The Judiciary and Human Rights 252525 Tion for Contempt of Court

PP3739/12/2001 ISSN 0127 - 5127 / RM3.00 / 2001:21(6)

WILL THETHEWILL REALREALREAL JUDICIARYJUDICIARY PLEASEPLEASEPLEASE STANDSTAND UPUP

Aliran Monthly 21(6) Page 1 COVER STORY Restoring Logic And Reason The Zainur Zakaria affair: an analysis of judicial independence by Raja Aziz Addruse & Malik Imtiaz Sarwar

alaysians had, in the last MM decade or so, come to see MMM the Judiciary as an ex- tension of the Executive, if not in fact, then in appearance. This was hardly surprising when in the last decade or so, a series of events had unfolded which all too sadly seemed to point that way.

Commencing with the removal of Tun Salleh from office to, more recently: • the conviction of Zainur Zakaria for contempt for having made the mistake of filing an application in court on the instructions of a client in a cause celebre, • the ruling by the Court of Ap- peal that no person, body or institution could discuss the conduct of a judge, good or bad, except parliament (even in the face of serious allegations of impropriety against a current Made an application to disqualify two I will not hesitate to flex every inch Chief Justice), and, prosecutors of my judicial muscle • a retirement address by the out- going President of the Court of Appeal, in which he talked of long fruitful years (as a judge) of service to the government, these events had insidiously shaped the mind-set of the aver- age Malaysian to a point where public confidence in the judiciary was at an all time low. Alleged interference in his judicial Time to clean up and reform the In a speech he made in September functions Judiciary

Aliran Monthly 21(6) Page 2 EDITOR'S NOTE

Will The Real Judiciary Stand Up? CONTENTS This isn’t a cheeky question to ask of our judiciary. For too long, judicial independence has either been relegated to a memory or destined to remain a dream. COVER STORY Some recent cases give hope that we may yet break ••• Restoring Logic and Reason 222 the soporific spell that had been cast by a conserva- tive judiciary, a weak legislature and a manipula- ••• The Zainur Zakaria Story 777 tive excecutive since 1988. ••• In Defence Of Justice Muhammad 131313 ••• Phantoms On The Roll In Sabah 151515 Raja Aziz Addruse and Malek Imtiaz Sarwar ana- ••• Name Justice Muhammad's Caller 242424 lyse judicial independence by reviewing the case of •• Name Justice Muhammad's Caller 2424 Zainur Zakaria. It has taken Zainur, a member of Anwar Ibrahim’s first team of defense lawyers, three FEATURES years to get the Federal Court to overturn his convic- ••• The Judiciary And Human Rights 252525 tion for contempt of court. At the heart of the Zainur ••• When Darkness Fears The Light 282828 case were uninvestigated allegations that public •• When Darkness Fears The Light 2828 prosecutors tried to ‘create evidence’ against Anwar. ••• When Two's A Crowd 303030 We re-enact the ‘Zainur Zakaria story’ from official ••• A Lifelong Commitment To The Poor 33 documents so that you, dear readers, all members of ••• Zero Tolerance For Domestic the Court of Public Opinion can judge the conduct ViolenceViolenceViolence 363636 of the parties in this case. ••• The UEM Takeover 404040 Tommy Thomas reminds us that our system of government is based on the supremacy of the Constitu- REGULARS tion, and not Parliament. He surveys critical cases ••• Thinking Allowed 191919 since Merdeka to show that the meaningful protec- •• Thinking Allowed 1919 tion of human rights requires the judiciary to de- ••• Current Concerns 323232 fend fundamental liberties enshrined in our Consti- tution against legislative and executive assault. OTHERSOTHERSOTHERS ••• Subscription Form 383838 Many Malaysians believe the judiciary has arrived •• Subscription Form 3838 once more at a crossroad. But how will the judiciary proceed?. Will the judiciary progress towards an independent, assertive and creative stance in support of human rights and the rule of law? Or will it slide into the straitjacketed mould that left citizens at the mercy of the state’s hateful rule by law?

Hence: Will the real judiciary please stand up? Published by Aliran Kesedaran Negara (ALIRAN) 103, Medan Penaga, 11600 Jelutong, ALIRANALIRANALIRAN is a Reform Movement dedicated to Penang, Malaysia. Justice, Freedom & Solidarity and listed on the Tel : (04) 658 5251 Fax : (04) 658 5197 roster of the Economic and Social Council of the United Nations. Founded in 1977, Aliran welcomes Homepage : http://www.malaysia.net/aliran all Malaysians above 21 to be members. Contact the Hon. Secretary or visit our webpage. Printed by Angkatan Edaran Enterprise Sdn. Bhd. Lot 6, Jalan Tukang 16/4, Seksyen 16, 40000 Shah Alam, Selangor Darul Ehsan.

