive; the government is under siege, indeed, but “democracy” is a broader, richer, more beautiful concept. Other institutions play a role, and they are playing it well—the judiciary is still in place, a civil service is still running, there are no riots involving tear gas… This sets Malaysia apart from the other nations.
In our country, democracy is alive. The fact that this forum took place indicates that it is. But, of course, there are many ways to fortify it.

Defining “Democracy” in Malaysia

There is no simple definition, for “democracy” consists of principles. Perhaps it is well to say that it cannot be defined—the way you cannot define “sunset” and “sunrise”—
but it can be described. Like how you would recognise “sunset” for the varying hues of the sky and the noise of night creatures coming to life each minute leading into nightfall, “democracy” is identifiable for its attributes. Most notably, the government must be answerable and accountable to the people, and the people should have the
right to change the government periodically.
Normally, “democracy” is associated with a decision-making process which requires prior discussion. Besides, this term is often associated with elections, an independent judiciary, and the recognition of human rights, especially the right to dissent.

The Right to Dissent

To what extent can the citizens demand for the enforcement of democracy? As a constitutional monarchy, there exists a glass ceiling above the rights given to the people in Malaysia. Take the right to assemble, for instance. On one hand, there is an argument that as a democratic country, the people have the inherent right to assemble and protest,
especially in light of the recent formation of the “backdoor government”. On the other hand, this right has limitations. One aspect not often borne in mind on the right to dissent is this: the right to demonstrate peacefully. To illustrate, an individual who is rich or resourceful may be able to find their platform through the media. However, the only way for the poor and the everyday worker to express their pain and sorrow is by going out to the street with placards. Dissent is a part of democracy. Discussion before decision. It is undeniable that in some respects, democracy is a chaotic form of living as compared with autocracy. Where the power to decide lies in the people, there will always be differences in opinion. These opinions are allowed to be expressed, and efforts are to be made to
reconcile them. In Malaysia, we have only had 14 general elections; in Malaysia, democracy is young, democracy is emerging. With changes in the law, there is hope.

On that note, Professor Shad mentioned that he was part of the team to assist the Attorney General in the repeal of Section 27(5) of the Police Act and the drafting of the Peaceful Assembly Act, and he noted how the Peaceful Assembly Act was not enforced in the spirit in which it was passed. Under the Act, there is no requirement of
prior permission, all that is required is a notice. The spirit is this: the police should be informed of an assembly, so as to manage, and not prohibit. If properly enforced, the police can therefore become the facilitator, instead of the prohibitor.

The law itself is taking the middle path — demonstrations are allowed, but only in ways which do not amount to a trespass.

Protests against the “Backdoor Government” Formation

The “backdoor government” referred to is the situation where the electorates in 2018 have chosen to reject a particular coalition to elect another. It is conceded that at some point in time, the government in power has lost track of its actual aims. Constitutionally speaking, where the government collapses for whatever reason, be it the death of the Prime Minister or his resignation, or the break-up of the coalition, the Yang Di-Pertuan Agong has to appoint someone in the Prime Minister’s stead. Ideally, the individual appointed should be required within a framework of time to prove to the Yang DiPertuan Agong that he holds the confidence of the majority. The method of proving need not be a vote on the floor of the House.
In this case, the Yang Di-Pertuan Agong adopted an unprecedented measure of interviewing all the Members of Parliament—a tremendously idealistic and conscientious effort on the part of the Yang Di-Pertuan Agong. However, the situation became unstuck because of the constant changing of the minds of the Members of Parliament.

The Right to Dissociate and Re-Associate

Article 10(1)(c) of the Federal Constitution includes the right to dissociate and reassociate. There is a right to diffract and cross the floor. However, Article 10(1)(c) is subject to Article 10(2)(c). Freedom to associate is subject to restriction, one of which is morality. Unfortunately, a narrow view is taken to interpret “morality”, and it does not
include political morality.

“More Likely to Command the Confidence of the Majority of the Members of that House”

Article 43(2)(a) of the Federal Constitution states that “the Yang Di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet a  member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House”. It is wisely drafted because in order for an individual to command the confidence of the majority, there must be a
clear-cut majority of that house.

Interim Government

An interim government is not unconstitutional.

