A ten-point non-solution

It would be an understatement to say that the pronouncement by the prime minister yesterday that the 10-point solution to the ‘Allah’ issue must be subject to state laws comes as a huge disappointment to those hoping that he would exhibit bold and distinct leadership in this matter.

So that we are all clear as to what Najib Razak has done, let us look at the specific wording of point no 9 of the 10-point solution:

“Beyond the Bible issue, the government wishes to reiterate its commitment to work with the Christian groups and all the different religious groups in order to address interreligious issues and work towards the fulfilment of all religious aspirations in accordance with the constitution, taking into account the other relevant laws of the country.

“In order to bring urgency to this work, in my capacity as the prime minister, I will meet the representatives of the Christian Federation of Malaysia (CFM) soon to discuss the way forward.”

Note that point no 9 starts with the words “Beyond the Bible issue”. This means that what follows in point no 9 is intended to cover other inter-religious issues apart from the immediate issue of the importation, printing, publication and distribution of the Bible in Bahasa Malaysia and Bahasa Indonesia, which would have used the word ‘Allah’ for God. These would have been dealt with in points no 1 to no 8. The meaning and intent of the words are very clear.

For the prime minister to now suggest that the reference to “other relevant laws of the country” meant that the 10-point solution was always intended to be subject to the various state enactments to restrict and control the propagation of any religious doctrine or belief among persons professing the religion of Islam is to fly in the face of the logic of the wording of the 10-point solution.

It is, with respect, a pure afterthought.

A non-solution

If it were not, then the situation is actually far worse. It would mean that the government had not a single iota of sincerity when it offered the 10-point solution as a “solution”. It would have known then that such a “solution” would not prevent state religious authorities from raiding premises and seizing copies of the Bible in Bahasa Malaysia, Bahasa Indonesia or Bahasa Iban.

So the bibles would on the one hand cease to be impounded by the federal authorities, only for it on the other hand to be confiscated by the state authorities. If that was the idea behind a “solution”, then it was no solution at all.

After all, the law in this regard has not changed from March/April 2011, when the 10-point solution was being crafted. It should not be forgotten that the 5,100 bibles impounded since March 2009 had been stuck in Port Klang, in the state of Selangor no less. The law in Selangor should therefore have been of primary consideration.

Given that the 1988 Selangor enactment was in full force and effect at that point in time, for the cabinet to have crafted the 10-point solution using the words that it did must either be evidence of a huge failure on their part to appreciate the full legal implications of their proposed remedy, or a clear example of an intention to deceive and defraud the Christian community in Malaysia.

It is uncomfortable for one to think that one’s government is intentionally out to hoodwink its own people, in this case the Christian community in Malaysia. Which is why it is suggested that the prime minister’s statement is nothing but a convenient afterthought that he has been advised to believe gives him a way out of his present predicament.

It does not.

The prime minister has yet to clearly confront his sworn duty and responsibility to protect and defend the twin freedoms of expression and religion of non-Muslim communities in Malaysia, enshrined in the Federal Constitution.

Apart from the rights of Bumiputera Christians (who comprise 64 percent of the Christian community throughout Malaysia and who live in Semenanjung, Sabah and Sarawak) who use Bahasa Malaysia as their language of choice to worship God, there are also the rights of other Bahasa Malaysia-speaking Christian congregations, and the rights of the Sikh community throughout Malaysia. All refer to God as “Allah”.

The prime minister has also seemingly failed to be advised as to the true meaning and purport of Article 11(4) of the Federal Constitution. The right of states to “control” and “restrict” (the Federal Constitution does not use the word “prohibit”) is one that is directed at “the propagation of any religious doctrine or belief among persons professing the religion of Islam”.

The framers of our Federal Constitution were clear: it is not about the mere use of words and phrases. Even Section 9 of the Selangor enactment which criminalises the use of 25 words and 10 phrases places their usage in four particular contexts, and is not an outright ban on their use.

Nit picking over words

The prime minister has ill-advisedly ignored these small but significant legal niceties and instead rushed to embrace the false “solution” to his present political predicament provided by a calculated misreading and misinterpretation of point no 9 of the 10-point solution. Namely, that it is all up to the states.

He has ignored the opinion given by his own attorney-general, and weakly reiterated his support of the 10-point solution. He is quick to point out that the states of Sabah and Sarawak, which do not have such an enactment as Selangor, are not affected. But he totally misses the point that Sabahan and Sarawakian Christians are.

Sadly, like a “bounced” cheque, the prime minister’s so-called 10-point solution of April 2011 when applied has now come to be seen as no solution at all. By resorting to what can only be called ‘nit picking’ over words, he has shown to all that the trust bank is empty and his account is lacking of credit and he of credibility.

But if ‘nit picking’ is to be the preferred method of the day, what then should we make of point no 6 of the 10-point solution:

“In the spirit of 1Malaysia and recognising that many people travel between Sabah and Sarawak and Peninsular Malaysia, there should be no prohibitions and restrictions for people who bring along their bibles and Christian materials on such travel.”

Would “Christian materials” cover a church newspaper?

(ANDREW KHOO is co-chairperson of the Human Rights Committee of the Bar Council Malaysia)

Safe tear gas?

The Royal Malaysia Police (PDRM) are to be congratulated for complying with international standards.

As reported in Star yesterday, the PDRM’s Logistics Department (Weaponry) assistant chief director Syed Mustafa Raja Syed Nordin stated that the tear gas used to disperse participants of the Bersih 3.0 assembly on April 28 was “safe” and “complied with international standards”.

This must come as a great relief to the many who were on the receiving end of that tear gas, who, (unlike a comment once made by former US president Bill Clinton), may not have smoked it but who certainly inhaled the tear gas.

No expense was spared in order to ensure that only “international standard” tear gas was utilised, manufactured in the US, Canada and Switzerland.