Aliran Monthly 21(6) Page 3 1999, at the opening of the Com- to approach it with the laissez faire cation to the Court to disqualify monwealth Law Conference held attitude of true ‘Malaysia boleh’ the two prosecutors from continu- in Kuala Lumpur, Mr.R.R. spirit. This is a truly dangerous ing to be part of the prosecution Chelvarajah, the then chairman of development for without the ques- team . He instructed his lawyers the Bar Council of Malaysia, said - tioning minds of discerning citi- accordingly. zens, there cannot be said to be “…In this era of electronic com- true democracy. The application and the docu- munication, where every case of ments in support of it were filed great interest receives world-wide It cannot be said enough: in a de- by Zainur’s firm on Saturday, 28 attention (with every piece of evi- mocracy, the check and balance November 1998. Almost immedi- dence adduced and statement essential for proper government ately after the application was made in court, reported), it is not can only exist if the judiciary is filed, the hearing was fixed for just the lawyers, judges and the truly independent. The evolution Monday, 30 November 1998. law teachers and students who of a society allows for the luxury are competent to make an in- of taking certain things for Significantly, when the court sat formed judgment as to the inde- granted. We must however never on Monday, the judge, instead of pendence of a judiciary or the lack delude ourselves into believing dealing with Anwar’s applica- of it. The lay public are equally in that the existence of one feature tion, called Zainur up and began as good a position to make their presumes the existence of the to question him on the contents of own judgment. Where decisions other. Reviewing the paths that the Statutory Declaration and the handed down, even if not always, have been taken and reminding letter. The judge’s opening remark but too often, challenge logic and ourselves of where we stand is to Zainur was, “This notice of reason, or result in injustice, con- therefore essential. In this context, motion has been filed by you and fidence in the judiciary is bound the Zainur Zakaria affair will you have to assume full responsi- to be undermined. stand as a testament to how close bility for it”. to the brink we were. Of late, a number of decisions of His questions to Zainur were put Malaysian courts, given in a The Zainur in such a manner as to call for number of high-profile cases, Zakaria Case specific answers and to confirm have been adversely commented views he appeared to have al- on both locally and internation- Zainur, a former president of the ready formed. When he had finally. These comments should not Malaysian Bar, was one of the de- ished questioning Zainur, the be brushed aside or ignored by fence lawyers of Dato’ Seri Anwar judge made the following state- castigating those who make them Ibrahim who, at the material time, ment – as meddlers in internal affairs. was being tried on charges of cor- They should be seriously consid- rupt practice. “This application with its affida- ered with a view to taking such vit in support is an interference remedial measures as may be re- In the course of the trial, Anwar with the course of justice as it has quired. Nothing is more debilitat- and his lawyers came to know of no basis. It therefore amounts to a ing to a nation than to have a ju- a Statutory Declaration made by pre-emptive step to undermine diciary which does not command a very senior lawyer. In a letter the integrity of a trial in progress. the respect and confidence of the written to the Attorney-General, The object is to project an impres- public.” which was annexed to the Statu- sion that the prosecution is an- tory Declaration, the lawyer had chored on fabricated evidence. What has been equally worrisome alleged that two of the deputy This is a serious contempt and I is that with the constant bombard- public prosecutors conducting have to act on it with all urgency ment of eyebrow raising judicial the prosecution had tried to fabri- to preserve the integrity of this events, the public has come to a cate evidence against Anwar. trial. As I said in the early stage of point where they have been al- this trial I will not hesitate to flex most completely de-sensitized On the basis of these allegations, every inch of my judicial muscle about the issue and have begun Anwar decided to make an appli- to ensure that this trial proceeds

