Monday, 30 April 2007
Raja Petra Kamarudin
28th April, 2007:Ijok "...Kekecohan berlaku di pusat mengundi SRJK (C) Bukit Badong yang dikatakan didalangi oleh samseng Pemuda Umno apabila bertindak menahan kereta pacuan empat roda milik petugas KeADILan. Cermin kereta petugas KeADILan itu telah dipecahkan samseng BN, di mana menimbulkan kekecohan hingga berlakunya pergelutan di antara kedua-dua penyokong parti berkenaan...." Read here for more
Excerpts: Read here for more
My wife has never forgotten what happened in Putrajaya during the last general election in March 2004.
Abdul Rahman Othman, then Parti Keadilan Rakyat’s Deputy President, contested the Putrajaya Parliament seat.
On the other side was Tengku Adnan Mansor, the Minister of Tourism.
The seat should have actually been contested by PAS but Rahman wanted it so PAS gave it to him although Keadilan did not have any branches in Putrajaya and maybe just a handful of members; a very small handful. The PAS machinery in Putrajaya was quite well established and they had been laying the groundwork to contest that seat for quite a number of years.
Rahman arranged a meeting with the PAS boys from Putrajaya and at first they were not quite prepared to help out because they felt that Keadilan had hijacked that seat from PAS. Rahman asked me whether I would like to be his campaign manager. You must remember, Rahman told me, we would most likely lose that seat to the extent of losing our deposit as well.
It is quite a difficult seat to win because not only are 98% of the voters Malay but they are nearly all civil servants as well. And with such a small number of voters it would be very difficult for them to vote opposition. The government would be able to detect who they voted for quite easily. In a bigger seat it would be more difficult for the government to check the votes.
A few days before the election, the civil servants were called for a meeting and were informed that the government is monitoring who they vote for and if they voted for the opposition the government will be able to find out and take action against them.
These meetings were held during office hours and in the government departments. We, however, were not allowed into the government offices so we had no choice but to campaign after office hours and meet the voters outside their homes.
But everywhere we went we were trailed by the Umno people so many of the voters did not dare talk to us.
We broke up into a few groups and canvassed house to house.
One group that was headed by Rahman’s son was surrounded by Umno bouncers in black jackets and he was beaten up. A police report was made but of course no action was taken. Rahman’s son said that the Umno chap who beat him up was a huge chap built like a gorilla.
While I was having dinner with my wife I received a phone call from the Putrajaya Special Branch head, ASP Ibrahim. He told me that the police have received a report that we are using Bangladeshi workers to put up our posters and flags and this is a violation of election rules which can result in Rahman being disqualified. I stopped eating and rushed to our base to find all our workers still idling under the tent. It appears that not one of our workers is out yet. All are still waiting for midnight before they start moving.
I drove around Putrajaya and saw that the Umno boys were putting up their posters and flags. And they were using Bangladeshi workers. I then phoned ASP Ibrahim to inform him that none of our workers are out yet, all are still in the two bases, and that it is Umno that is using Bangladeshi workers. He just replied, ‘oh’.
Come midnight, our chaps loaded all the posters and flags into their cars. However, before they could move, their cars were surrounded by the Umno cars. They phoned me to inform me that they are being locked in by Umno cars and can’t move. I phoned ASP Ibrahim to inform him about this and he assured me he would send a police patrol car to look into the matter. No police patrol car ever came and our operation for that night had to be aborted.
I organised a meet-the-voters session and invited Anwar Ibrahim’s daughter, Nurul Izzah, to attend. As soon as Rahman started talking, the police arrived with the Umno chaps and a couple of Election Commission officers in tow. I was informed that we are holding an illegal assembly and must stop. I argued with the police and one Election Commission officer told me that this is a breach of election rules and Rahman can be disqualified. Tengku Adnan would then win the Putrajaya seat uncontested.
The next day the Election Commission sent Rahman a show cause letter.
In another gathering, Ezam Mohd Noor, our guest of honour, could only shake hands with the voters. He was not allowed to address them or else we would be deemed as holding an illegal assembly which, again, would result in Rahman’s disqualification.
I invited Ustaz Haji Abdul Hadi Awang to speak at one gathering and this time, just to make sure, I applied for a police permit. I sat there at the police station until they approved it. They told me that the Special Branch needs to approve it so it may be a long wait. I told them I would wait and sat there in the office without budging. They finally approved it just to get rid of me. They could not go home with me still sitting there. The only way they could go home would be to approve my permit so that I would leave.
I received a phone call that Hadi was on the way and was only a few minutes away. But the hall was completely empty. This was most embarrassing. No one was attending our ceremah. I asked one PAS chap as to why the hall was empty. He informed me that a group of policemen were outside the hall taking photos and video shots of everyone who comes into the hall so no one dared enter the hall.
I went outside and found about half a dozen or so police officers, ASP Ibrahim included, with cameras and videos in hand hard at work. One police officer, an Indian, was holding a video camera and was taking shots of everyone. Lurking in the dark shadows at a safe distance was a few hundred people who did not dare approach the hall.
I told the Indian policeman to stop taking shots of the people but he ignored me. It had been a long and tiring five days with no sleep and I was in no mood for crap. With all that had been happening the last week or so, I was already at the end of my wits.
I shouted at the Indian police officer, “Hey, Keling pariah, I said stop taking shots of the crowd. Tak dengarkah? Babi Keling. Berhentilah. Pariah” He ignored me and continued shooting.
The other police officers, ASP Ibrahim included, just stared at the ground and did not even dare look me in the face.
I approached the Indian man and tried to grab the video camera from him. He resisted and I was half expecting the other police officers to handcuff me and take me away.
The Indian man replied that there is no film in the video. This really upset me. What does he take me for, a fool? He was using a digital video camera and of course it had no film.
Dr Hatta Ramli, Hadi’s political secretary, and my son who had heard me shouting at the top of my voice came to investigate what the commotion was all about.
I screamed at the Indian man, “If you don’t stop taking shots of the crowd I am going to smash up your video into a million pieces and force you to swallow it. Then I am going to kick you on the arse all the way back to India.”
Dr Hatta joined the shouting match while my son grabbed the Indian cameraman by the throat and I had to stop him from punching the chap. The cameraman looked at his boss who signalled him to lay down his camera. ASP Ibrahim put his hand on my shoulder and urged me to calm down. I will get my officers to leave the area, he assured me.
As soon as the police left, the hall overflowed with about 1,000 people. The night was a success. But I was now on the warpath.
The next day I toured Putrajaya and found all our flags cut down while Umno had stuck theirs on all our posters and billboards. You could no longer find any Keadilan flags and posters. Many had been cut down and those few left standing were covered with Umno flags. This was too much. I knew it was no point complaining to the police.
I rushed back to our base and grabbed my Bowie knife. My wife knew that I was about to do something that everyone may regret and she told my son to follow me with a request, “Jaga daddy.” My wife knew better than to say anything or try to stop me. I wanted to do something, anything, just as long as I did something.
I cut down all the Umno flags tied to our flagpoles and posters. I was careful to not touch any Umno flags that were on their own flagpoles. I only went for those tied to our flagpoles and posters. I threw the Umno flags into the middle of the road so that all the cars that passed by could run over them. I walked all over cutting down Umno flags and threw them into the middle of the road. My son followed behind in the car.
Within a few minutes, three carloads of Umno chaps in black jackets arrived. My son shouted, “Daddy, jaga!” About six or seven chaps with sawn timber in hand came towards me. One of them, a huge man built like a gorilla, seemed to be the head honcho and I knew straight away that this was the man who had beaten up Rahman’s son. He fit the description perfectly.
I could not escape. In fact, I was in no mood to run. I wanted blood and I rushed towards the half a dozen or so chaps with the Bowie knife in my hand. I could not take all of them so I charged the biggest of the lot, the gorilla. If I could fell him then the others would back off. These Umno black jacket bouncers are not that brave. If it is six or seven against one, they would be brave. If the odds are equal then they don’t have the balls.
