Gurdial Singh Nijar

Transparency the key to trust

Coordinator

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

Coordinator

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. 

All within reach of the law – Law Speak

Coordinator

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. 

AG’s appointment: Lessons learnt — Gurdial Singh Nijar

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Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

AS THE saying goes, the greater the storm, the brighter the rainbow. Smiling colours beamed when the Yang di-Pertuan Agong finally consented to the appointment of lawyer Tommy Thomas as the 10th attorney-general of Malaysia/Federation of Malaya. After a cliffhanger thriller to the finish – as royalty prevaricated in the face of the prime minister’s insistence that the government’s choice was not negotiable.

The short announcement on behalf of His Majesty alluded to the King’s “disappointment and worry about inaccurate and negative media reports of late which could threaten peace and harmony in the country”. The country – barely over the euphoria of a change of government – heaved a welcome sigh of relief. A potential constitutional crisis saved from the brink.

Are there lessons to be drawn from this episode? Several, I believe.

Read more →

The election money game — Gurdial Singh Nijar

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Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

THE election money game is on! Promises of goodies if a party is voted in, such as a long overdue road or a kampung bridge or the abolition of tolls, which are often accompanied by open threats that all this will be denied if the votes do not materialise.

This in flagrant concealment of the stark truth that, in any event, the money and development will come from the public taxpayer – not the personal coffers of the party or its leader.

There is a law called the Election Offences Act. It prescribes what can or cannot be done. The Election Commission (EC) oversees the election to make sure that all is fair and legal. No undue advantage. No bribery. No undue influence. No use of government machinery. No money spent beyond the permitted amount – RM100,000 for a state seat; and RM200,000 for a parliamentary seat.

Read more →

Not in the public interest — Gurdial Singh Nijar

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Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

A CRYPTICALLY-TITLED Anti-Fake News law is about to be enacted shortly if passed by Parliament. The outcry against it stems from its overbroad scope.

First, it goes beyond “news”. Its coverage is extraordinarily overreaching. It covers everything spoken, written, drawn, audio and visual – and the catch-all: “in any other form”. It covers words and ideas, too. It extends to publications and reproductions; and anything in digital or electronic form and replications of these. Every information is roped in – regardless of its scientific, literary or artistic value. Nothing is left out. Read more →

CJ’s appointment challenged — Gurdial Singh Nijar

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Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

LAST week a larger than normal number of Federal Court judges (seven) heard a case unprecedented in Malaysian legal history. The Malaysian Bar challenging the constitutional validity of the appointment of the chief justice (CJ) and the president of the Court of Appeal (PCA).

The Bar contended as follows. The Constitution explicitly states that the CJ’s term of office is to be 66 years plus six months. After that he must retire. Only a person appointed by the CJ as an additional judge can hold office beyond this prescribed period. Such appointment is expressly provided for in the Constitution. There is no extension allowed for the CJ’s term. So his term ends in accord with the constitutionally-prescribed tenure period.

But, argued the Bar, the CJ’s term was extended through a rather convoluted and unconstitutional process.

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Election Commission and the courts — Gurdial Singh Nijar

Hakam_intern2

Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

ON March 2 the Court of Appeal dismissed an application by the Selangor government to stay all proceedings of the Election Commission (EC) until its appeal on the constitutionality of the re-delineation exercise was heard in some three weeks’ time.

The Selangor government had filed for judicial review of the EC’s redrawing of boundaries exercise because it said:
» The EC had not followed the principles on which this could be done under the (Federal) Constitution;
» In carrying out the exercise, the EC had not complied with the mandatory procedure for the process as prescribed by the constitution;
» It had used a flawed electoral roll; and
» There were names of voters on the roll with no corresponding addresses.

All rather serious allegations which could render the EC’s exercise fatally unconstitutional. Read more →

Review of the Indira Gandhi decision? — Gurdial Singh Nijar

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Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

HARDLY is the ink dry on the Federal Court’s Indira Gandhi decision, a group of NGOs have announced that they will file an application for the Federal Court to review its decision. The public seems intrigued. After all, it was a final decision of the highest court of the land. What is this power of review? When can it be exercised?

Does the power exist?

Yes, the Federal Court does have an inherent power to review its own decision. It has a wide discretion to do so. But it is an exceptional power which is sparingly exercised. Read more →