Aliran Monthly 21(6) Page 4 smoothly. It is my duty to guaran- “Court:“Court“Court You do not wish to tender think, and reason enough for tee that persons who are follow- an apology in the terms that I de- Zainur not to have been convicted. ing this trial are not hoodwinked scribed earlier? His conviction defied logic. The in any way. …. In the light of the En. ZainurZainur:ZainurEn. I regret I am unable to Court of Appeal however did not baseless application filed by you do that. Convicted.” see it this way, and took the same which is totally unsupported by view as the High Court judge. the documents exhibited by you I Zainur Appeals Zainur’s appeal was dismissed. propose to cite you for contempt for having attempted to under- Zainur was sentenced to three The Federal mine the integrity of this trial. Be- months’ imprisonment. An appli- Court Rules fore I do so this court will show cation for a stay of execution was mercy towards you by dropping refused by the judge. An interim Zainur appealed further to the all further proceedings if you ten- stay was, however, granted by the Federal Court which, in its recent der an unconditional apology to President of the Court of Appeal decision, had no hesitation in set- this court, to the AG, to [the two upon an urgent oral application ting aside the order of committal prosecutors in question] for filing made the same morning. Zainur made by the High Court. Such an application which is abso- was later released on bail and did was the importance attached by lutely baseless and which is an not have to serve his sentence im- the court to the issues raised in abuse of the process of court..”. mediately. The interim stay was the appeal that each of the three to have effect pending the hear- judges delivered separate judg- After a short adjournment to en- ing of Zainur’s appeal to the ments. In essence, the court found- able him to consider whether to Court of Appeal against the order tender an apology, Zainur in- of committal and sentence. • that Zainur had acted properly formed the court that he was not in filing the application on be- able to. Thereupon he was cited To pause and reflect, in essence half of Dato’ Anwar because for contempt of court. what had happened was this: a “one only needs to read … the lawyer acting on the instructions letter and the statutory decla- An application by his lawyer that of his client and backed by rea- ration to appreciate the fact he be given a day or two to pre- sonable material, filed an appli- that this cannot be baseless al- pare his defence and to call the cation in court. Taking it to its legation” and that Dato’ senior lawyer, who had affirmed logical conclusion, this could have Anwar was entitled to address the Statutory Declaration and been any application: one to his complaint to the court written the letter, as a witness, amend pleadings, one to seek di- was refused. Zainur decided to rections, or something as equally • that, having regard to the very give evidence and went into the innocuous. serious nature of the charge, witness box. He testified that he Zainur should have been had filed the application on The lawyer was then convicted of given the adjournment he had Anwar’s instruction and in dis- contempt for having filed it - for requested for to enable him to charge of his professional duty having acted as he was required prepare his defence and to call as an advocate and solicitor. He to do, ethically and legally, as an witnesses. In not granting the was found by the judge to have Advocate and Solicitor. And with- request the judge had deprived committed contempt. In person- out having been given the right to Zainur of the opportunity to ally addressing the court on the be heard. present his case fully question of sentence, Zainur explained how the application As a result – and just as signifi- • that there has been a blatant came to be made and said that it cant - the application was never disregard of rules of procedure was not his intention to commit heard, and a litigant was never and, considering the frame of contempt. The following excerpts heard on what he considered to mind the High Court judge from the notes of proceedings re- be of crucial effect. was in, he should have been corded by the judge complete the the last person to deal with the picture – Fairly fundamental, one would alleged contempt by Zainur.