The gorilla moved back. I had caught them by surprise. They never expected me to rush them. They probably thought I would run. I shouted at the gorilla. “Oh, you beat up Rahman’s son is it? Okay, now try to beat me up.” He denied beating up Rahman’s son while all the time not taking his eyes off the knife in my hand.
I charged the gorilla again and he moved further back. In fact, all of them moved back. They could have beaten me silly with the wood they were holding and I would have been powerless in spite of my Bowie knife. Till today I wonder why they did not. Maybe it was the look on my face that showed I wanted blood.
In a short while the police arrived and I threw the Bowie knife into the car before they could catch a glimpse of it. One of the Umno chaps, a Datuk in sunglasses, shouted at the police to arrest me. My son charged the Datuk and tried to smash his face in.
I had a hard time trying to hold back my son who wanted the Datuk for lunch. The police pleaded with all and sundry to calm down. I shouted at the police, “Fuck you. Arrest me or fuck the hell out of here.” Nobody moved.
I told my son to get into the car and start the engine. I got into the car and we drove off with the Datuk screaming, “Jangan lari! Tangkap dia! Tangkap dia!” But the police were in no mood to arrest anyone that day.
I responded to the Datuk by yelling back, “Melayu bodoh! Melayu bangsat. Melayu pariah!”
I then sent word to the Umno black jackets that if they touch any of our boys again or vandalise our flags and posters they are going to find their boys dead in the drain with their throats slit.
The police called me in for a meeting and I warned the police to stay out of the war.
This is between Umno and me, I told the police. If you don’t want any dead bodies on your hands then tell Umno to lay off, I warned the police. It is Umno that is attacking us. We are just defending ourselves.
From thereon the police sent their people to follow our people around. They were worried that the Umno chaps would continue attacking our boys and they knew that this time it would be with drastic results.
That was my Putrajaya experience; exactly what Keadilan is facing in Ijok today.
And that is why my wife does not want me to go to Ijok. She knows that I have not forgotten Putrajaya and I am still sore about it till today.
If any of the Umno boys do to me what they did to Jeff Ooi a couple of days ago it would not be me with the black eye. I will just not tolerate being bullied and treated like shit.
And my wife loves me too much to see me spend the rest of my days in the Sungai Buloh Prison.
So I am stuck at home at the request of my wife. And this makes me mad as hell because I would rather be in Ijok kicking the arses of the Umno black jackets.
Saturday, 28 April 2007
Results Show Indian Voters are the Saviours for Barisan Nasional's MIC Candidate at IJOK By-Election
IJOK BY-ELECTION RESULTS
-Courtesy of Malaysiakini
Barisan Nasional = 5,884
PKR = 4,034
Voter Turnout: 81.88 %
Commentary: Read Here for more on "The Malaysian" Blog
"...This by-election will probably go down in our history as the worst in terms of dirty politicking and the increased incidents of violence.
As incredible as it seems, the regrettable happenings actually took place in Malaysia instead of in some other more violence prone third world country.
What has become of the gentlemanly hustings of yore when opposing candidates could exchange friendly banter between campaigns and supporters of both sides looked upon each other as temporary yet friendly rivals? How and when did thuggery make its quiet entry into Malaysia's electoral system and practice?
All I can say is that whoever wins this by-election later in the evening (unofficial reports indicate that the BN has won), Malaysia's credibility as a model democracy and its quite reputable conduct of fair, violence-free elections has taken a bad beating. If the mainstream media is to be totally believed, then the opposition Keadilan supporters must comprise mostly thugs, gangsters and other roughnecks out to physically injure those from Barisan.
There is no doubt that the Keadilan people did manhandle some supporters from BN and even blocked the Deputy Prime Minister's motorcade. Something unheard of in the past.
There were also allegations that two buses ferrying Umno Puteri members were pelted with stones.
Fortunately no injuries were reported.Of course any report of this nature from the mainstream media must be taken with a dollop of salt. Still, even if twenty percent of what happened is true, that in itself is bad enough.
I must hasten to add that we have not heard about the huru-hara perpetrated by Barisan supporters. To pretend that they are incapable of or did not engage in equal measures of violence, is to be foolish.
Their significant contribution to the shameful conduct in this by-election will be out soon via the internet media.
All said, I hope that this is the very last time we shall see such un-Malaysian behaviour during the polls...."
Thursday, 26 April 2007
Read here Full Report on the Debate,Titled "There is a Need, in Malaysia, to Establish an Independent Judicial Commission in Relation to the Promotion and Appointment of Judges"
READ HERE for Context and Background on Why Appointments and Promotions of Malaysian Judges are Questionable and UNFAIR . Read HERE and HERE and HERE and HERE
UPDATE: The Government has REFUSED to Setup an Independent Judicial Commission for Appointments and Promotion of Judges.
Read here for more
The government remains unconvinced of the need for an independent judicial commission.
Minister in the Prime Minister’s Department Datuk Seri Mohd Nazri Aziz yesterday reiterated his stand that the commission was unnecessary.He also questioned whether the commission, intended for the promotion and appointment of judges, would be truly independent.Excerpts of the Report: Read here for more
"Only if the commission can say it was sent down from heaven and appointed by God, can it truly be independent. The words ‘independent judicial commission’ are an illusion."
"The members will always be beholden to somebody, the persons who appointed them," he added.
The Bar Council first proposed an independent commission relating to the promotion and appointment of judges about a decade ago. The setting up of the commission, made up of individuals, including lawyers, academics and former judges, has also been supported by former judges and the Malaysian Human Rights Commission (Suhakam).
The debate was between De facto Law Minister, Datuk Seri Mohd Nazri Aziz and Kota Bahru MP Datuk Zaid Ibrahim
Datuk Zaid Ibrahim spoke FOR the Proposition
"... Zaid Ibrahim spoke for the proposition by saying this motion is not a new subject, and that he had heard it 6 years ago.
He said the judiciary is in dire straits (because it ) is seen as an extension of the government department.
The judges are Malays, and it is just like a Malay department, adding that he has no problem with that if selection process is transparent and the criteria for selection are known.
"One then begins to ask if this is another government department, another agenda, a Malay agenda. Is it an agenda for justice?
"We know some good judges who are still languishing at High Court level for years. Some have been promoted up and up.
"Of course, the Chief Justice said because he has consulted a lot of people, he does not need to explain the basis for his decision. But that is what integrity and transparency are all about - to explain and justify.
"But we do not have that in the judiciary. There is also talk about corruption in judiciary - not among lawyers but also by inside people," said Zaid.
He said Syed Ahmad Idid put it openly. Idid who made serious allegations also named names some 10 years ago. Even the former Attorney General, Tan Sri Abu Talib said in one of his interviews that there was no investigation.
He charged that now we have questionable decisions made even in corporate cases like the Ayer Molek case and the conversion cases which have also caused concern among lawyers and the public.
Being mindful of what the Chief Justice said recently that slanderers are worse than murderers, he asked how could that be possible when we lawyers have no ulterior motive, and we say it because we want to see what is good for the people, the government and the judiciary.
"We have no ulterior motive. I don't think the Bar has got ulterior motive. What do they get? What can some of them want to be judges - judges are so poorly paid!
"So we do not have the ambition. We are concerned because the best people to know about the judges are the lawyers. The Barisan Nasional government must believe in what we say, unless proven otherwise", Zaid said.
Zaid said Nazri could make his mark by persuading the government to have this commission - to select the best among us. The best, Zaid said, are smart fellows, qualified lawyers, good scholars and those who have integrity and courage.
He explained we could do that if we have an independent commission.
What is so difficult about the commission?
How will it take away anything except to make it more transparent and accountable?
"If South Africa, a newer democracy can do it, how come WE CANNOT do it?" he asked.
"It is beyond one man to pick the judges. We need a structured organisation. We need people to vet through the applications as even with qualifications we have messed it up, " Zaid said, referring to the appointments of Datuk Dr Visu Sinnadurai and Dr Badariah Sahamid.