Indeed, Syed Mustafa is reported to have made reference to the fact that the tear gas grenades, tear gas canisters, liquid eye irritants and pepper spray, all of which were deployed on April 28, had complied “with international standards set by the United Nations”. However he does not appear to have clarified to which particular UN standard he was referring.

It certainly could not have been the Code of Conduct for Law Enforcement Officials, which was adopted by the UN General Assembly via Resolution 34/169 of Dec 17, 1979:

– Article 2 states: In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.

– Article 3 states: Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.

– Article 5 states: No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment.

Torture has been defined in the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – itself adopted by the UN General Assembly via Resolution 3452 of Dec 9, 1975 – as ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons’.

Indeed, as Article 6 of the Code of Conduct states: Law enforcement officials shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required.’ In this regard we should be comforted in knowing that the Malaysian government has taken medical advice and has been assured that the tear gas is not injurious to our health.

In Article 8, law enforcement officials are enjoined to ‘respect the law and the present Code. They shall also, to the best of their capability, prevent and rigorously oppose any violations of them.’

The commentary to Article 8 states: (I)n some countries, the mass media may be regarded as performing complaint review functions…. (l)aw enforcement officials may, therefore, be justified if, as a last resort and in accordance with the laws and customs of their own countries and with the provisions of Article 4 of the present Code, they bring violations to the attention of public opinion through the mass media.

As we all know, rather than using the mass media to bring violations by law enforcement officials during the Bersih 3.0 assembly to the attention of public opinion, the mass media was itself violated by law enforcement officials. Allegedly.

These constitute one set of international standards.

Another would be the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which were adopted in September 1990. Could Syed Mustafa have been referring to those instead?

Paragraph 3 states: The development and deployment of non-lethal incapacitating weapons should be carefully evaluated in order to minimise the risk of endangering uninvolved persons, and the use of such weapons should be carefully controlled.

Paragraph 4 states: Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.

Paragraph 5 states: Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:

(a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;

(b) Minimise damage and injury, and respect and preserve human life;

(c) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment;

(d) Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment.

Paragraph 7 states: Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.

If these were the kind of “international standards” that Syed Mustafa meant and to which the PDRM adhered as part of its Standard Operating Procedures, the outcome of the Bersih 3.0 assembly would have been very different. As it is, there is confusion between the home minister and the inspector-general of police as to what exactly are the PDRM’s Standard Operating Procedures.

Paragraphs 23-26 of the Basic Principles are also instructive:

23. Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.

24. Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use.

26. Obedience to superior orders shall be no defence if law enforcement officials knew that an order to use force and firearms resulting in the death or serious injury of a person was manifestly unlawful and had a reasonable opportunity to refuse to follow it. In any case, responsibility also rests on the superiors who gave the unlawful orders.

Malaysian has until today chosen not to accede to the International Covenant on Civil and Political Rights (entered into force in 1976), the International Covenant on Economic, Social and Cultural Rights (entered into force in 1976), the International Convention on the Elimination of All Forms of Racial Discrimination (entered into force in 1969) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (entered into force in 1987).

Yet, it found time in May 2000 to accede to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (entered into force in 1997), and to bring the provisions of this convention into law.

At least we the rakyat can now see the priority and importance that the government accords to human rights in Malaysia. And we can rest happy knowing that the use of tear gas is not prohibited by both international and Malaysian law.

(ANDREW KHOO, an advocate and solicitor, is a member of the Bersih steering committee.)

Can justice be all things for all purposes?

On 27 July 2010 the Chief Justice of Malaysia, Tun Dato’ Seri Zaki Tun Azmi, received a standing ovation from participants of the 21st Conference of the Presidents of Law Associations in Asia (POLA) at the end of his talk entitled “The Malaysian Judiciary, Performance, Achievement & Future Planning”. In a presentation lasting some 90 minutes including a question and answer session, the Chief Justice showed approximately 70 slides detailing statistics of the practical results of changes that he had introduced vis-à-vis the administration of justice in Malaysia.

The Chief Justice identified the main problem as being that of the backlog of cases in the High Court. He highlighted a 52.8% reduction in pending civil cases in the High Courts between 31 December 2008 and the present; a 25.6% reduction over the same period for criminal cases. He said that this reduction had been achieved through a combination of 15 measures: stocktaking and rearranging of files; increasing the number of judges; a tracking system/case management; e-court, namely case management system (CMS), queue management system (QMS) and court recording and transcribing system (CRT); appointment of managing judges; strict granting of postponements; spot checks/surprise visits to courts; mediation; judicial training and seminars/workshops; better utilisation of judicial time; close monitoring from the top management; establishment of specialised courts; regular meetings with, and support of, the Bar and the Attorney General; electronic filing and disposal of cases; and amendments to relevant legislation.

Among other things, the Chief Justice proudly displayed his circular on “Last Minute Postponements” for all to see. He stated that it was unfair to have the blame for postponement imposed solely on the courts. In order to transform this inaccurate perception, he urged judges and judicial officers to be strict in granting last-minute postponements without reasonable notice. Granting postponements was a judicial discretion, and he advised them to exercise that judicial discretion wisely. As for close monitoring by top management, he spoke of receiving daily reports, of setting key performance indicators, and of publishing figures on the disposal of cases amongst judges and judicial officers. He also spoke about administrative improvements that had been made, especially with regard to extracting and executing orders, hearing of joint petitions for divorces and the quick attending to complaints.