As there cannot be a political vacuum where the Prime Minister has resigned, the Yang Di-Pertuan Agong had to appoint an interim Prime Minister. Whether His Majesty should have appointed the Deputy Prime Minister as Acting Prime Minister or ask the resigning Prime Minister to act as interim Prime Minister, that is a matter for His Majesty. Article 43(2)(a) of the Federal Constitution provides that if during the dissolution, a Prime Minister is to be appointed, he must come from the previous government. As long as the government proves it holds the confidence of the majority as soon as possible, it is not unconstitutional. An interim Prime Minister must not make major decisions, for he is there to hold the fort. He should not appoint or dismiss judges, nor should he make new commitments in terms of economic policy. In Australia, there are clear cut conventional guidelines of what a caretaker Prime Minister can or cannot do, and perhaps it is time for us to evolve such guidelines. The law is silent, but ethics clearly demands that one who does not have the legitimacy of the floor of the house should only keep the day-to-day affairs moving.
Oddly enough, in our situation, Tun Mahathir as interim Prime Minister announced the package for the COVID-19 Outbreak. It can be seen as a non-controversial emergency, as he was dealing with a health emergency and he was in office for some time.
Generally speaking, however, an interim Prime Minsiter should not be making large and long-term commitments as such.

Unity Government

As the Malaysian system is partisan, the idea of a unity government is not contemplated by the Federal Constitution. In our system, there has to be debate, there has to be conflicted opinions, the majority must try to work out a middle path to reconcile conflicting interests. However, to clarify, Professor Shad is supportive of the idea of a government which is as inclusive as possible in terms of race, religion, region, and gender.

The Reliability of a Statutory Declaration

The issue of a statutory declaration lies in its unreliability. There is nothing illegal or invalid about proving the majority of the House through a statutory declaration. The most politically reliable way to determine the majority of the House is to appoint any interim Prime Minister, call an emergency session of the House of Representatives
within 7 to 10 days, and have the interim Prime Minister prove his support on the floor  of the House. However, this way may not be the most workable way if the interim is unable to get a majority.
There is a problem in our system, our structure. Article 43 of the Federal Constitution states that the Prime Minister must command the confidence of the majority of the members of the House, and if that majority shifts or changes, even a vote of confidence may no longer be reliable. Our system is adopted from the English Westminster system,
which presumes a certain amount of political maturity, political ethics and political stability. At this particular moment, Malaysia does not have those traits.

General Election or Minority Government?

To call for a general election is not economically, politically or security-wise desirable at this moment. Therefore, an alternative would be to form a minority government, which is a government that does not have a majority on the floor of the house, but is able to do the consensual tasks, such as passing the budget or other important
legislation. One has to remember that a minority government is implied to be weak, because the Prime Minister has to cobble together in majority to pass a motion and will have to rely on individual Members of Parliament to get that 51%.

Where there is a Successful Vote of No Confidence

Where there is a successful vote of no confidence in the new Prime Minister, but he refuses to resign, the Yang Di-Pertuan Agong may withdraw the appointment. The Federal Constitution does not provide the Yang Di-Pertuan Agong the power to dismiss
an appointed Prime Minister. However, His Majesty may withdraw his appointment and
appoint another individual.

“Royal Prerogative” is a Dangerous Word

Prerogatives are by definition inherent, non-statutory attributes of the monarchy. Generally, the power of the Yang Di-Pertuan Agong to appoint a Prime Minister or to dissolve Parliament is not a prerogative, but a constitutional power. A better suited term in the context of Malaysia is “reserved power”.

Dissolving the House of Representatives

The Yang Di-Pertuan Agong has a clear-cut discretion to refuse the advise of the Prime Minister to dissolve the House of Representatives under Article 40(2)(b) of the Federal Constitution. His Majesty is to use His Majesty’s wisdom and experience to look at the total security and economical system of the country.
However, the Yang Di-Pertuan Agong should not dissolve the House of Representatives on His Majesty’s own accord. This is because it would be bad for democracy and monarchy. Article 40(2)(b) of the Federal Constitution should them be interpreted narrowly to say that the Yang Di-Pertuan Agong has an undrafted discretion to consider several alternatives.

Declaration of Emergency under Article 150 of the Federal Constitution

The power under Article 150 of the Federal Constitution is subject to Article 40(1) of the same. Therefore, as with the power to dissolve the House of Representatives, the power to declare an emergency under Article 150 of the Federal Constitution is said to be exercised on advice and is not a reserved power of the Yang Di-Pertuan Agong.
Should the political climate continue or be at stake, is there a possibility of the Yang Di-Pertuan Agong declaring emergency? Arguably, yes. “Emergency” is defined to not only include war, but also the collapse of a civil government.

Postponement of Parliament Sitting

Memorandums can be submitted to urge the government to revise the postponement. However, ultimately, it is necessary for the Yang Di-Pertuan Agong to order the Speaker to issue a notification to all Members of Parliament to have an emergency session.