"If we cannot get the minimum qualifications right, how do we expect to get it right on character?" he asked.
Good judges are good for the government. Good judges are good for the country. He said one may say this is a view of the minority.
But citing examples showing otherwise, Zaid said after the Tun Salleh Abas crisis, Tun Suffian lamented that it would take a generation for the judiciary to recover. In 2001, Tun Dzaiddin said public confidence in judiciary was at its lowest point.
Nothing has happened since 2001. He also quoted what Datuk Shaikh Daud had said that it used to be that tinting of judges' cars is for security reason, but now it is to hide their embarrassment.
He also referred to the recent statement by the Suhakam Chairman, Tan Sri Abu Talib who said the courts have failed to interpret the constitution.
The most damning evidence of the deteriorating state of judiciary, he said, actually came from Nazri himself.
Zaid elaborated that on April 11, Nazri was reported to have said that it is in his opinion that the government requires the setting up a commission to study the question of conversion so that these conversion cases can be settled in the extra-legal manner especially when children are involved.
Replying to Karpal Singh on the Lina Joy case, Nazri said the decision is difficult to make as it is very sensitive and we have to consider the consequences. If it is made in the right decree, the acceptance may be difficult. Zaid also quoted Nazri as saying a judge of certain faith will be labelled biased if he makes a decision favouring that faith.
"What does it say? That the government itself is not sure if our courts were to decide according to law, which they are supposed to do, there may not be acceptance? There may be serious consequences?" Zaid asked.
He said he was not trying to belittle the remark, but it just goes to show that Nazri himself is concerned about the acceptance by the public of the court's decision on sensitive cases.
But Zaid said one cannot run away from making decisions by constitutional means when already we have already taken away so many things from the courts.
If there is a conflict between political parties or among themselves, under the Societies Act, you can't go to court now. That has been taken away. Zaid also said judicial review has been taken away and you have to decide what Federal law prescribes, adding that Article 121 has been amended to remove judicial powers from the hands of the judges.
"If we take these sensitive cases away from the courts too, what is there left for the judges to do?" he asked.
" We have to face the hard facts. We are not the only country or society which have difficult cases or issues to deal with. But in all those countries where there is democracy and stability, "Zaid said.
" The courts have that role to play and people accept the difficult decisions made the courts, citing the controversial case of excavating the Babri mosque in India where the decision of courts saved the day for India. In America, the Supreme Court did not shield President Nixon when Justice Warren Burger ruled that executive privilege does not protect or hide the president's wrongdoing. Similarly, the US Supreme Court ruled in Brown v. Board of Education, 347 U.S. 483 (1954) on the constitutionality of segregation laws, saying we have to be equal as we cannot be separately equal. "
" Judges are therefore a different breed of people. If the public have confidence in them, they can bring stability to the country.
"In this country, there is an extremely lack of confidence in our judiciary."
He alleges that the government has no confidence too and that is why they are keeping a closed eye.
Zaid went on to stress that the arguments for commission are so compelling. He said when he went to the elections in 2004, his constituency believed him when he said this government would fight corruption and go for accountability and transparency.
He said, if this government can show this commitment by just establishing a way we select and promote judges and restore the people's confidence in the judiciary, the government will go a long way in fulfilling a part of our promise to the people.
Nazri spoke AGAINST the proposition
Nazri said what he (Nazri) was going to speak is nothing new - it is a system which has been practised for the last 50 years.
Dealing with the conversion cases first, Nazri said it is not about people not having confidence in the judges. It is all about Article 121. He said in this country, whenever one of the parties happens to be a Muslim, the judges have no discretion except to decide that the case has to go to the Syariah Court.
"The problem is with Article 121, and not because people have no faith in the judges", stressed Nazri.
"Why I said the Commission (proposed special commission for religious-sensitive matters) has to be set up to look into this is because matters like this are personal, emotional and controversial and whatever decision should not be made public", said Nazri.
In the Subashini case, he was of the opinion that the children should be given back to the mother.
"When they got married, they were Hindus and that there was a constructive agreement that any children born in the marriage would be brought up as Hindus. But suddenly he converted to Islam and took away the two sons from the mother and he wanted to convert the sons to Islam too.
"This is not fair. If you take this matter to court just because one of the spouses is a Muslim, the Federal Court has no decision but to say that this is under the jurisdiction of the Syariah.
"That is what I said it should be extra legal. Once it is decided on legal matters, it is a goner for the wife. This is what I meant," said Nazri adding that it is not because he has no confidence in the judges but because he felt for the good of the children.
He said that explains the need for the commission consisting of chief priests of every religion, probably with the Sultan, being the head of the Islamic faith in every state, as the Chairman.
"Let them decide extra legally and there is no need to reveal. Justice can then be done without taking the matter to court. The moment it is taken to court, Article 121 will come into play," said Nazri.
Having said that, Nazri emphasised that this is a system we have for a long time since independence. He said there were no complaints during the years after independence in the 60s and 70s. It is the same system, and he said everybody was happy then.
But today we are more vocal, forthright and and not afraid to say our piece. So, of course, there is some unhappiness with the appointment of judges. But that is not because of the system, Nazri said it is because of individuals. In this instance, he asked why must we throw away the system when one may not be happy with the choice made by the Chief Justice.
He went on to ask what if we are not happy with the choice made by the commission.
"Are you telling me that everyone is going to be happy with whatever decision made by the commission? No way. You cannot get 100% approval from the public", said Nazri.
Nazri said it is a question of choice of the public. But Nazri said it is not true that it is the choice of one person. If one looks at the Constitution, Nazri said appointment can only be made by the king on the advice of the Prime Minister after consulting the Chief Justice and the Conference of Rulers.
He said if one knows the system, one ought to use the system. It is not just one person - the Prime Minister, the king (even though he acts on the advice of the Prime Minister), 9 Malay Rulers and the Chief Justice. So, there are actually 12 important people who are responsible for appointing the judges in the courts.
"If that is an easy thing for the Chief Justice to do, I am asking you why until now the Chief Justice is not able to appoint the successor to Tan Sri Siti Norma Yaakob who retired on 5 January this year as the Chief Judge of Malaya," he asked.
"If it is so easy - if you think that the Prime Minister will just accept any name given by the Chief Justice, if you think the Malay rulers would accept any name given by the Chief Justice, then her successor would have been appointed", said Nazri.
"Why? Why?", Nazri asked, revealing that there are difficulties at the moment.
"Because there are clever people who don't attack the system. They look at the system, and they went direct.
"Some to the Prime Minister, some went to see the rulers and gave their opinions. That is why until now the Chief Justice has not been able to appoint because it is not what you say a smooth ride. Because the names given by the Chief Justice - one or two - probably I do not know - not accepted by the Malay rulers. I do not know. May be the Malay rulers asked for more names or may be the Prime Minister wants to see more names, not just one or two which the Chief Justice has given to him," Nazri added.
So, Nazri said this is the system, and one can always see the Prime Minister. If there is anything wrong, Nazri said, it is because of the individuals.
"If in the past, the judges elevated were not prominent people, then probably, I do not know, the Prime Minister then was not too concerned about the judiciary. I do not know," said Nazri.
"But I do know that the present Prime Minister takes things seriously. He just does not accept any name given by anybody, even from me", said Nazri.
Nazri related that when he had a few appointments to be made to certain boards, the Prime Minister had asked for more names when he gave him the names.
"Here, what I am trying to say is that it is not system. Even if we have the commission, what if the individuals are not up to our expectations?
"As I have said, they can also do things which we may not be happy about. That is why what we are thinking about is not to change the system.
"The system has served us well for many years. You mentioned various names - whether they are in the executive or judiciary. Actually, the problem is the individuals. So, you don't like what the individuals did and so you want to change the system to the new system.
"And in the system, there are still things you are not happy with, like things done by the commissioners. So, let us change another system? I am saying here it is not the system. The problem is the various individuals who hold the posts.