Despite repeated dialogues with the CJ and the senior judiciary, there are still cases where postponements are denied even when there are good reasons. Indeed a directive from the CJ to judges and judicial officers to grant adjournments in view of the recently-held 15th Malaysian Law Conference was totally ignored by one judge and the lawyer in that case, who was moderating one of the sessions, had to complete his hearing before attending. Lawyers also face the fixing of hearing dates that do not correspond with their available dates, despite these being made known in advance to the judge. The CJ has been somewhat unsympathetic in these instances, saying that lawyers will just have to find another lawyer to attend. He has stated in the past his view that lawyers spread themselves too thinly and take up more cases than they can practically manage. These multiple cases then end up being fixed for hearing on the same days, hence the need for adjournments. Apparently having another case fixed for hearing in another court is not an acceptable reason for applying for an adjournment, and judges and judicial officers have been taken to task for exercising their discretion for this reason. His solution: sole proprietorships and small law firms should merge, so that a firm would have more lawyers at its disposal to attend to the various cases. With Malaysian legal fees being comparatively very low, the issue of lawyers needing to earn a decent wage is conveniently ignored.

The recently-approved amendments to the Subordinate Courts Act 1964, which the CJ also mentioned in his briefing, will see cases with a monetary value of RM1 million or less being transferred to the subordinate courts. This is a pre-emptive move not to clog the superior courts with relatively minor cases in the future, and reduce the chances of a backlog building up once again. The problem is that the threshold of RM1 million is fairly high, and will include a considerable number of complex cases. Allowing officers of the Judicial and Legal Service, to which Sessions Court judges and magistrates belong, to decide these cases rather than High Court judges may impose an undue burden on the former. They will now also have the power and responsibility of deciding on interim issues connected with such cases, for example on injunctions. There is some concern amongst members of the legal profession that non-High Court judges would not have sufficient experience and expertise to decide on such matters. So while on the one hand access to the courts may be improved, the question of access to a just outcome remains wide open.

This is also true of the case of night courts. While this has been available for some time, the uptake has not been good. The initial driving idea behind these was that parties could opt to have their cases heard after hours, thus reducing the burden on litigants to make their days available. However we seem to have misunderstood the rationale for night courts. Night courts are more suited to the hearing of preliminary issues in a criminal matter especially those which arise immediately upon arrest, such as remand hearings and bail applications. This is especially true of those arrested after regular court hours, the intent being that accused persons are brought before a magistrate soon after they are arrested and their cases dealt with quickly. The Government Transformation Programme (GTP) has now stated that the night courts will be used to address the problem of street crime. That will be good. Yet the predisposition of our police force is to have alleged offenders kept in detention for as long as legally permissible, “pending investigations”. Night courts would only serve to frustrate such predispositions and hinder the way in which police investigations are carried out in this country. Further, night courts would work best when there is a public defender system or legal aid available at all night courts, to protect the rights of accused persons.

The latest pro-efficiency scheme by the GTP is to attempt to reduce street crime by marking street crime cases with a “J” prefix and fast-tracking them through the court process; speedy justice for snatch thieves and “Mat Rempit” and their ilk. But will this be achieved at the cost of compromising the civil liberties of an accused person? And what message does this approach send to the public at large, that some crimes are more deserving of a quick hearing than others? Will it be right to delay trials for some in order to expedite trials for others?

While the government’s aim of reducing street crime is laudable, the use of the courts to achieve the government’s policy goal of reducing crime and thus looking successful on law and order issues in time for the next election risks blurring the constitutionally separate roles of the judiciary and the executive.

In conclusion, no one is against efficiencies in the system of administration of justice. To do so would be like taking exception to motherhood and apple pie (or its suitable Malaysian equivalent). But when the courts are turned into an extension of the executive and become like any other government department forced to adhere to the drive towards achieving pre-determined performance targets, then there is great risk that justice and fairness are being compromised.

(Andrew Khoo is a lawyer in private practice. The views expressed are entirely his own. A version of this article, under the title “Delivering justice speedily”, first appeared in The Sun on 18 August 2010.)

No freedom flotilla for refugees in M’sia?

In the Dewan Rakyat in Kuala Lumpur on Monday Jun 7, 2010, members on both sides of the political aisle joined to condemn Israel’s attack on a Gaza-bound humanitarian aid flotilla for the support and assistance of the Palestinians.

In a crowded hotel function room in Kuala Lumpur on Tuesday Jun 8, a Palestinian refugee addressed a forum on the situation of refugees from non-South East Asian countries currently living in Malaysia and decried the lack of any form of humanitarian support and assistance for people like himself and his fellow Palestinian refugees in Malaysia.

Because the Malaysian Government has so far refused to sign the 1951 Convention on the Status of Refugees and its 1967 Protocol, people like him cannot even be officially recognised as refugees.

They have no legal status in Malaysia. They have no identification papers. They cannot work. They have to scrape together whatever they can in order to feed and clothe themselves and their families.

They live in constant fear of harassment by the police, of arrest and detention by immigration authorities and Rela personnel, and separation from their families, friends and informal support structures.

In the Dewan Rakyat in Kuala Lumpur on Monday Jun 7, the prime minister tabled a 15-point motion as part of the condemnation of Israel. Under point No. 4 he said Malaysia would “cooperate with member countries of the Organisation of the Islamic Conference (OIC), Non-Aligned Movement (NAM), Arab League and like-minded nations to uphold the principles of international law, including human rights laws, international humanitarian laws and the United Nations Charter, in handling the humanitarian crisis in Gaza”.

We have a humanitarian crisis at our doorsteps. As at the end of April 2010 the United Nations High Commission for Refugees had registered 87,700 refugees and asylum-seekers in Malaysia. 81,200 are from Burma, while 6,500 are from Sri Lanka, Somalia, Iraq, Afghanistan and other parts of the world including Palestine.

Our refusal to recognise their refugee status, to provide them with humanitarian assistance to feed and clothe them, to give them a chance to work and to educate their children, all these are breaches of principles of international law, including human rights laws, international humanitarian laws and the United Nations Charter.