The Impact of the English Cherry v Miller Case

An unprecedented scan by the English judiciary, the decision is very significant. However, whether our court will say the same is anyone’s guess. In constitutional and administrative law, there exists the principle of non-justiciability, which means there are certain issues which are best to be resolved by political or other remedies.
These dangerous, difficult theories and political issues are best avoided by the courts. Courts are legal institutions, not political institutions. While there is already a legal challenge on the validity of the appointment of Tan Sri Muhyiddin as Malaysia’s new Prime Minister, it is for the good of the judiciary to reserve judicial independence.

Cleansing the Government of the 1MDB Cases

There is legitimate fear that the accomplishments of the previous government will be reversed or neutralised, and there is fear that the cases made against those accused to be discontinued However, Professor Shad hoped that the new government would ensure that his cabinet is inclusive, competent with technocrats and does not consist
of those prosecuted or has a case hanging over their head.

Two-Party System is the Root of our Problem?

In Malaysia, our Parliamentary system emphasises on political parties and loyalty of the floor. Whether there are two or twenty parties, coalitions are bound to form, and in Malaysia, they are formed based on race, religion and identity politics. Unfortunately, there is no workers’ party or green party.
Around the world, parliamentary democracies have attracted good reforms, but they do not last long. In England, legislation has been passed for there to be a fixed term parliament, where it is for five years, and the only way to overturn this is to have a twothird majority vote from the floor of the House. In Bangladesh, the system was reformed so that once the Prime Minister calls for a dissolution, he must step down, and the  President would appoint a caretaker government consisting of technocrats, retired judges and retired civil servants to steer the country impartially through the election period. Unfortunately, the present government amended to constitution to repeal the reforms in place. Known to have a very vibrant democracy, Nepal used to have a provision that a hung parliament would come into being where no individual could achieve a majority. The faction with the largest number of seats would then get the first bite of the cherry. Certainly, the reforms made by these nations can serve as a
constitutional guidance for Malaysia.
However, adopting such reforms into the Malaysian system will require drastic constitutional amendments, which would involve Federal and State Constitutions. It is possible, but such amendments may be a problem for the basic structure of the Federal Constitution. The judiciary would then be at risk of being accused for determining fundamental issues under political perspectives.

Recommendation of Constitutional Amendments

In order to prohibit the current political issue from emerging again, anti-defection law— anti-party hopping law—is necessary. Of course, there are cases where party hopping was not done out of selfish motives. For instance, where a Member of Parliament genuinely disagrees with their party’s abuse of preventive detention law and wishes to
leave the party. Changing of parties is allowed, but when this happens, such individuals should return to the electorate and be re-elected. If the hopping was done too close to the next election, the individual should vacate his seat and be prohibited from holding a position in the cabinet or any important position in the administration for two years.
This is to prove that the act of party hopping was out of ideology or conscience rather than for a clear political or monetary motive. Still, it would be difficult as such a reform would require a two-third majority to amend and insert an anti-party hopping clause into Article 10(1)(c). Perhaps an interparty majority may be able to achieve that.

Parting Words

The spirit of our constitution in 1957 and 1963 was one of moderation, accommodation, and tolerance to our sentimental product. Professor Shad believes that we have been fortunate; we may not love each other, but we do not hate each other. As mentioned earlier, if what had happened to Malaysia happened elsewhere in Asia or Africa, there
will be a riot—massive demonstrations and killings. Instead, while the drama was unfolding, the Yang Di-Pertuan Agong was distributing McDonald’s and Kentucky Fried Chicken to the reporters waiting outside His Majesty’s gates.
Our constitution is a document of moderation, and in the first decades since her independence, Malaysia was a country of give and take, of intercultural, integration, and interreligious respect. However, in 1969 the bubble burst, and since then we were able to restore certain amount of racial and religious harmony. Sadly, things were no
longer the same, and the country has proceeded towards the wrong direction. While other countries work towards victory, snatching them in the jaws of defeat, we were  already victorious; we already have the necessary ingredients of a developed nation.
However, we went backwards.
Still, Malaysians are a moderate people; Malaysians aim for equality, and leaders of substance do not follow after opinions with guns and rallies of opposition, but with the power of souls. That is the essence. A strong leader is not afraid to say “no, that is not right.” There is awareness among the local youth—in UiTM, in UM—that Article 153 of
the Federal Constitution is being abused by the elites with private agendas. That is the reason why this country is so peaceful and progressive.
Professor Shad is hopeful that the Malaysian youth will make the right sort of differences; that we do not want policies to be based solely on race and religion, that we actually want the government to recognise the importance of uplifting our identities
as “Malaysians”. That is the biggest agenda today—greater interracial, interreligious communities with interreligious tolerance and appreciation of our differences.