"In my opinion, because it is the individuals, we must be smart enough to use the system. As I have said, you can always go and see the Prime Minister or the Sultans and give your opinions. They will listen to you. That is why today after 4 months, the Chief Justice is not able to appoint the CJM, probably because there is a problem with the names of the nominees given by the Chief Justice," Nazri said.
Therefore, Nazri said it is the right of the Bar Council members and lawyers to go and see the Prime Minister.
He went on to say it is not fair to talk about the independence of judiciary and independence of the 3 branches of government if in Parliament, the Leader of the House has the right to appoint anyway he likes and the Prime Minister is given the liberty to appoint the cabinet ministers. Why should similar right not given to the Chief Justice?
"I think we have not been fair to the judiciary. If we allow the Leader of the House and the Prime Minister to do it, and when it comes to the judiciary, we must have the commission, I think it is not fair," said Nazri.
He asked how independent can the commission be when we talk about constitutional monarchy in this country. They will always be beholden to somebody.
"Where do the judicial commissioners come from? If they say they come from heavens or God has appointed him, then they are independent. But in this country, the king is not an absolute monarch.
"I find it difficult that we can actually have a commission which is really independent, independent in the sense that we all want and understand.
"In my opinion, the system shall remain as it is. What is important here is to convince me is true like what Zaid said. I still need to be convinced. But no problem. Even then it is not important whether I am convinced or not.
"I think the person you should have called to appear here is the Chief Justice. Not me", said Nazri.
Nazri said he hoped when we talk about the independence of the 3 branches of the law, we do not talk with forked tongues.
"In one instance, you will accuse me Nazri from the executive interfering with the judiciary the moment we have the commission.
"I do not want people to be hypocrites. If we say we want the judiciary to be independent, we must practise it. And I intend to practise independence of the judiciary from the executive.
"I intend to do it. For as long as I am the Minister, I want to stand up with confidence in Parliament to say that the judiciary is independent.
"But if today I agree with you and I would start the motion to have this - I go back to the cabinet and convince the cabinet members and then we have a bill for this commission - then I think it is the executive interfering with the judiciary', Nazri said this at the end of his speech.
In reply, Zaid said he had difficulty at the conceptual level.
"Let us talk about independence. Surely, if you table a bill, Sir, tomorrow in Parliament setting up the commission, how could that be interference?
"Only a couple of months back or last year, we submitted a bill on the retirement age of judges and it comes from the government, how can you construe that as interference?" asked Zaid.
Zaid went on to say: "As the government, you are responsible for a lot of things, including the state of the judiciary. If you find something is not right, it is incumbent upon you to change it. That is not interference in the way that you mentioned, Sir. Interference there will be like this: Let us say one Lord President who said we wanted to have 9 judges hearing this case, and you don't like that and you sack him, then that is interference!"
Zaid said another example would be like a high profile case coming up involving a celebrity, one judge had been fixed for the case and suddenly another judge had been asked to hear it, then that is interference.
"Then people will ask why. But if you do it for a good reason, and we have plenty, then that is not interference", said Zaid.
As regards Nazri's assertion about the appointment of the Chief Judge of Malaya, Zaid asked why is it so difficult. He said it is exactly his point that the process must be clear as the appointment of the Chief Judge is a very important position for the country.
"So for all you know, our present Chief Justice must have given a name which is not acceptable for a very good reason. That would not happen if we have a transparent system and if we have a proper vetting process.
"What you are asking us to do is to be involved in jockeying for positions which we are not good at. It shouldn't be for jockeying for positions. This is a position of honour.
"We shouldn't be going and say I want the job or I want so and so to get the job," said Zaid.
Zaid said this is the proposal to help the government so that no one would tell you stories because like in England, India and Australia most of the judges were practitioners. Zaid said the Prime Minister is not expected to know all these details and so the Conference of Rulers.
"And I am sure the Chief Justice who is very busy, I mean the matter of writing judgments was raised in Parliament and obviously he is very busy, how do you think he will get the right man?" asked Zaid.
He agreed that of course there is no assurance or guarantee that even this commission would be "independent", but he said he would worry for the country if there is no such thing.
"But this is what is happening. There is this mega superpower in control of everything in our lives and in the organs of government and this is worrying," charged Zaid.
Zaid added that we must strive if we believe in democracy, in freedom and rule of law and that there must be checks and balances and power and authorities must have limits. He said we do not need to be very wise to understand this, adding that judges are there to make sure, to the best of their ability, to provide that guidance and protection on the limits.
Of course, he said Julius Caesar, many rulers and people in power would not agree with this because power is very addictive. It gets better as it gets a lot more. He said that is why the founding fathers of this country have this in the constitution about fundamental liberties, freedom and that judges must be selected with care because they are guardians of these and nobody else.
He recalled the words of Justice John Marshall in the early years of the American Independence that the greatest scourge the heavens ever inflicted on an ungrateful and sinning people is to give them a judiciary which is corrupt, ignorant and dependent.
"I pray that we do not have that kind of judiciary", said Zaid, adding that we have to fight for this and make sure that in this country, the rule of law prevails and not discretion.
Zaid said he would be worried if it is the Prime Minister who decides the list.
"Of course, the Constitution is like that. The Chief Justice refers the list to the Prime Minister, but that is just formality.
"The actual practice in the democracy is that the real list comes at the level of the judiciary because they know best. Can you imagine if the Prime Minister selects our judges?" asked Zaid.
But we cannot have that, Zaid said because we must have limits to authority.
We cannot have a government ruled by law by whatever said by the executive. That is why, Zaid said, we must believe in independence and separation.
Finally, Zaid said while he understood why Nazri wanted to include some extra judicial means and process and religious teachers in sensitive cases, a grievance is still a grievance.
"An aggrieved party will always come to court because that is the last place.
"So, we can do all those commissions and sub-bodies or whatever you call them, when I said you must have confidence in the judiciary, you must believe that the judges we selected have that capacity, wisdom, knowledge and the understanding of the law to do justice in every case that comes before them."
Zaid concluded by saying, that is why, this process of appointment of judges is so fundamental and crucial.
Nazri responds to Zaid
Nazri said the bill he tabled in Parliament with regard to the remuneration of judges was not interference but only a matter of procedure. He added that it was agreed by the judges and he was only the postman going to Parliament to comply with procedure.
"The judges are not members of Parliament. They cannot come to Parliament and say they want their salaries to be increased. That is not the way. And because I am the Minister in charge of law, I merely, as a humble servant, did this because of procedure. The remuneration and the quantum were agreed by the judges", said Nazri.
"Of course, if you have the commission, it cannot just happen like that. It has to go through procedure, through Parliament again and humble servant Nazri will do it again. It is just complying with procedure as required by the Constitution", added Nazri.
With regard Idid, Nazri said he was found to be unfit, not because he pointed out his fellow judges. Idid was found naughty because he wrote the flying letter. He did not come forward to say that he had made the accusation with knowledge of the facts. So, he was discovered, and it is uncalled for a judge to do that to his fellow brothers.
Nazri said it was not only investigated by the Attorney General, but also by the ACA. As the allegations were found not to be true, Nazri said Idid had to go.
With regard to the commission and what Zaid said it is not the nature of lawyers to jockey for places, Nazri argued that even if you have the commission, you still have to jockey for positions with the commissioners. Nazri added that there is no law that says you cannot go and see them.
"Jockeying will still be there. As long as there are humans in the commission, there is still going to be jockeying. So what I am going to say here is - to use the system.
"If you are talking about transparency, I would tell you the transparency is only in relation to the commissioners. The commissioners will not be allowed to tell the public what they have done because it will still be official under the Official Secrets Act.
"It is the same. So let us not kid ourselves. Don't scold me for this. It is in the Constitution. It is a convention. It is a practice. I was not responsible for the Constitution. I was merely playing the game in accordance with the rules laid before I became minister.
"So if you think that you cannot go through me, it is probably because I have played the game well. It is not my fault. You cannot be angry with somebody who has played his position well", said Nazri.
Nazri went on to argue that "if you should be angry, you should be angry with our founding fathers".