Charity does not start at home

During the cruel and inhumane attack by the Israelis on the Gaza-bound humanitarian aid flotilla, 9 men of Turkish nationality were killed. Their deaths are indeed a tragedy. On Wednesday 9 June 2010, the wife of the prime minister of Malaysia handed over financial contributions to the Turkish Ambassador to be passed on to the families of those who had died. Each family received US$5,000 (RM16,400).

In 2009 at least 14 foreign nationals incarcerated in our various immigration detention centres died. Their families have not received a single sen from the Malaysian Government, let alone any word of commiseration or messages of condolence.

Under point No. 5 of the motion, the prime minister called “on like-minded countries to bring a resolution to the United Nations Security Council to refer the Zionist regime’s attack (on the aid ship) to the International Criminal Court (ICC)”. Under point No. 7 of the motion, the prime minister proposed “that Turkey consider action most under the Rome Statute of the International Criminal Court (ICC)”.

Malaysia is neither a signatory to the Rome Statute nor a member of the International Criminal Court. While Malaysia signed the Final Act which created the International Criminal Court in 1998, she has steadfastly refrained from becoming a member, preferring instead to observe the development and workings of the International Criminal Court from the sidelines, and to adopt a “wait and see” approach.

And finally, starting from around 2006, the Malaysian Government has called upon the government of the United States of America, an ardent supporter of Israel, to shut down Guantanamo Bay because of the breaches of human rights and mistreatment of detainees perpetrated there and the fact that the continued detention of individuals was a breach of international laws and human rights laws.

Malaysia still maintains a maximum security detention centre in Kamunting to incarcerate people detained under the Internal Security Act.

The Act has been in place since 1960. There are currently 15 people under detention, from Bangladesh, Pakistan, Singapore, Sri Lanka, Thailand and Malaysia, for offences ranging from alleged membership of Jemaah Islamiah, to forging of documents and human trafficking. We have laws dealing with membership of proscribed organisations, with forging of documents, and with human trafficking.

However none of these detainees has been charged in a court of law or found guilty of any offence. Their continued detention and denial of due process is a breach of international laws and human rights laws.

Malaysia is not being asked not to speak up or to speak out at an international level. She has every right to do so, and also every responsibility to do so, as a member of the international community. After all, she is a member of the United Nations Human Rights Council.

As a member she is mandated to uphold, protect and defend human rights and to speak out against breaches of human rights wherever they occur. All that is being asked is that she adopts the same resolute, determined and pro-active approach in Malaysia as she is pursuing overseas.

Malaysia must speak with one voice, both at home as well as abroad.

ANDREW KHOO is chair of the Human Rights Committee of Bar Council Malaysia, but writes here in his personal capacity. This article is published in Malaysiakini and is reproduced here with permission.

Government and Police must be Serious about Protecting Human Rights and Ending Abuse of Police Powers

After hearing 27 (15 civilians, 12 police) witnesses in the course of hearings which first began on 14 August 2009 and finally concluded on 20 March 2010, the Malaysian Human Rights Commission’s Panel of Inquiry into the arrest and detention of the 5 lawyers from the Kuala Lumpur Legal Aid Centre at Brickfields Police Station on 7 May 2010 delivered its written decision on 23April 2010.

On the night of 7 May 2009, five members of the Bar Council Legal Aid Centre (Kuala Lumpur), Fadiah Nadwa binti Fikri (KL LAC Secretary), Murnie Hidayah binti Anuar, Puspawati binti Rosman, Ravinder Singh Dhalliwal (KL LAC Chairperson) and Syuhaini binti Safwan, in their capacity as advocates and solicitors, requested the police at the Brickfields Police Station for access to the 14 detained persons who had been arrested earlier that same night whilst holding a candlelight vigil at the same Brickfields Police Station over the recent arrest of political scientist Wong Chin Huat.

The police denied the 5 lawyers access to the detained persons.  Furthermore, the police, without any reasonable grounds, proceeded to arrest the 5 lawyers and only released them on police bail at around 3 p.m. the following day, 8 May 2009, notwithstanding the repeated requests by other lawyers for their immediate release.

The Panel of Inquiry, comprising Dato’ Sri Muhammad Shafee bin Abdullah (Chairman), Datuk Dr. Michael Yeoh Onn Kheng (Member), and Datuk Dr. Denison Jayasooria (Member), was of the unanimous view that:-

  • “The arrest and detention of the 5 KL LAC lawyers did constitute a denial of legal representation and a contravention of Article 5(3) of the Federal Constitution and section 28A of the Criminal Procedure Code [CPC]” and “was a clear violation of human rights”;
  • “There was no justification or necessity to arrest and detain the 5 KL LAC lawyers….as they were there not participating in the cause of their clients but simply performing their duties as legal practitioners in defence of the 14 arrestees who were their clients.  This is a clear transgression and a violation of human rights;
  • “clearly the violation of human rights herein were mainly committed by DSP Jude [Pereira] and OCPD [of Brickfields Police Station ACP] Wan [Abdul] Bari [bin Wan Abdul Khalid].  We are of the view that these 2 senior most officers in Brickfields Police station at the relevant time were responsible in making all the assessment of the situations and subsequently giving directions….”
  • “such violations of human rights occurred because the relevant officers did not understand nor appreciate the functions and duties of defence lawyers in the context of the criminal justice system….”