Written by
Members of HAKAM Youth
HAKAM Youth is a committee under HAKAM, the National Human Rights Society

Lockdown, lock-in or what? – Law Speak

From the Sundaily

CONFUSION reigns following the dramatic announcement by the prime minister on Monday. Is it a lockdown – meaning people can’t leave their homes? Like a curfew where police will be on the streets to bar people moving on the streets. Or haul up anyone outside their homes.

The object is clear. To limit the movement of people in public places. Essentially to prevent people mixing with others.

Hence all businesses are to close. All government buildings and private premises are to shut down. Schools and universities must shutter their doors.

Travel out of the country is prohibited. And travel into the country strictly regulated. Malaysians who commute daily to Singapore are adversely affected by the travel ban.

There is also a complete ban of gatherings and meetings – including religious congregations.

These measures are introduced under the Prevention and Control of Infectious Diseases Act 1988. And under the Police Act 1967 – which allows the deployment of the police to oversee the implementation and adherence of these measures.

The prime minister has acted under Section 11 of the Infectious Diseases Act to declare the whole of Malaysia as an infected area. This is on the basis that the minister is satisfied that there is an outbreak of an infectious disease in the country or the country is threatened with an epidemic of an infectious disease. This allows him to prescribe the necessary measures to control or prevent the spread of the infectious disease.

The worry about the spread appears real. As at March 8 there were fewer than 100 reported cases of infection of the corona virus. As of Tuesday it had spiked to 673 cases with two deaths, one a 34-year-old and the other a 60-year-old Sarawakian, who had an underlying chronic illness.

These figures may not represent the true state of infections. It is not known how many fail to report; either for fear of being quarantined or because they dismiss the symptoms. The latter understandable as the symptoms mimic other infections such as flu and the like.

The measures require Malaysians returning from overseas to be screened and to self-quarantine for 14 days after arrival. And a complete ban of tourists and foreign visitors. These measures are imposed under Section 6 of the Act “to prevent the introduction of any infectious disease into Malaysia from an infected area”.

To ameliorate the wide reach of these measures, one is allowed to move to get your food and medical supplies. Restaurants can open but only for takeaways (markets, grocery stores, pharmacies and hospitals remain open); also banks and financial institutions will remain open. Premises of public utilities providers – water, electricity, telcos, post and the like – will also remain open.

That’s why this order cannot be categorised as a lockdown or a curfew – as has been implemented in China, Italy and Spain. It is best described as a restriction of movement order.

All other movements are strictly prohibited. So offices cannot be partially shuttered – with a skeleton staff. Nor can business premises such as restaurants operate to provide online services. Hotels too are business premises and must close their doors. Religious places are also off limits to their routine mass services.

Any breach and the Act provides for penalties – of fines and jail terms. That’s where the deployment of the police under the Police Act kicks in.

We are of course not used to such drastic measures. And wonder how they will be enforced. One can easily avoid prosecution if caught travelling by arguing that the movement is to one of these permitted outlets.

So these measures should be viewed as encouraging people to restrict their movements to the bare essentials. And be implemented in a facilitative rather than punitive way. After all, it is only for a test 14-day period.

This will also be a steep learning curve for the public to realise how easily the infection can be spread; and to get them on board to ensure that the infection is not carelessly spread to other unsuspecting innocents. Especially the elderly and the babies. For whom it could be fatal, as the statistics in other countries show.

The objective, said the Ministry of Health, is to break the chain of transmission of Covid-19 among individuals and communities. And to highlight to the public that Covid-19 prevention and control measures must be taken seriously.

We must begin to recognise that each and everyone of us has a critical role to play in curbing this terrible new disease involving a little sacrifice and some inconvenience.

Gurdial, a former law professor, now practises law and is the President of HAKAM.  

Challenging the PM’s appointment – Law Speak

From the Sundaily

TWO critical questions seem to be troubling the public. First, can the appointment of the prime minister by the king be challenged? Second, does such a challenge amount to disrespect for the king and the institution of the monarchy?

Our courts have answered both these questions. Yes, to the first. No, to the second. Let me elaborate.

The Sabah case: Tun Datu Hj Mustapha bin Harun v Tun Datuk Hj Mohamed Adnan and Datuk Joseph Pairin Kitingan No 2

In 1985 the court intervened in a constitutional crisis in Sabah and quashed the appointment of a chief minister. Pairin, whose party had just won the state elections, was expected to be appointed chief minister by the Yang di-Pertua Negeri (YDPN) – equivalent of the sultan of a state; or king in the federal context.

However, at 3.40am on the night the election results were announced, the leaders of two other parties visited the residence of the YDPN and persuaded him to appoint Tun Mustapha as chief minister on the basis that they commanded 22 seats; and with the appointment of an additional six members, who had to be nominated by the YDPN, they would have an overall majority in the state assembly. The YDPN swore in Tun Mustapha as the chief minister at 2.30pm.