"They were the ones. It has been 50 years now. Let me tell you we have been a peaceful and stable country because of the Constitution. We see countries like Thailand and Burma re-writing constitutions. Why we are still functioning as a country is all because of what we have in the constitution", said Nazri.
Nazri said he does not agree with Zaid's assertion that lawyers are the ones who know the ability of the persons who were elevated to become a judge. It means, Nazri said, that the potential judges must play to the gallery, to be nice to the lawyers otherwise you would not support them.
"I am a very frank person. I am telling you straight in the face.
"If today you don't trust the Prime Minister, at least the Prime Minister before he becomes the Prime Minister, he has got to go through many stages. Zaid knows - must be a Ketua Bahagian UMNO first, then call a meeting to be mandated as a candidate, have to stand for election and get the electorate to vote you, after that Parliament will elect you as the Leader of the House and then only you become the Prime Minister.
"He has to go through 5 stages, and so how can we say that he hasn't got the mandate to decide. That is the system and I am sure if he abused the system, he will not be there for long", argued Nazri.
But, Nazri said "if I want to be a judge and I have to please all of you, then I have to play to the gallery."
"I have to become popular because I need your support to become a judge. And what mandate do you have? You don't have any mandate compared to the Prime Minister.
"And because of that I still feel it is not wrong for the Prime Minister to make some decisions as was given to him by the Constitution because he is duly elected by the people and he has got the mandate. And if he does anything wrong, then he will have to face the consequences."
Speakers from the floor (Click here for more)
Wednesday, 25 April 2007
UMNO YOUTH, is enboldened and its thuggery is being seen to be encouraged by the total silence of UMNO, the dominant RULING political party, and by extension, by our Government.
UMNO YOUTH is behaving and adopting the tactics of Adolph Hitler's German Nazi thugs , the Sturm Abteilung (Storm Section) , Hitler's Stormtroopers or Brownshirts. Read here for more
UMNO, as the dominant party of this Government, MUST STOP ITS DISGRACEFUL YOUTH WING'S THUGGERY.
THE COUNTRY HAD TOLERATED IT LONG ENOUGH.
THE PEOPLE SAY: ENOUGH IS ENOUGH
Facts about UMNO Youth:
1. The Chief of UMNO Youth is the Cabinet Minister of Education
2. The Deputy Chief of UMNO Youth is the Son-in-Law of the Prime Minister of Malaysia
UPDATE:(26th April 2006):
The Leader of the UMNO Youth Thugs at Ijok is a Member of the UMNO Youth Exco (read below)
Photo (courtesy of Screenshots) : The UMNO Youth thug leader in white shirt is MOHD ANIS HISHAM BIN ABDUL AZIZ, described in the UMNO Youth Website as "Deputy Chairman of Agriculture Bureau, UMNO Youth EXCO." He was the person who disrupted the lunch with Tan Sri Khalid Ibrahim, and caused a fracas resulting in injury of Paul Choo. Read here Paul Choo's account and HERE
Profile of MOHD ANIS HISHAM BIN ABDUL AZIZ,
This Photo is taken from the UMNO Youth Website.
Mohd Anis Hisham B. Dato' Abd Aziz
TIMBALAN PENGERUSI BIRO PERTANIAN
Exco Pergerakan Pemuda UMNO Malaysia
NO. 9B, JALAN TENGKU AMPUAN ZABEDAH 9H
SEKSYEN 940100 SHAH ALAM
SELANGOR DARUL EHSAN
e-mail : email@example.com
Sinamaz Group Sdn. Bhd.
Azes Oil Sdn. Bhd.
Vintage Roofing & Construction Sdn. Bhd.
Dewan Muda Dewan Perniagaan Melayu Malaysia
Persatuan Sepak Takraw Malaysia
Read Related Articles:
- Click here related article: "Gangsterism (Samseng) on Display: Bandar Bukit Puchong UMNO defies MPSJ Order"
- Click here article in ALIRAN (June 2006) : "UMNO Youth: Stop threatening" (read below)
- Click here on UMNO Youth 's assault and thuggery at Tan Sri Khalid Ibrahim and bloggers at Ijok and HERE
They appeared in Machap, and NOW they have appeared in Ijok.
Pemuda Umno (UMNO Youth) members bearing the sign of the scorpion.
Most opposition campaigners on the ground in both Machap and Ijok have so far have dismissed these annoyances as that of immature ‘samseng’.
That is a huge mistake.
As the saying goes, if you drop a frog into boiling water, it will quickly leap out but if you put it in tepid water and then raise the temperature to a boiling point, the frog will simply remain until it dies.
Malaysians on the ground and the grassroots of opposition politics, see the rowdy behaviour of Pemuda Umno as merely the latest escalation of its ridiculous conduct.
I beg to differ with that simplistic dismissal.
- I see a group, that if left unchecked, will simply be further emboldened.
- I see a group that lacks any vision, and whose modus operandi is thuggery.
- I see a group that cherishes wild, inflammatory rhetoric, and celebrates a fire-brand leadership.
- I see a group that makes it okay (and indeed, makes it necessary) for other groups to behave like brutes.
All they need is to be left unchecked for a year or two, and then for them to find an excuse.
As a matter of national security, Pemuda Umno needs to be stopped now.
COMMENTARY: By P Ramakrishnan (June 2006): Read here for more
"...UMNO Youth is at it again. Something must be done to curb the ethnic "champions" and hotheads relishing a confrontation.
The general public perceives this non-action by the government as not only condoning thuggery but also reflecting fear of taking disciplinary action against recalcitrant members whose support they need to remain in power.
UMNO Youth Mob Threatening a Member of Parliament
Some 50 Kelana Jaya UMNO Youth members took the law into their hands and visited the Kelana Jaya MP, Loh Seng Kok at his service centre - six days after Loh’s speech in Parliament on 15 March 2006.
Armed with a protest letter and video cameras, they came in an intimidating manner at 9.30 pm in the cloak of darkness to deliver their ‘ultimatum’ and record this brief encounter with their MP.
They purportedly threatened to “take action” if the MP failed to respond to their letter within several days, without specifying what form of action they had in mind.
The reaction of UMNO Youth is really disturbing.
It is this denial of democratic space that seems to spell doom for fundamental rights under the Barisan government.
Their unwarranted, undemocratic reaction challenges the fundamental right of an MP to raise issues in Parliament and speak his mind without fear or favour.
This is NOT acceptable in a democracy. It only shows the shallowness of the mind and reveals a total lack of understanding of the workings of a Parliamentary democracy.
It is rather unfortunate – even regrettable – that the Kelana Jaya division was NOT ticked off by UMNO or the government for acting brashly.
UMNO Youth Mob Storming the Second Asia Pacific Conference on 9 Nov 1996
An UMNO Youth mob stormed the Second Asia Pacific Conference on East Timor (APCET II) on 9 November 1996 and wrecked this important conference.
Hundreds of unruly ruffians linked to the RULING coalition smashed their way into a peaceful legally constituted meeting in the Malaysian capital.
That mob was led by UMNO Youth and a subsequent revelation implicated a Deputy Minister from UMNO who actually gave orders to stop that conference. (For details refer to AM Vol 16 (1996): No 9 - BIG BLUNDER: Crackdown on APCET II shatters Malaysia’s image)
UMNO Youth Threatened to Burn the Chinese Assembly Hall - 8th August 2000
Then we had another episode that took place on 18 August 2000 when some 300 UMNO Youth members demonstrated in front of the Selangor Chinese Assembly Hall (SCAH) in Kuala Lumpur over Suqiu’s 17-point Election Appeal. On this occasion, the noisy, provocative demonstrators even threatened to burn down the SCAH. Read here for more on UMNO playing the racial card that led to the August 8, 2000 incident
Tuesday, 24 April 2007
Parti Keadilan Rakyat (PKR) had the Right Strategy in Fielding a MALAY Candidate for Ijok By-Election Instead of an Indian Candidate
Excerpts: Read here for more
It is a correct decision of PKR to field a Malay candidate. To do otherwise would severely diminish the chances of an opposition victory.