What is equally, if not more, important are the factual findings of the Panel, which can only be described as a sad indictment of the 2 senior police officers in question.  The Panel found that:-

  • “DSP Jude Pereira and OCPD Wan Bari were totally hazy with their testimony pertaining to their interaction with the 5 lawyers or for that matter with other lawyers including the Chairman of the Bar who arrived subsequent to the arrest of the 5 lawyers.  We find the evidence of DSP Jude Pereira totally unsatisfactory.  DSP Jude Pereira either consciously were not telling the truth or suffered from a serious bout of loss of memory.  DSP Jude Pereira initially denied interacting with any lawyers until he was confronted with direct evidence and documentary evidence in the form of the video footage”;
  • “we are baffled with [OCPD ACP Wan Abdul Bari’s] claim that he has never met the Chairman of the Bar or Mr Puravalen or any other senior lawyers representing the Bar who were allowed into the compound of the police station after the arrest of the 5 lawyers.  Mr Ragunath Kesavan in no uncertain terms testified that he pleaded to meet up with the arrestees but he was unceremoniously told off and instructed to get out of the police station by the OCPD.  [His exact words were: “Get out of MY Balai.”]  OCPD Wan Bari was only able to say that he cannot remember such incidents happening implying that such incidents never happen”;
  • “the police in their submission has attempted to argue that since all these arrestees (the 14 and 5 lawyers) were allowed to keep their handphones to communicate, there was actually no denial of communication and consultation with the counsel of their choice.  We find this argument not appealing at all because it totally demolishes all the reasons provided by DSP Jude in all the five s.28A forms for refusal of access to counsel….This is in fact a powerful piece of evidence to show mala fide and improper motives on the part of the police to deny access to counsel”;
  • “We find the other reasoning provided in the Form 28A in relation to safety of other persons to be completely without merit whatsoever and totally illogical.  DSP Jude did not tell us whose safety he was worried about.  As we had earlier pointed out that provision is totally inept to this mundane situation”;
  • “We are even prepared to accept that the 14 may have been difficult in allowing the processing of their particulars to be undertaken but this is a far cry from claims that they were unruly to the extent that their behaviour brought about a situation of a possible siege of Brickfields Police station.  There was even a claim that others from outside could pose danger acting in concert with the 14 to cause a public order problem.  Apparently, according to DSP Jude the armory too could have been put in danger.  We find no evidence of this magnitude.  The Police in Brickfields were well in control of the situation”;
  • “The Police having exaggerated the situation of the 14 arrestees then made the claim that the drama relating to the 14 is a continuous activity or transaction to the event leading to the arrest of the 5 LAC lawyers.  We find this claim absurd….”

The Panel thus highlighted serious misgivings as to the credibility and integrity of ACP Wan Abdul Bari and DSP Jude Pereira.  The Panel has made strong conclusions as to the veracity of their testimony.  However, and regrettably, the Panel did not see fit to make any recommendations that disciplinary proceedings be commenced against these 2 senior police officers.  When asked why, the Chairman said that the Panel was aware that a civil suit might be filed against PDRM.  With respect, whether or not there is to be a civil suit should not concern the Panel.  The Panel’s terms of reference included making recommendations as to corrective action.  In not recommending disciplinary proceedings, the Panel fell short of its terms of reference.

In any event, the conduct and testimony of the 2 senior police officers constitute grave violations of the PDRM’s disciplinary regulations as set out in the Police Regulations, 1952 [L.N. 636/1952].  In particular, a police officer who:

  • without reasonable cause makes any unlawful or unnecessary arrest (Regulation 23);
  • knowingly makes or signs any false or misleading statement in any official record, register, book or other document (Regulation 45); or
  • prevaricates or lies at any official enquiry (Regulation 52),

is guilty of a disciplinary offence.  These violations cannot go unpunished.

This is not the first time that SUHAKAM has dealt with the issue of the abuse of Section 28A of the CPC.  In its 2008 Annual Report, SUHAKAM had already made the recommendation “that the Police should ensure strict adherence to the statutory right of persons arrested to consult a lawyer in accordance with Section 28A of the (CPC). The said section requires the Police to inform a person of the reason for his arrest and to inform him of his right to contact his lawyer and family.”

The events of 7 May 2009 raise questions whether, more than 1 year after the release of SUHAKAM’s 2008 Annual Report, the recommendations of SUHAKAM have actually been considered and implemented both by the Government and Polis DiRaja Malaysia (PDRM).  The actions of the 2 senior police officers in question, namely OCPD ACP Wan Abdul Bari bin Wan Abdul Khalid and DSP Jude Pereira, clearly show that the PDRM are still lacking in adequate knowledge and training of the proper application of Section 28A of the CPC

The breach of the constitutional rights of another by someone in a position of authority such as a police officer, and the blatant abuse of the law, both of which have occurred here, are very much as dangerous in how it affects our country as crime and corruption.  Such practices must be rigorously and systematically rooted out.

It is high time that the Government and PDRM institute better human rights training for members of the police force.  The Government and PDRM must now initiate disciplinary proceedings against ACP Wan Abdul Bari and DSP Jude Pereira, and to make public the findings and decision of the disciplinary proceedings.  Anything less would mean that both the Government and PDRM are neither sincere nor serious about upholding law and order and respect for the constitutional rights of citizens, about the issue of discipline in the police force, or of putting an end to “little Napoleons” and the culture of impunity surrounding law enforcement agencies (but particularly the PDRM) in our country.

Andrew Khoo

(Andrew acted as Counsel for the Malaysian Bar in the hearing by the Panel of Inquiry.)

Healing Our Nation

We sang this at church yesterday:

Lord we long for you to move in power.
There’s a hunger deep within our hearts
To see healing in our nation
Send your Spirit to revive us:

Heal our nation!
Heal our nation!
Heal our nation!
Pour out your Spirit on this land!

Lord we hear your Spirit coming closer,
A mighty wave to break upon our land,
Bringing justice, and forgiveness,
God we cry to you ‘revive us’:

The chorus kept echoing in my mind as people lined up to come forward to the chancel steps to receive communion (I attend an Anglican church). And my thoughts turned to the events taking place in our country. Later that evening I attended a book launch of Tenaganita’s “Revolving Doors”, a collection of the stories of 8 Myanmar refugees at the hands of the Malaysian authorities. Even as I sat down to read one of the stories, my stomach sickened at the injustice and cruelty inflicted by one human being onto another. My sense of being appalled was all the greater knowing that these representatives of authority wear the uniform of our country and perpetrate this evil purportedly in our collective name. The book launch was all the more interesting because the original printer of the book, after delivering all the books, had taken all the copies back and destroyed them once he read through the book’s contents, afraid that the authorities would revoke his printing licence issued under the Printing Presses and Publications Act 1984. 11th hour appeals were to no avail, so Tenaganita had to find another printer who miraculously got enough copies printed in 24 hours in time for the launch. Such is the power and evil that fear generates.