Three hours later, the YDPN revoked Tun Mustapha’s appointment. At 8pm he swore in Pairin as chief minister.

Mustapha challenged the validity of his revocation as well as Pairin’s appointment, seeking declarations that he had been validly appointed and was still the chief minister.

Pairin and the YDPN objected – arguing that the court had no jurisdiction because the case concerned the manner of exercise of discretion by the head of state and raised political questions which should be, and had been, dealt with by the legislature. In the interim Pairin had secured a vote of confidence in the state assembly.

The High Court held that the court had jurisdiction. The case involved construction of the federal and state constitutions, and consideration of legal principles; and the legal issues of conspiracy, misrepresentation, fraud and duress – all of which, ruled the court, fall within its jurisdiction and function.

It was not a question of how the YDPN had exercised his discretion – which the court had no jurisdiction to decide.

The Supreme Court upheld the High Court decision.

The Perak case: Datuk Nizar Jamaluddin v Datuk Seri Zambry Abdul Kadir

In 2009, Perak Sultan Raja Azlan Shah refused to dissolve the state assembly upon the request by the then mentri besar Nizar Jamaluddin. Instead of deferring to the state assembly to determine who had the confidence of the majority, the sultan opted to interview the members of the state assembly. His Majesty concluded that Nizar had lost the confidence of a majority of the assembly and asked for his resignation. Nizar was thus ousted without any vote in the assembly.

Nizar brought an action in court to challenge the appointment by the sultan. The High Court decided in Nizar’s favour; but the Court of Appeal, and later the Federal Court, upheld the appointment.

The courts read into the Perak Constitution a conventional power for the sultan to declare the office of MB vacant, without a vote in the assembly. The decision broke “new ground in allowing the ruler considerable latitude, which is not apparent in the constitutional text or in general understandings of constitutional conventions, to reach his own judgment as to the issue of the legislature’s continued confidence in the Head of Government” (Andrew Harding, The Constitution of Malaysia: A Contextual Analysis).

Note that all state constitutions have identical provisions empowering the sultan/YDPN to appoint state MBs. The king also acts under a similar provision in the Federal Constitution: Article 43(2)(a).

This Federal Court decision was approved last year when the High Court rejected Tan Sri Musa Aman’s challenge of the appointment of Datuk Seri Shafie Apdal as chief minister by the YDPN.

Conclusion

Through these decisions, our highest court has established the undoubted right of litigants to challenge the appointment of the prime minister or mentri besar by the ruler. To say that this will denigrate the institution of the monarchy is to misunderstand the power of the courts to decide issues that are legal and constitutional in nature. Else the rule of law, an integral pillar of the basic structure of the Federal Constitution, will be undermined.

One final comment. Courts cannot decide questions that are political in nature. Indeed, most of these cases have a distinct political flavour. Nonetheless, as declared by the UK Supreme Court recently “… although the courts cannot decide political questions, the fact that a legal dispute … arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it. … Many if not most of the constitutional cases in our legal history have been concerned with politics in that sense”: Lady Hale, R (Miller) v The Prime Minister (2019) UKSC 41.

Gurdial, a former law professor, now practises law and President of the National Human Rights Society (HAKAM). 

Transparency the key to trust

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.

Threat by counter groups – Law Speak

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

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

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. 

IRC Report – why the secrecy?

From the Sun Daily

A CRUCIAL expectation of people in voting out the old and ushering in a new government was the promise of participatory politics. Where the voices of the rakyat will be heard and responded to; with accountability of those in power; the abolishment of all arbitrary laws; and the removal of those who had compromised the public trust.

Indeed the PH government responded brilliantly. With the prompt establishment especially of the Institutional Reform Committee (IRC) comprising persons of impeccable integrity.

The IRC sat through endless hours listening to countless voices: from the professional to ordinary persons clustered in groups. It produced, so says the grapevine, a comprehensive report of moving the nation forward in ways considered anathema in the past.

What should have followed was an active debate of the report and ultimate feedback from all and sundry. And the implementation of those recommendations considered doable. On a scale and time-span: immediate, mid-term and long term.

But the IRC report has yet to be released, thwarting a public discussion.

The reason given by no less than the prime minister himself at a recent forum in response to a question from the floor by past Bersih chairperson, Ambiga Sreenevasan (which question received a thunderous audience response) was that there were parties within the ruling coalition that objected to its release.

Who are these parties? What is their reason for this stance? What do they make of their manifesto promise of an inclusive governance system and institutional reforms to implement just that?