Aliran Monthly 21(6) Page 5 • that the High Court judge, by speech that citizens of this coun- neering judgment on issues per- the manner he conducted the try are ensured as a fundamental taining to the Internal Security proceedings, in particular his liberty. Act. Soon after, Justice interrogation of Zainur and Muhammad Kamil delivered his his speedy finding of guilt While one can accept that judges now famous judgment and re- without even allowing Zainur sometimes fall into error, what vealed the fact of alleged interfer- to call any witness, had given was incredible was that the Bar’s ence in his judicial functions. the picture that he was behav- application for leave to appeal to ing as though he was acting the Federal Court was subse- Clearly, as it ought to be, the Chief as the lawyer for the two pros- quently dismissed as ‘having no Justice is inspiring his judges. ecutors. merits’ despite that particular is- Signs are beginning to be seen of sue being included as one of the a judiciary more ready to exercise In dealing with Zainur’s appeal, proposed grounds of appeal. judicial discretion based on inde- the Federal Court did not consider pendent thought and analysis of it necessary to examine in any Notwithstanding, and very tell- the law as it stands. detail the grounds of decision of ingly, when Tan Sri Mohamed the Court of Appeal. In the words Dzaiddin was appointed as the But if we accept this as an apt of one of the judges of the Federal Chief Justice of Malaysia late last description of current events, Court, “It is obvious that the Court year, one of the first things he did then we are implicitly saying of Appeal, in merely agreeing with was to declare that public confi- that it was not so prior to the trial judge, fell into the same dence in the judiciary was at an Dzaiddin’s appointment. There error”. all time low due to events in the are therefore significant lessons preceding decade. to be learnt. The Bar Council EGM Case Restoring Logic A last word. Judges will at times And Reason err; that is why appellate courts Zainur’s case was not the first and procedures exist; but they are where a decision of the High Turning back to the Zainur affair, required at all times to decide in Court had been affirmed by the the question of the day would be accordance with the law as they Court of Appeal without much what was it that caused the Fed- see it. As long as they do so, they scrutiny. eral Court to have decided the mat- will have discharged their consti- ter in a manner diametrically op- tutional function and they cannot In the case where the Bar Council posed to the positions taken by the be described as being ‘anti’ one and the Malaysian Bar were pre- High Court and the Court of Ap- party or ‘pro’ another. vented by an injunction from peal. No new issues were can- holding an extraordinary general vassed, nor was there any radical As Zainur’s case shows judicial meeting to discuss serious allega- change in circumstance, at least decisions which are seen to be tions of acts of impropriety made in those matters germane to the patently unfair and unjust or against the previous Chief Justice appeal. There was, however, one which, to quote Chelvarajah, of Malaysia, the same thing hap- significant extra-judicial change: “challenge logic and reason” are pened. The Court of Appeal even the appointment of Tan Sri not acceptable and, therefore, un- went so far as to say that within Dzaiddin as a replacement to Tun dermine confidence in the judici- the constitutional framework of Eusoff Chin. From the outset, ary. this country, no person, body or Dzaiddin’s message was clear: it institution, save parliament or a was time to clean up and reform While it is too soon to tell for sure, tribunal empanelled for the pur- the judiciary. Could this have been some are beginning to say that we pose of looking into the conduct taken as a signal by judges? are in the midst of a renaissance. of a judge, was permitted to dis- If that is truly what is happening, cuss the conduct of judges, good Around the same time as the then it must be nurtured, for only or bad. In doing so, the Court of Zainur decision, Justice then can we say that our evolu- Appeal ignored the right to free Hishamuddin delivered his pio- tion as a society is on track. q

Aliran Monthly 21(6) Page 6 COVER STORY The Zainur Zakaria Story A Drama in 4 Acts

Act 1: Manjit Singh Dhillon Writes A Letter Hand delivered to Attorney-General Tan Sri Mohtar Abdullah, 9.30 am, 12 October 1998

At the very outset let me apologize I had gone to this meeting with 3. That in exchange for a reduc- for writing this letter in English. I the expectation that, on the basis tion of the present charge to would under normal circum- of my 1st October letter, there one under the Arms Act he stances have arranged for my staff would be some discussion about wanted Nallakaruppan to co- to translate it into Bahasa but there possible sections under the Arms operate with them and to give are matters that I am about to set Act 1960 with a view to an information against Anwar out that for the moment I feel are amendment of Nallakaruppan’s lbrahim, specifically on mat- best left on a p & c basis. Hence present ISA charge. To my abso- ters concerning several mar- the need to keep the letter away lute horror and disappointment ried women. Dato Gani kept from my staff. I have even taken Dato Gani Patail used the meet- changing the number of the precaution of hand-delivering ing and the death sentence under women and finally settled on this letter myself. section 57 of the ISA as a bargain- five, three married and two un- ing tool to gather evidence against married. You will recollect that I wrote to Dato Seri Anwar Ibrahim. you on 1 October 1998 on the 4. That he would expect above matter citing the recent pros- He had with him the letter I had Nallakaruppan to testify ecution of Samsuri Welch written to you and copied to him. against Anwar in respect of Abdullah under the Arms Act He was waving the letter about these women. 1960 as a comparative basis for and kept on saying repeatedly, ‘I you to amend the charge against am not impressed’ and suggest- I was shocked that Dato Gani Nallakaruppan from the Internal ing that he would not be im- even had the gall to make such a Security Act 1960 to one under the pressed with any plea to a charge suggestion to me. He obviously Arms Act 1960. I had copied that under the Arms Act but instead does not know me. I do not ap- letter to Dato Gani Patail. wanted more. This ‘more’, and it prove of such extraction of evi- came across very loud and clear dence against ANYONE, not I had expected a response from because Dato Gani laid it out in even, or should I say least of all, a your office but instead, as in the very clear and definite terms, was: beggar picked up off the streets. A case of my first letter dated 17 man’s life, or for that matter even August 1998, I had a call from 1 . That Nallakaruppan was now his freedom, is not a tool for pros- Dato Gani Patail on 2 October facing the death sentence. ecution agencies to use as a bar- 1998 asking to see me on a very gaining chip. No jurisprudential urgent basis. Both Mr. Balwant 2. That there were other charges system will condone such an act. Singh Sidhu and I saw him at 3.20 also under the ISA that he p.m. on 2 October 1998. The date could prefer against It is blackmail and extortion of the & time of this visit is recorded in Nallakaruppan but that if they highest culpability and my great- the police log book maintained (A.G.’s Chambers) hanged him est disappointment is that a once outside Dato Gani’s office on the once under the present charge independent agency that I worked 17th Floor of Bangunan Bank what need would there be to with some 25 years ago and of Rakyat. charge him for anything else. which I have such satisfying