After the book launch some of us went to the 2 anti-Internal Security Act 1960 (ISA) rallies in town. The one at Central Market had more or less ended by the time we got there, and my heart was disappointed to hear that the police had somehow broken it up (although from the YouTube pictures I saw later on the group actually did very well, managing to walk around Central Market and were at least allowed 10 minutes near Dataran Merdeka). After that we moved on to Dataran Merdeka, where there was a significant police presence. We walked around and eventually chanced upon some people heading for the Hindu temple opposite Puduraya. And so we followed. Call it safety in numbers, but there was something refreshing about being in the midst of several hundred (the reports said 2 thousand) people all supporting the abolition of the ISA.

It may be simplistic, but to me one of the ways that God can heal our nation is for us to work to oppose and abolish the existence of the ISA. We need to stand up and be counted to say that we are against the ISA. That the ISA represents such a departure from even the minimum standards of decency to our fellow human beings and citizens which any self-respecting society should aspire.

But it is for so many more reasons that we should be against the ISA. At the last count, 66 of them. Some are husbands and fathers and brothers, all of them sons. Separated from their families, loved ones and friends, their lives torn apart, unable to test the veracity of and respond to the very serious allegations made against them which have deprived them of their liberty because they have been unconscionably denied their fundamental right to a fair and open trial. They have been incarcerated indefinitely with no knowledge, let alone certainty, of release. The longest-held detainee is now in his 6th year and 9th month of detention, and will remain locked away until at least January 2010.

What other reason? Because the use of the ISA in this recent manner, and under these circumstances, is clearly no longer simply about whether or not the ISA is an immoral piece of legislation (which it is). Instead it is about the attempt by the executive branch of government to justify the ill-thought through use of the ISA for purely self-serving (and self-surviving) partisan political reasons. And if doubt can be (and it certainly has been) cast about the true nature of the motives on the part of the executive in using the ISA this time, then it seriously calls into question the true nature of the motives on the part of the same executive in using the ISA all those times before.

Yet another reason? At this juncture of our history and our country’s political development, separate segments of society have been brought together and united in opposition to a cruel and inhumane piece of legislation. Leaders from all sides of the political divide, leaders representing the major religions in this country, leaders of civil society organisations, and the average person in the street, have all voiced their disapproval of the ISA. Its patent unfairness and injustice have been so vividly brought home into the living rooms of millions of households up and down our country. In a way that has never occurred before, ordinary people have sensed for themselves the evil violation of their civic rights and have responded to their civil responsibilities. Their righteous indignation has rightfully drawn them out into the streets, in silent candlelit protest against the abusive nature of the powers that be. The sound of their silence has been deafening. That the authorities feel threatened could be sensed in the order of a police officer to those attending the Bukit Aman vigil 2 weeks ago not only to disperse but to snuff out their candles. For the light of their candles shines brightly to expose the dark moral bankruptcy of those who would cling to and protect and defend a decadent remnant of colonial rule in order to continue to subjugate a people struggling for meaningful freedom. But our protests will not be snuffed out. It reminded me of John 3:19-21:

“Light has come into the world, but men loved darkness instead of light because their deeds were evil. Everyone who does evil hates the light, and will not come into the light for fear that his deeds will be exposed. But whoever lives by the truth comes into the light, so that it may be seen plainly that what he has done has been done through God.” (NIV)

Even though we may not agree with the politics of some or even all of the detainees, yet in arresting one the executive arrests us all. The detention of one diminishes us all. As the poet John Donne once wrote:

“No man is an Island, entire of itself; every man is a piece of the Continent, a part of the main; if a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friends or of thine own were; any man’s death diminishes me, because I am involved in Mankind; And therefore never send to know for whom the bell tolls; it tolls for thee.

So we can and should do more. In order to show support and solidarity with those whose liberty has been snatched away, often in the darkness of the night. To speak out for those whose voices have been silenced. To stand up for those who are unable to do so for themselves. In the words of Friedrich Gustav Martin Niemoller, who survived the Second World War in Germany not withstanding his incarceration by the Nazi authorities:

“In Germany they came first for the Communists, and I didn’t speak up because I wasn’t a Communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics, and I didn’t speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up.”

May we always strive and never cease to rise above ourselves, in spite of ourselves, to realise that which is in our collective ability to achieve and accomplish in the name and by the power of God. And in God’s name bring healing to our nation.

The Cries Of Men

Two men cried in front of me in the past 4 days. Two grown up men. One in his fifties, another in his eighties. This is not a regular experience for me. Quite the contrary. And before anyone gets the wrong idea, it was not because of anything I said or did to them, or to anyone else for that matter. And neither did it have anything to do with the Olympics.

No, they both cried when talking about their country. Our country. Malaysia. And what is happening to it. The man in his eighties bemoaned the fact that inter-religious civility between peoples of different faiths was fast disappearing. That Christians did not seem interested any longer in participating in inter-religious activities, working with people of other faiths in promoting inter-religious harmony, and praying for them in such settings. The man in his fifties “choked” when he was sharing about his work in the political arena, and cried as he spoke of both his hopes and concerns for the future of this country in the light of recent events.

I too have to confess that events of the last few weeks have occasionally caused me to throw up my hands in despair. It is as though we as a nation are intent on not wanting to celebrate 51 years (45 for our friends in Sabah and Sarawak) of independence, and instead wanting to stamp our independence of and from each other.