The manifesto promised openness in government. That institutions will be established or strengthened to ensure that future governments will have no space to abuse its powers. And the public will be able to contribute to the making of policy; and the actions of government are properly scrutinised and evaluated and decision-makers held accountable. This makes essential disclosure of the report.

Significantly, the PH manifesto promised to revise the Official Secrets Act; and enact a Freedom of Information Act. Promise of a new ethos of governance.

As Lord Bingham head of the UK judiciary remarked in a 2003 court decision (R v Shayler):

“Modern democratic government means government of the people by the people for the people. But there can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments. The business of government is not an activity about which only those professionally engaged are entitled to receive information and express opinions. It is, or should be, a participatory process. But there can be no assurance that government is carried out for the people unless the facts are made known, the issues publicly ventilated. Sometimes, inevitably, those involved in the conduct of government, as in any other walk of life, are guilty of error, incompetence, misbehaviour, dereliction of duty, even dishonesty and malpractice. Those concerned may very strongly wish that the facts relating to such matters are not made public. Publicity may reflect discredit on them or their predecessors. It may embarrass the authorities. It may impede the process of administration. Experience however shows, in this country and elsewhere, that publicity is a powerful disinfectant. Where abuses are exposed, they can be remedied. Even where abuses have already been remedied, the public may be entitled to know that they occurred.”

Secrecy begets arbitrariness and misgovernment. It deprives the electorate of information about the processes of government. As the past reveals: an AG dismissed, investigative committees and other institutions scuttled or undermined. So, processes “where they are bad remain bad and get worse in the dark”.

When the 1980s scandal surrounding the massive losses of Bank Bumiputra Finance in Hong Kong emerged, the Inquiry Committee Report was not made public, raising allegations of whitewash and complicity. Given that Bank Bumi is government-owned and monitored by the Ministry of Finance and Bank Negara. It took massive public reaction and even a court action before the report was finally released.

Of course for cogent reasons (national security and the like) specific parts can be redacted.

The electorate is now savvy and reacts unkindly to what it perceives as cover-ups or broken or delayed promises. Secrecy fans these perceptions. The Blair government’s concealment of proper information on weapons of mass destruction led to Britain’s participation in the Iraq war. For which several young British soldiers paid dearly with their lives.

So a timely reminder. “The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them”: Patrick Henry, renowned American colonial revolutionary.

Gurdial a former law professor is currently president of Hakam, the national Human Rights Society.

Recent Myanmar/Bangladesh ICC decision reinforces flaws in alleged academics’ presentation to Rulers – Lim Wei Jiet 

From Malay Mail Online

Yesterday, the International Criminal Court’s Pre-Trial Chamber III announced its “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar,” whereby the ICC authorised the Prosecutor to commence investigations into crimes in Myanmar/Bangladesh.

For context, under Article 13 of the Rome Statute, there are 3 ways to trigger the ICC’s jurisdiction in respect of the crimes listed in Article 5 (genocide, crimes against humanity, war crimes & the crimes of aggression):

(a) a referral by a State Party to the Prosecutor;

(b) a referral by the United Nations Security Council to the Prosecutor; and

(c) the Prosecutor itself initiates an investigation (investigation proprio motu).

In this instance, the third method was triggered – the Prosecutor sought to initiate an investigation proprio motu. It is a requirement under Article 15 of the Rome Statute for the Prosecutor to seek authorisation from the ICC beforehand.

At this stage, the ICC needs to consider two factors in order to decide whether authorization should be given:

(i) if the case appears to fall within the jurisdiction of the Court; and

(ii) if there is a “reasonable basis” to proceed with an investigation

The ICC found that both factors have been fufliled. Consequently, the ICC authorised the Prosecutor to commence investigation propio motu.

While the ICC decision must be celebrated, it also reinforces the flaws contained in the alleged academic presentation to the Council of Rulers dated 2 nd April 2019 (I have previously critiqued on the presentation here.  The Malaysian Government withdrew from the Rome Statute on April 5, 2019 The presentation was leaked to the public by a student activist on April 7, 2019.

The Crime of ‘Deportation’

The alleged academic presentation to the Council of Rulers boldly asserts as follows: “Malaysia yang tidak terjejas apa-apa dengan jenayah ini dan tidak terkat dengan krisis Rohingya di Myanmar tidak boleh memaksa ICC untuk mengambil tindakan ke atas Myanmar walaupun selepas menjadi ahil statut Rom. Hanya Myanmar sahaja yang boleh membawa kes ini ke ICC dengan sendirinya oleh kerana jenayah berlaku di dalam wilayahnya. Tetapi kemungkinan kes ini dibawa oleh Myanmar ke ICC adalah sangat rendah…”

The first flaw: This statement is based on an erroneous assumption that crimes were conducted exclusively within the borders of Myanmar (a non-State party) and not within the borders of any State party, and hence no State party can refer the matter to the ICC. In other words, there is no territorial link.