To field an Indian against another Indian from the BN would be suicidal.
Machap Election Experience
If you study past records (the recent one being Machap), you will find that when two non-Malays contest against each other, the Malays will inevitably support the BN guy.
DAP adopted the WRONG strategy in Machap when it selected a Chinese. The DAP candidate obtained about 1,400 votes without a doubt from the Chinese as the Malays are averse to voting for a Chinese DAP member.
Assuming the BN Chinese candidate obtained 50% of the 1,400 Chinese votes, this means that balance of 3,600 votes came from the Malay voters.
If DAP had fielded a Malay candidate and split the Malay votes, the result could have been a cliffhanger. The DAP (or PKR) Malay candidate would have obtained 1,800 + 1,400 = 3,200 votes, around the same as the BN candidate.
The Coming Ijok By-Election -April 28
There is no doubt in my mind that if an Indian candidate from the opposition was nominated to contest in Ijok against an Indian from BN, the latter would win hands down.
Now, with a Malay candidate, the opposition votes from the Chinese and Indians - plus a sizeable ‘split votes’ from the Malays - the battle for Ijok is more even.
For the opposition to win any contest against BN, the opposition cannot adopt the same strategy as the latter.
BN has no option but to field an Indian candidate because it was a seat allocated to the MIC.
PKR or DAP have the luxury of not abiding by the same agreement that firmly binds the BN.
Instead, they can face political reality and field a candidate that provides the best opportunity to win the seat based on the racial profile of a Malay-majority area.
In a Mingguan Malaysia interview yesterday, the Election Commission Chairman Tan Sri Abdul Rashid Abdul Rahman challenged the general perception that the Election Commission is not fair, independent and transparent in the discharge of its constitutional mandate to conduct elections.
WHY is the Election Commission Chairman, Tan Sri Abdul Rashid Abdul Rahman, keeping totally silent with regard to flagrant disregard of the election law.
Is the Election Commission prepared to establish its independence, professionalism and commitment to its constitutional mandate to conduct free, fair and clean elections - by speaking out against the worst case of money politics in 50 years in the history of by-elections in Ijok?"
-Lim Kit Siang
How can the Election Commission claim to have conducted fair and transparent elections in the past and the present?
- Opposition parties NOT allowed to send polling agents to supervise the casting of postal ballots by members of the police and security forces to ensure free and fair casting of votes.
- The huge presence of “phantom” voters.
- Inability to ensure a comprehensive and inclusive electoral roll with the highest possible percentage of eligible voters on the electoral register as there are at present 4.9 million eligible but unregistered voters.
- Prohibit unfair, dishonest and one-sided media coverage, whether print , radio or television during the election campaigns, such as “below-the-belt” and unethical cartoons, write-ups, broadcasts and telecasts and the “fear and scare” advertisements against the Opposition.
- Prohibit money politics, not only by candidates but also by political parties.
- Prohibit abuse of government resources and funds during election campaigns.
- The short election campaign period which is invariably decided by the Prime Minister when he dissolved Parliament, when this should be the exclusive responsibility of the Election Commission to ensure a “free, fair and clean” election.
- The abuses by the “caretaker” government in allocating funds and giving election promises with regard to development projects, or abuses of power by Ministers of the “caretaker” government in misappropriating public funds for party election campaigning, such as travelling and other misuse of public resources.
The Alor Gajah District Officer, Hashim Ismail, who was the returning officer of the Machap by-election, yesterday revealed that RM30 million of development projects were poured into the constituency during the two-week campaign period.
With 9,623 voters in Machap, this worked out to RM3,000 of development benefits for each voter as a result of the by-election, although it will be worth a full investigation by the Anti-Corruption Agency as to the “leakage” of the RM30 million development funds – as to what percentage actually reached the voters and not hijacked by cronies and proxies, whether it is 50%, 60%, 70% or higher.
However, this RM30 million channeling of development funds is not the sole item of expenditures for the Barisan Nasional candidate, as there were also expenses incurred by the candidate and the astronomical sums incurred by the Barisan Nasional and its component parties.
The election law limits the maximum expenditure permissible for a candidate in a state assembly election to RM100,000, which had been exceeded by easily some 400 fold in the Machap by-election.
The Ijok By-Election
The Ijok by-election is even worse in terms of money politics with the Selangor Mentri Besar Datuk Seri Mohd Khir Toyo announcing RM36 million for various development projects for the constituency even before nomination.
With the Deputy Prime Minister, Datuk Seri Najib Razak acting as Santa Claus announcing “freebies” all over the constituency everyday, the total development funds poured into Ijok may double if not treble Khir Toyo’s initial announcement.
Together with the monies poured in by the Barisan Nasional and its component parties in the by-election campaign, will the total expenditures on behalf of the BN candidate touch RM100 million – which would break by over 1,000 times the law limiting election expenditure to RM100,000?
But again the pertinent question is what percentage of such RM100 million would finally reach the voters and not hijacked halfway by cronies and proxies?
Why is the Election Commission Chairman keeping totally silent with regard to such flagrant disregard of the election law. Ask any person or even a student will know that this is money politics to buy votes except Rashid.
Is the Election Commission prepared to establish its independence, professionalism and commitment to its constitutional mandate to conduct free, fair and clean elections by speaking out against the worst case of money politics in 50 years in the history of by-elections in Ijok?
Commentary. Anwar's Campaign Call: Read here for more
...In nearby Bukit Badong late Saturday, about 2,000 people listened attentively to Anwar's hour-long speech centred on corruption, nepotism and poverty.
" We must declare war on poverty. But billions of dollars are being squandered away. Give a signal to the government that we want a change," he told the noisy crowd.
Anwar told the largely Muslim voters that corruption is rampant under the National Front, led by Prime Minister Abdullah Ahmad Badawi's United Malays National Organisation (UMNO).
"Where is the rule of law? There is only the rule of the jungle. UMNO uses its power in the name of Malays to exploit all of us," he said.
At a gathering Sunday night in a Chinese restaurant, Anwar vowed support for all the country's ethnic groups.
"I am a Malay leader but I will help all races to acquire economic wealth," Anwar said.
Some Muslim women stood up and cheered as he took to the podium in the packed restaurant.
"Now give us your vote," he urged them
The Candidates for the Ijok By-Election : April 28
Parti Keadilan Rakyat candidate: Tan Sri Khalid Ibrahim,
Born in Kampung Jalan Raja Abdullah, Jeram Batu 20, Kuala Selangor.
Jeram Malay School, English school in Kampung Kuantan,
Universiti Malaya (Economics degree),
University of Queensland (Masters in Business Administration)
* Joined Keadilan in 2006
* Treasurer-General of Keadilan
* Head of Keadilan Selangor Liaison Committee and Kuala Selangor Division
* Taught in schools and was a university lecturer before entering business
* CEO of Permodalan Nasional Berhad (1979-1994)
* CEO of Kumpulan Guthrie Berhad (1995-2003)
* Chairman of Amanah Mellenia Fund Bhd
* Director for SIRIM Berhad
* Advisor to Islamic Development Bank.
* Institute for Strategic and International Studies fellow
* National Productivity Council member
* Honorary member of the Council of Business Advisors to the Asia Pacific Economic Council
Barisan Nasional candidate: K. PARTHIBAN,
Born in Ladang Raja Musa, Kuala Selangor
Occupation: Kuala Selangor District Education Officer
SJK (Tamil) Ladang Raja Musa, Kuala Selangor,
SM Sultan Sulaiman Shah, Batang Berjuntai,
Institut Batang Berjuntai, Maktab Perguruan Seri Kota, Kuala Lumpur,
Universiti Malaya - B.Sc (hons), M.Ed in Education Management
* MIC Tanjung Karang division secretary since 2002
* Special officer to Tanjung Karang MP since 2003
* Teacher (1994-2006) at SJK (T) Ghandiji, Tanjung Karang, SMK Seri Desa, Tanjung Karang and SMK Sultan Abdul Aziz, Kuala Selangor
Ijok electorate: 12,272 voters (51% Malays, 28% Indians and 21% Chinese)
Sunday, 22 April 2007
MUST READ ARTICLE: Recent Cases Showed Why Appointments and Promotions of Malaysian Judges Must Be Reviewed and Questioned
Read HERE articles related to Malaysian Judges, and HERE and HERE
"...the law is only as good (in application) as the person who interprets and applies it; the Judge.