Prophets in the Old Testament also did a lot of crying, and also about their nation. But there were also prophets who didn’t cry but who had the courage of their calling and conviction to stand up to the king/ruler of the day and tell him he was wrong. My favourite is Nathan, prophet at the time of David. He, Nathan, is known to many of us today as the person who first coined that very trendy phrase, “You the man!” Only for Nathan the expression “You the man!” was not accompanied by “high fives” all around, or whoops of joy and delight. Or by people jumping and banging their stomachs together in a high bounce. No. If we read the story of David and Nathan in 2 Samuel 12 (and especially verse 7), we will know that “You the man!” was the climax of an accusation of lack of integrity against David. David had allowed his personal (and in this case sexual) interest to influence and interfere with his administrative judgment. He had arranged one of his military officers to be killed in battle so that he could take his wife to be his own.

David was not the first ruler to be guided by his “other head” in decision-making, and will neither be the last. Nor was he the first person to be guided entirely by personal self-interest in making a “governmental” decision, and again neither will he be the last. But what is important is that we must be prepared to hold our leaders to account for their misdeeds, whatever the personal cost to ourselves.

Nathan could well have been punished for his forthrightness. The risk was very real. In another time and in another place the prophet Nehemiah approached Artaxerxes (Nehemiah 2) for a request on behalf of the exiled Israelites that they be allowed to return home. We read that Nehemiah had felt it necessary to wait 4 months to find possibly the right moment to approach the king. Nehemiah writes of his fear (Nehemiah 2:2). There was great anxiety on his part, which was reflected in a less than cheerful disposition when serving the king (Nehemiah 2:3). But God honoured Nehemiah’s integrity of service to a (non-Christian) king, thorough which Nehemiah had found favour with Artaxerxes, and the king granted Nehemiah’s wishes. Whether Nehemiah subsequently advised his followers to, “Don’t worry, be happy” (which Bobby McFerrin turned into a reggae-style hit song some years ago) was not recorded and is therefore now lost to posterity.

Today in Malaysia Christians around the country are being called upon to stand up for the truth. It may mean writing articles to tell the true story. It may mean speaking up for the truth. And we do it in the face of all manner of oppressive laws, and in the face of the self-interest of one or more persons, or collections of people. It is not easy. But we must find through our on-going relationship with God, brought about by the sacrifice of Jesus Christ and emboldened and empowered by the Holy Spirit, the strength and courage and commitment to do so.

And even as our attention is drawn to two electoral events this week, one in Permatang Pauh (on 26 August 2008) and another in Denver, Colorado, United States of America (the Democratic National Convention from 25-28 August 2008), I leave you with this quotation from Robert Kennedy. Some of you will recall that Robert Francis Kennedy, Senator from New York and one-time Attorney-General of the United States in his brother John Fitzgerald Kennedy’s administration, was about to be made the nominee of the Democratic Party for the presidential election at its National Convention to be held in Chicago in 1968 (yes, 40 years ago) when he was assassinated on 5 June 1968 by Sirhan Sirhan.

I remember as a university undergraduate visiting the John F. Kennedy Presidential Library at Columbia Point, Boston during my summer vacation from London. The Library has a section devoted to Robert Kennedy. And in one of the displays was an excerpt from a speech given by him which read as follows:

“There are those who look at things the way they are, and ask why… I dream of things that never were, and ask why not?”

I subsequently found out that this was actually taken from George Bernard Shaw (an Irish playright who wrote, amongst other things, the play “Pygmalion” which was subsequently made into the movie “My Fair Lady”), who wrote:

”Some men see things as they are and say ‘Why?’ I dream things that never were and say, ‘Why not?’”

And from Joel 2:28-32 (NIV):

“And afterward, I will pour out my Spirit on all people. Your sons and daughters will prophesy, your old men will dream dreams, your young men will see visions.

Even on my servants, both men and women, I will pour out my Spirit in those days. I will show wonders in the heavens and on the earth, blood and fire and billows of smoke.

The sun will be turned to darkness and the moon to blood before the coming of the great and dreadful day of the Lord.

And everyone who calls on the name of the Lord will be saved; for on Mount Zion and in Jerusalem there will be deliverance, as the Lord has said, among the survivors whom the Lord calls.”

May God bless Malaysia and all her inhabitants, citizens and non-citizens alike. Selamat Hari Merdeka.

God Reminds Me Of His Presence Through One Sen Coins : A Brief Reflection

One of the questions that Christians frequently ask themselves is: how do I know God is there? How do we know He is overviewing my life, following what is going on with me?

I have a healthy scepticism towards signs and wonders. As a “banana” (yellow – Chinese/Asian on the outside, white – western-educated on the inside), I am sufficiently aware of the dichotomy of living with one foot in either “world”. As a Chinese Malaysian/Asian, I am not alien to the culture of spirits. Chinese/Asian folklore is replete with stories of ghosts and spirits, of mediums and trances. The colloquial language of Asia also has many idiomatic expressions which encapsulate this form of spiritual experience. As a predominantly western-educated and western-outlooked individual, I am also in touch with the secular humanist train of thought which has more or less excluded or discounted the world of the supernatural. (Note: “supernatural” comes from the Latin “supra natura”, which literally means “above nature”.)

So when I first found one-sen coins on the road, I thought nothing of it. I mean, we find all sorts of things on the road, least of all one-sen coins. Most people would say, and I too would agree, that this is pure coincidence.

I can’t pinpoint when God began to use this as a means of assuring me of His presence in my life. It’s just that I would be walking along the road (and I do a fair bit of walking as I choose not to drive) and having a quiet conversation with God about things that are happening. In the days before hands-free handsets people would think I was mad, talking to myself. Now people just assume I am talking on the mobile telephone via a hands-free device. Anyway I would be thinking and talking and wondering whether I was just talking out loud to myself or talking to God when I would stumble upon a one-sen coin. Initially I made no connection. Then gradually each time I talked to God, or each time I struggled with some issue whilst walking to or from work or to or from an appointment, I would invariably find a one-sen coin. I began to associate it with God reminding me that He was there, listening.