The academics completely failed to take into account the crime of “deportation,” which is a “crime against humanity” under Article 7(d) of the Rome Statute. The crime of “deportation” happens when the perpetrator deports without grounds persons to another State or location, by expulsion or other coercive acts.

The ICC’s recent decision, in essence, held that it has territorial jurisdiction over Myanmar’s alleged “deportation” of Rohingya people because the victims crossed into the borders of Bangladesh (a State Party) — the crime may have began in Myanmar but was “completed” when the victims entered Bangladesh.

At the outset, whenever a crime of “deportation” occurs or is completed within the territory of a State party, then any State party to the Rome Statute can refer the matter to the Prosecutor for further action (see Article 14).

This means that, even if Bangladesh as a State party does not refer the matter to the Prosecutor, Malaysia as a State party can refer the matter to the Prosecutor. It is a symbolic fact that all States have an interest in the repression of international crimes.

But even if we accept the academics’ line of reasoning that a State party can only make a reference if a crime occurs within its territory, there is good ground to believe — based on the ICC’s recent decision — that Malaysia does indeed have territorial link to the crime of “deportation” of Rohingya people.

Tens of thousands of Rohingya people have since crossed by boats into Malaysian territory and have remained in our borders for refuge. Tun Dr Mahathir Mohamad confirmed in his speech to the United Nation’s General Assembly on September 25, 2019 that “we are also hosting close to 100,000 registered Rohingya refugees. There are many more unregistered. While this may seem like a small number compared to those in Bangladesh, plenty of resources have been dedicated to allow them a decent life while they await relocation to a third country.”

In other words, if Malaysia ratifies the Rome Statute, there is a solid case to argue that it can refer the matter directly to the Prosecutor under Article 13(a) to trigger a case for the crime of “aggression” by Myanmar against the Rohingya people. The academics’ views that Malaysia is “tidak terjejas” and cannot make a difference to the Rohingya people before the ICC is hence fundamentally wrong.

The Complementarity Principle

The second flaw of the alleged academic presentation is when they made this statement: “Di dalam konteks Malaysia, tafsiran “tidak mahu atau tidak mampu” untuk menyiasat atau mendakwa hanyalah berdasarkan keputusan Pendakwa ICC semata-mata.”

This is highly problematic from the onset. Article 17 of the Rome Statute clearly provides that it is the ICC — and not the Prosecutor — which decides whether the “unable or unwilling” principle has been fulfilled.

The ICC noted that Myanmar has thus far not raised any objections to the admissibility of this case on the complementarity principle, and said that it may receive such objections in the future and will decide accordingly. The ICC in its recent judgement reaffirms that the ICC, not the Prosecutor, is the sole adjudicator on whether the “unable or unwilling” (“tidak mahu atau tidak mampu”) principle is complied with (see para 115-117).

The impression given by the academics if Malaysia is a State party, it may be at the mercy of a biased Prosecutor who may unilaterally decide on whether our local criminal justice system has been able and willing to prosecute Rome Statute crimes. But that is not the case at all — that decision lies ultimately on a panel of independent ICC judges who will give parties a right to be heard.

Conclusion

One must recall that the abovementioned ICC’s recent decision regarding jurisdiction in respect of the crime of “deportation” and the complementarity principle are not novel. They are trite principles in international law — the ICC’s recent decision merely reinforced the same.

In fact, the ICC’s Pre-Trial Chamber I decision dated September 6, 2018 on “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute” decided on these same issues — many months before the alleged

academic presentation dated April 2, 2019.

It is deeply unfortunate and saddening that the abovementioned perspectives were not brought to the attention of the powers-that-be, particularly when ratification of the Rome Statute was such an important foreign policy agenda for Malaysia.

* Lim Wei Jiet is a constitutional lawyer and secretary-general of the National Human Rights Society (Hakam).

 

Pastor Koh and Amri: 1000 days of disappearance

The following speech was given by HAKAM President, Dato’ Dr. Gurdial Singh Nijar, at the memorial held for the 1000th day of Pastor Koh and Amri Che Mat disappearance, on 16th November 2019.

Pastor Raymond Koh, and Amri Che Mat.

1000 days of disappearance

This event marks one of the most tragic developments in the law and order and governance history of the country. It has introduced a word in our vocabulary that was completely alien to us. The word: “enforced disappearance”. Even lawyers are slowly coming to terms with what it really encompasses. Stripped of legalese it means that the State (through any of its agencies) abducts a person and makes him disappear.