It is the Judge that administers the law.
For this reason, one of the most important processes in the system we operate in, is the appointment of judges. This process is intended to ensure that the person who is appointed as a judge or who is promoted to senior positions is qualified for that role.
... unless the right person is appointed, the law is bent and twisted out of shape.
And the system we live in begins to disintegrate.
Moorthy, Syamala, Lina Joy, Kamariah Ali, Subashini cases have all happened on the current Chief Justice’s (Tun Ahmad Fairuz bin Sheikh Abdul Halim) watch.
The current CJ has declared more than once that seniority is NOT a decisive factor. Some of the more JUNIOR members of the judiciary (in terms of years of service as a judge, not age) are sitting in the Federal Court and the Court of Appeal.
.... there are very accomplished senior judges who remain un-promoted"
-Malik Imtiaz Sarwar
Click here : List of Names of Malaysian Judges (as of January 2007)
EXCERPTS: Read HERE for more and HERE
Our Lives Are Shaped By The Law
It is crucial to remember that the system we live in is entirely shaped by the law.
The Federal Constitution, as the supreme and basic law, sets the foundation.
The space in which we exist and correlate is also shaped by the law. The law puts in place a framework that becomes the basis of our expectations of each other in our public lives.
The law affects and shapes us in so many ways. It is defining.
This is why the Federal Constitution as the Supreme Law is so important.
By entrenching basic personal rights, the Constitution seeks to ensure that our private space is protected in such a way that we can live our lives privately and as we wish to.
The only condition is that where our private lives intersect with public life, then we cannot act against the general interests of anyone else.
This is easily illustrated by the guarantee on the freedom of religion.
Article 11(1): guarantees every person the freedom to profess and practice a religion of choice.
That means that if I wanted to profess the religion of satanic worship, I could.Article 11(5): provides that my freedom cannot be invoked to justify acting against general law relating to public order, public health or morality.
The Law Is Only As Good As The Way It Is Defined And Applied
What that means is that while I can profess to be a satanic worshipper, my right to practise may be restricted if such worshipping involves acts against public order – e.g. sacrifices of virgins under moonlight.
This is because in that situation my private life – the right to be a practicing satanic worshipper – intersects with public life – the right of a particular virgin not to be murdered.
But, and this is the point of this exercise, the law is only as good as the way it is defined and applied.
Put another way, the LAW – be it the Federal Constitution or any laws made by the legislative bodies – is ONLY USEFUL in ensuring the balance described above if it is applied correctly and consistently.
This is why in common law systems, the doctrine of precedent requires that decisions of a higher court are followed by a lower court.
The presumption is that the decisions of the higher courts would be sounder – the decisions having been made by more experienced judges, usually sitting in teams of 3 or 5 – than those of the LOWER court, where more JUNIOR judge sit, usually alone.
Judges Administer The Law
This points to a very crucial feature of the legal system:
The law is only as good (in application) as the person who interprets and applies it; the Judge.It is the Judge that administers the law. For many, the Judge characterizes and embodies the law
For this reason, one of the most important processes in the system we operate in , is the appointment of judges.
This process is intended to ensure that the person who is appointed as a judge or who is promoted to senior positions is qualified for that role. Not for reasons of vanity or pride, but because unless the right person is appointed, the law is bent and twisted out of shape. And the system we live in begins to disintegrate.
Think about it. If a judge is not sufficiently competent, he or she would decide cases wrongly.
There are many consequences that flow from this: the litigant is denied justice and is put to the expense, cost and worry of an appeal.
What if the appellate judges are similarly not competent and uphold the decision of the judge?
The litigant loses the appeal, does not get the appropriate result.
Justice has failed him or her. It does NOT stop there. The appellate decision would stand as a precedent.
The law then begins to develop at a tangent until that process is stopped by a correct decision of the appeals court, if that happens at all.
And what if many of these tangents developed, different judges adjudicating differently, inconsistently? There would be uncertainty and with that, a non-functioning legal system.
Imagine the supreme court of a country deciding a case not according to the law and the facts but in accordance with the wishes of a party who has paid for a particular conclusion.
That case does not end there. It remains as a precedent, to be followed by later cases. It leads to the dismantling of the entire system of justice.
The foregoing should serve to give you an idea of why Judges are crucial and why it is essential that only qualified candidates be appointed judges.
Qualities And Abilities Of A Judge
Some may suggest that the question of who is qualified is a subjective one. (But) this flies in the face not only of logic but also of established principles applied throughout the world.
The criteria by which a person is deemed qualified are necessarily objective.
These criteria have been scrutinized time and time again and essentially revolve around two core principles – COMPETENCE and INTEGRITY.
COMPETENCE: (This) principle is self-evident; there is no room for incompetence on the bench.
INTEGRITY: (This) is more nuanced, encompassing qualities that include an understanding and respect for the role and function of the judge, a role and function that demands independence, impartiality, objectivity and judiciousness (see the 2002 Bangalore Principles of Judicial Conduct).
These two core principles can be broken down into CORE QUALITIES and ABILITIES.
The following represents a useful summary of these qualities and abilities (as identified by the UK Judicial Appointments Commission, a body set up under law to oversee the process of judicial appointments).
I think they are reflective of the perspective of all countries renowned for judicial competency and independence:
1. Intellectual capacity
2. Personal qualities:
3. An ability to understand and deal fairly:
Integrity and independence of mind; Sound judgement; Decisiveness; Objectivity Ability and willingness to learn and develop professionally
4. Authority and communication skills
Ability to treat everyone with respect and sensitivity whatever their background Willingness to listen with patience and courtesy.
Ability to explain the procedure and any decisions reached clearly and succinctly to all those involved Ability to inspire respect and confidence Ability to maintain authority when challenged.
Appointing The Judges – The Current System
Ability to work at speed and under pressure Ability to organise time effectively and produce clear reasoned judgments expeditiously Ability to work constructively with others (including leadership and managerial skills where appropriate).
Needless to say, the process of finding the right person is not an easy one.
For most commonwealth countries, the task was left to the Chief Justice who, through consultations with relevant persons, would make the necessary recommendations to the government, which would then make the appointments.
The system provided for under our Constitution in Article 122B:
This method of appointment by its nature involves the Executive in the appointment of judges.
The Yang di-Pertuan Agong appoints judges “acting on the advice of the Prime Minister” after consulting the Conference of Rulers. Where the appointment is that of a judge other than the Chief Justice, the Prime Minister is expected to consult the Chief Justice. Other cross-checks with the relevant senior judges – Chief Judge Malaya, Chief Judge Borneo, President of the Court of Appeal – are also requires in the appropriate case.
Case law has defined the expression “acting on the advice” as precluding any discretion on the part of the YDPA. His Highness’ role is merely to endorse the advice of the Prime Minister.
And while the Prime Minister is required to consult the various parties identified and the Conference of Rulers, the provision does NOT explicitly oblige the Prime Minister to act in accordance with the views expressed to him (although one would think that this should be the case as why else is there a need for consultation).
The provision can be interpreted to allow for a high degree of accountability and transparency.
Regrettably, it does NOT appear to have been interpreted that way by the powers that be.
Rather, it has been applied literally with LITTLE OR NO regard to the spirit of the provision.
The system, as I see it, is as follows:
1. The Prime Minister chooses the judges.The public does NOT know the basis upon which recommendations are made, by the CJ or by other persons, or if there is any basis at all, reasonable or otherwise.
2. He is NOT bound to follow the recommendations of the CJ or any other person.
The current CJ has declared more than once that seniority is NOT a decisive factor.