Some of you will now think that I have totally lost the plot. And I would not fault you. It is very easy to “spiritualise” an otherwise not uncommon experience. Ask a mathematician and he would probably tell you that the chances of finding a one-sen coin on a Malaysian road or footpath is not necessarily low. So why should it be given this other-worldly association.

I would have left it at that save for one incident a few months back. I was doing my usual walking and thinking and talking to God (or just out loud, depending on your viewpoint) and looking at the ground when I once again came across a one-sen coin. A Malaysian one-sen coin. Nothing bizarre or odd, you might say. No, except that this was on the side of a road in Yangon, the capital of Myanmar. Yes, yes, I can rationalise how it got there, courtesy of the many Myanmar nationals working in Malaysia, returning home and dropping Malaysian coin currency generously on the road-side. But just at that particular point in time, when I was talking to God, in a foreign country?

Simply because something can be logically explained is no reason to deprive an experience of its possible deeper significance. Take giving birth, for example. OK, I know it is not something that I have personally experienced. We all know how babies happen, how they come to be. But that does not make the miracle of birth any less wonderful. Trust me, I have 3 urban urchins to prove it.

I look ahead with some regret that we appear to be slowly phasing out the use of one-sen coins. Will this mean that God will no longer assure me of His presence in my life? Hardly, I think. Perhaps He will now just have to use higher denominations!

Postscript: I wrote this article on 13 August 2008. On 14 August 2008 I flew out to Chiangmai from the LCCT. While waiting to board the plane I mentally went through the article again, reflecting further on it. Then I made my way from the boarding gate to the plane. As I was walking, I came across a 20 sen coin along the walkway to the plane. God definitely was listening, and He clearly has a sense of humour.

Wanting To Have Faith But Still Having To Overcome Unbelief

I attended this dinner last night (Editor: MCCBCHST Silver Jubilee Goodwill Vegetarian Dinner) and listened to the PM’s speech. There were parts of it that resonated with the audience, and the idealist in me struggled to want to trust in my PM, wanting to have the faith to believe him when he said that the government was concerned, that it would not ignore the problems, and hoping that that concern would translate into actual positive action.

I was also pleased that the PM said that “[w]e do not impose constraints on people of different faiths discussing these issues although they are sensitive in nature. Only through discussions can we understand and try solve the issues.” He went on to add that Malaysians were able, as the Bernama report states, “to “sit down and discuss” various issues, especially on religion, without having the fear of repercussions from any other party.” He added, “We are a nation of many faiths. This is what Malaysia is and will always be. We have to a certain extent reached a high degree of tolerance” and “If not for this tolerance we would have disintegrated as a nation a very long time ago. The last 50 years is not 50 years of failure but 50 years of success.”

I deeply appreciated what the PM said because it is in absolute stark contrast and directly opposite to what the Minister of Home Affairs has been saying of late, especially about the forum on Article 121(1A) of the Federal Constitution being organised by the Bar Council on Saturday 9 August 2008. The Minister of Home Affairs, if the press and media reports are to be believed, has basically termed any open and public discussion of religion and conversion as being “uncivilised”. It would appear that people like the Minister of Home Affairs would rather that topics like religion forever remain sensitive so that it can be a continuing excuse not to discuss this in the open. He would rather that any problems be worked out in the darkness, in the smoky back rooms where political compromises are hatched out, free from the bright and energising sunlight of transparency and accountability that I thought the PM stood for. If the Minister of Home Affairs had his way, he would use the continued sensitivity of these issues as a permanent excuse not to discuss them in public, whilst knowing in a self-serving way that so long as we do not discuss these issues in public, they will remain sensitive. If he appears so at odds with his own Prime Minister, he should do the honourable thing and resign.

And yet even as I listened to the PM’s speech, an air of disbelief overcame me. He said that, “Ours is a good mix, no one race can oppress another race and no one race can form the government and govern this country…this is my belief.” If the PM sincerely believes this, as I have no doubt he does, why was the former Selangor Mentri Besar allowed privately to meet with representatives of PAS immediately after the 8 March 2008 general elections in an attempt to form an UMNO-PAS all Malay-Muslim government in Selangor? At the expense of a multi-racial, multi-religious and multi-ethnic Malaysia?

I was also perplexed when the PM said that he was “comfortable” attending the dinner and having a vegetarian meal and listening to the issues raised by the MCCBCHST. Prime Minister, I don’t want you to feel comfortable. When people are comfortable, they do nothing, so as to prolong that feeling of comfort. How can you or anyone in government, be it executive, legislative or judiciary, feel comfortable when people like Subashini and Shamala and Revathi are suffering because religious issues and the laws of our nation have torn their families apart, and the courts of our country have been emasculated and made powerless to help solve their problems?

Prime Minister, you yourself in your speech last night raised the fact that people are questioning your ability to deliver on the promises that you have made. You said you wanted to be the PM of all Malaysians. It is high time you proved it with positive action, not with any more words. I, we the citizens of this country, want to have faith in you. Help us to overcome our disbelief. This is the truth that you need to hear. As you yourself said last night, “Only after the truth is known can a problem be solved. So the truth, however painful must be told. And in overcoming problems, justice is important.” “People have placed their trust in me and I must fulfill their expectations.”

The time for you to fulfill our expectations has arrived. It is now.

Andrew Khoo Chin Hock
Co-Deputy Chairperson
Human Rights Committee
Malaysian Bar Council

Here’s a report on the Prime Minister’s speech at the dinner at the website of the Malaysian Bar Council.