What is this function about? It is a reminder – a stark reminder – of how low we have spiralled down into a terrible abyss in our law and order framework. It mars the governance and Rule of Law ethos that New Malaysia is seeking to establish as part of its reform agenda.

Let me recount some significant milestones and events in the incidents.

  1. There was a certain amount of inertia by the authorities when the initial disappearance was reported on the same day shortly by a witness to the abduction – a law chambering person Roshan. Only the strenuous efforts of the children Esther and Jonathan yielded the smoking gun – a video that showed a 50-second professionally-executed abduction operation by a convoy of 7 vehicles – replete with 15 or so masked baclava clad personnel. And in the morning in a well-known residential area.

 

  1. The follow up seemed to lack the rigour and robustness that our special branch and police have a reputation for. Each time the investigations ended in an un-penetrate-able blank wall.

 

  1. To its credit, it was SUHAKAM that took up the cudgels to initiate hearings into the inexplicable disappearances of our fellow human beings.

 

  1. The hearings were characterised by some extraordinary events. The more significant ones:

 

  1. Early on in the hearing, there was a threat to open investigation papers against the lawyers for misleading the enquiry into implicating the police. This ended with an apology by the police when it was established that the alleged misleading evidence was an extract from the webpage of the police.
  2. Midway through the hearing, at a critical stage as evidence was mounting showing complicity, the then IGP issued a letter to say that SUHAKAM cease the hearing as they had now found a person – one Lam Chang Nam – which their investigations showed had kidnapped the good Pastor. Along with several others at large. This letter was on 15 January 2018. The SUHAKAM Act does say that once criminal proceedings commence its hearings and proceedings should cease.
  3. What was remarkable about this dramatic turn of events was that high police officials had testified earlier on oath that the special task force had established that Lam was a liar who was trying to extort money from the family by falsely alleging that he had information where to find the Pastor. And was being prosecuted for that.
  4. Former and then IGP Tan Sri Khalid said that Lam was not involved in the abduction. And that the abduction was tied up with some group in Thailand.
  5. It took sometime but we successfully convinced SUHAKAM to continue with the enquiry. On the basis that the charge against Lam and the issue of enforced disappearance were different. The latter was about whether or not the state (or any agency) was involved in the abduction, regardless of who had carried it out. SUHAKAM delivered a comprehensive and remarkably lucid judgment on this point.
  6. This charge against Lam: There is an incredulous paucity of information on the pace this case against Lam is proceeding. And a distinct lack of publicity. He is charged under section 365 of the Penal Code, which reads: Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine. This implies that the police investigations show that Lam has secretly confined the person. What and where?

The Findings

  1. SUHAKAM found that:

 

  1. Both Amri and Pastor Koh were victims of enforced disappearance;
  2. The abduction was executed by or with the support of state agents -the Special Branch;
  3. Both were targeted for allegedly being anti-Islam.

The follow-up

  1. SUHAKAM’s long and thorough inquiry had established the ‘what’. And ‘how’. What remained was the ‘who’; who authorised it and who carried it out.

 

  1. The logical follow-up should have been to carry out an independent and thorough investigation focused on who perpetrated it and flushing out the culprits; and taking appropriate action.

 

  1. However, the government at first dithered, then appointed a taskforce whose membership raised grave concerns; and finally after the removal and resignation of some members, the taskforce seems to be on track to conduct and conclude their work.

 

  1. Nonetheless there are feedbacks of disquieting features as to the way the inquiry is being conducted. As a preliminary observation there seems to be no publicity as to its proceedings. What happened to the requirement for transparency and accountability?

As to other facets – prudence being the better part of valour – we need not air here as there could well be potential legal redress contemplated if there is dissatisfaction with the process and outcome of the taskforce in its investigation into the clear and damning findings of SUHAKAM.

Conclusion

1000 days of an unsolved clear crime is a grave blot to any functioning democracy. The government must leave no stone unturned to get to the bottom of this and restore Pastor Koh and Amri to the fold of his family and friends – which include all of us gathered here today.

While I have the floor, may I also add that as President of HAKAM, the National Human Rights Society (incidentally founded by our first and third Prime Ministers), and on its behalf we add our voice and commitment to the quest for the search for truth and justice in maintaining and upholding human rights; which includes our utter abhorrence and condemnation of this crime of ‘enforced disappearance’.

May this 1000 days’ event trigger a fresh resolve and impetus to banish from our body politic and country the scourge represented by the enforced disappearance of Pastor Koh and Amri.

 

Gurdial Singh Nijar (Dato’, Dr.)

16 November 2019