Some of the MORE JUNIOR members of the judiciary (in terms of years of service as a judge, not age) are sitting in the Federal Court and the Court of Appeal.
I know for a fact that there are very accomplished senior judges who remain un-promoted.
Things do NOT appear to have moved that much forward.
Moorthy, Syamala, Lina Joy, Kamariah Ali, Subashini cases have all happened on the current Chief Justice’s watch.
The Subashini decision has prompted outrage and questions about competency and impartiality. Even if there is no basis for this outrage (at least where the judiciary is concerned) it cannot be denied that the perception is very much otherwise.
The perception is that justice is NOT being done. Put another way, justice is NOT being SEEN to be done.
The situation described above goes back to the JUDGES who interpret and apply the law.
As stressed in the earlier part of this series, the buck STOPS with the judges. They make the decisions.
There is NO meaningful consultation with the Bar Council.
I do not know of the Bar Council having been asked for its views on potential candidates. This was however the case prior to 1988.
Appointments are therefore done on a basis that appears to have precluded any meaningful consultation.
Put another way, the appointment of members of the most crucial organ of the State are left to the discretion of ONE person. The margin for error is extremely wide, to say the least.
Is This A Good System?
The scenario is worrying as:
- There is, in effect, NO separation between the Executive and the Judiciary. Put another way, there is NO independence.
- There is NO certainty as to the basis upon which appointments are made and promotions given. This lends to the possibility, at least in appearance, that judges may pander to the appointing and the promoting authority or authorities
- There is NO certainty as to the competence of the judges appointed. All we have is the say so of the Chief Justice and the Minister of Law.
The events of 1988 and that followed the sacking of the former Lord President destroyed a very credible judiciary and in its place established a judiciary that has been the subject of damning international reports by credible legal bodies (see e.g. the 2000 ‘Justice In Jeopardy’ Report by the International Bar Association here) for its lack of independence.
This is not just about the high profile ‘political’ cases like the prosecution of Anwar Ibrahim, Lim Guan Eng, Ezam Mohd Noor (to name a few), or the various ISA detention challenges. This is also about commercial cases amongst which the Ayer Molek affair (see the IBA report) is amongst the most notorious.
When Tun Dzaiddin was appointed Chief Justice in December 2001, amongst the first statements he made was one in which he admitted that public confidence in the Judiciary was at the lowest points it had ever been.
This was not surprising bearing in mind the number of eyebrow raising events involving the judiciary at that stage.
The question for us is then do we have an alternative option that can help us address this situation i.e. the lessen doubts about the Judiciary and its performance.
The answer is a resounding ‘yes’. A Judicial Appointments Commission.
(to be continued... watch this space or go to HERE )
COMMENTARY: READ HERE
" In the current controversy, the perception of the Malaysian public is this:
The wisdom of our civil court judges, especially our learned Muslim judges involved in these cases, is being influenced or coloured, knowingly or unknowingly, by their own religious sentiments and their personal prejudices, instead of being guided by their profound knowledge of the rule of law and the Malaysian Federal Constitution.
The lesson Malaysians are beginning to learn from this controversy is that situations WILL arise again and again where our learned Muslim judges will be faced with personal or religious dilemma within themselves when fronted with cases involving non-Muslims, Islam and the Syariah court.
And Malaysians expect, without any exception, that this uncertainty should NEVER be a factor, and be seen as NOT a factor, in the discharge of their duties as judges of our civil courts .
The honorable thing for these affected judges to do is to simply recuse themselves from these cases."
Read HERE Related Article in earlier posting on same issue and HERE and HERE
WHERE IS THE INTERVENTION OF THE POLITICAL PARTY, ' MALAYSIAN INDIAN CONGRESS (MIC), ' A COMPONENT PARTY OF THE RULING GOVERNMENT, IN THIS ISSUE ?
"The time has come for people of reason to say: ENOUGH IS ENOUGH"
" 1. The Case of Marimuthu Periasamy
.... A Hindu rubber tapper, Marimuthu Periasamy, on Thursday filed an application in court for the release of his wife and six children who were taken away by Islamic religious officials two weeks ago.
They did not tell him why, but he believes that they were sent for rehabilitation on the grounds that they are Muslims.
He stated in his affidavit that he and his wife, Mrs Raimah Bibi Noordin, are Hindus, and their children are being brought up as Hindus.
According to Mr Marimuthu, seven officers from the Selangor religious department took his wife and children away from their home in Ulu Yam Lama, a village in Selangor. Mr Marimuthu, 44, then lodged a report with the Ulu Yam Baru police station.
He said he met his wife only once since she was taken away, when she returned to help out in rubber-tapping, and she told him the family is now staying in a nearby Malay village.
Mrs Raimah Bibi is an Indian who was adopted by an Indian Muslim family as a child. Her religion was recorded as Islam when she applied for a MyKad, an identity card. The couple's children are registered as Hindus.
2. The Case of Mrs. Revathi Masoosai
In another controversy, a woman, Mrs Revathi Masoosai, lost her 15-month-old daughter to her Muslim mother.
Mrs Revathi, 29, was sent to a rehabilitation centre.
She was born to Indian Muslim parents but claimed that she was raised as a Hindu by her grandmother. She married according to Hindu rites in 2004, but the marriage is not legally recognised.
Her husband is fighting for the return of his wife and daughter. The case came to light when a DAP lawmaker brought it up in Parliament.
'It is most shocking that there is a lengthening list of cases of families being broken up by religious authorities,' parliamentary opposition leader Lim Kit Siang said.
Race relations in Malaysia are increasingly being strained by the series of religion-related disputes. The government has yet to take steps to resolve the tension despite promising to do so more than a year ago.
The AG's Chambers is also reviewing laws on marriage and divorce relating to the conversion to Islam of young children.
This became an issue after two controversial cases in which the mothers nearly lost custody of their children after their estranged husbands converted their children to Islam.
Former Bar Council president Kuthubul Zaman Bukhari, who was involved in the initial discussions, said the revised law would require those who entered into a civil marriage to resolve subsequent problems in a civil court even after conversion.
Currently, Muslim religious leaders are, by choice, not represented in any of the interfaith organisations.
COMMENTARY : Read here for more
" The ugly face of religion has surfaced again in Malaysia. The Islamic department (Jabatan Agama Islam Selangor) intends to separate the family and place the wife and children in a rehabilitation center.
This is simply outrageous. A rehabilitation center?
Do all Hindus have some kind of disease that they need to be cured of?
Does it make sense for the state to break a family up and cause trauma and distress just to uphold some outdated and intolerant religious law?
Is there religious freedom in Malaysia anymore? The sad truth is that in Malaysia, Islam has precedence over all other religions.
If you are a Christian, Hindu or Buddhist, you are free to practise or renounce your religion, but if you or your spouse or your parents have the slightest involvement with Islam, you lose your civil religious rights.
Any disputes will be handled by the Islamic court under Islamic laws instead of the civil court.
I'm more concerned with issues of ethics.
We should NOT see this as an Islamic issue. Therefore it should be governed by a DIFFERENT set of rules.
Why should Muslims be treated any differently from other religions?
The universal declaration of human rights says that everyone is born free and equal without distinctions of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
If a Hindu and a Christian can live together as husband and wife, why can't a Hindu and a Muslim be allowed to live together?
And if a Christian can choose to become a Muslim, why can't a Muslim become a Christian?
Why does individual freedom of choice disappear whenever a particular religion is involved? Why should the rules be different simply because you believe in Prophet Muhammad instead of Jesus Christ or Lord Shiva?
Also, why does the Islamic Department need to resort to such aggressive tactics? Aren't there less distressful ways to handle this case? Isn't religion supposed to promote peace and harmony, not wreck havoc?
I know many rational, moderate, Malaysian Muslims will sympathize with Mr. Marimuthu's plight and feel that the family should not be broken up over weak allegations of his wife's religion. It just goes against our innate sense of human dignity and rights.
The problem is, they are NOT doing enough to oppose the state religious department.
By keeping SILENT, they are in fact protecting these fundamentalists actions. "