Aliran Monthly 21(6) Page 7 memories has descended to such researched into the Arms Act pros- ter only warranted the Arms Act, levels in the creation and collec- ecutions by your Department over then surely 125 bullets acquired tion of evidence. To use the death the last few years but because of under a licence where the licerice threat as a means to the extortion the constraint of time have only has expired cannot warrant the of evidence that is otherwise not been able to pick till 1993, a pe- ISA. there (why else make such a de- riod well within your tenure as mand?) It is unforgivable and Attorney General. I haye chrono- This then makes the last case (‘J’) surely must in itself be a crime, logically listed out below all the listed above very relevant to your leave alone a sin, of the greatest cases reported in the local papers deliberations. This was an in- magnitude. Whether his means that I have been able to locate. All stance where the gun permit had justify the end that he seeks are that is important at this juncture expired and had not been re- matters that Dato Gani will have is to note that even in matters of newed. The charge that was to wrestle with within his own far greater magnitude you have framed against Datuk Johari un- conscience. chosen the Arms Act as the vehi- der section 8 (a) was for failing to cle for your prosecutions. renew his permit between July I have agonized over these machi- 1983 and 27 March 1984 when the nations of Dato Gani’s for the last (Annexures noted) gun was found in the Regent Ho- 10 days. I have known you for tel toilet. close to 26 years. I cannot imag- Samsuri Welch Abdullah had ex- ine you condoning such an act. ceptionally large quantities of In the circumstances I will be And so this third and final letter ammunition that had no rel- grateful if you could give this on this matter and my decision to evance to his pistols. Vincent Teo’s matter your urgent and personal let you know what transpired on prosecutions listed above (‘E’ & attention. On the available facts the afternoon of 2 October 1998. ‘H’) assume even greater signifi- a charge under Arms Act 1960, How far into your Chambers the cance. He was involved in gun as in Datuk Johari’s case above, corruption has spread I cannot smuggling and the illegal sale and will be the most appropriate and say but that you will have to stop disposal of about 240 guns to- no extraneous matters should be it goes without saying. gether with Datuk Alfred Chin taken into consideration in the (who was related to a senior po- framing of the charge. In the Nallakaruppan does not deserve lice officer), a fact highlighted by event that your direction is the charge under the ISA bearing the Director of the CID, Malaysia favourabIe, the matter could be in mind what I have set out above in a press release dated 27 May called up at short notice, per- and what is tabulated below. The 1996 (please see The Star clipping haps even before Deepavail, facts relating to the 125 bullets dated 28 May 1996 annexed to this with a view to a prompt and have been set out in my earlier two letter as ‘K’). That is by any stretch early resolution. This will free letters. In my second letter I men- of the imagination a colossal the Court of the earlier trial tioned the Samsuri Welch amount of firearms, enough to dates fixed and save consider- Abdullah charges. I have since equip a small army. If such a mat- able time and expense all round.

Act 2: Manjeet Singh Dhillon Makes A Statutory Declaration 9 November 1998

I, Manjeet Singh Dhillon (NRIC 1 . I am an Advocate & Solicitor within my own knowledge. No: 0248545), c/o Room 308, of the High Court of Malaya 3rd Floor, Bangunan Yayasan with an address for practice 2. I am retained as counsel for Selangor, Jalan Bukit Bintang, at Room 308, Bangunan Dato Nallakaruppan a/l 55100 Kuala Lumpur, of full age Yayasan Selangor, Jalan Bukit Solaimalai in Kuala Lumpur and a Malaysian citizen, do Bintang, 55100 Kuala Lumpur High Court Criminal Trial No: hereby declare and say as fol- and the facts deposed to in 45-40-1998 which is sched- lows: this Statutory Declaration are uled for hearing from 9 No-

Aliran Monthly 21(6) Page 8 vember 1998 onwards. ter a plea of guilty to an proach to extracting evidence amended charge under the from Nallakaruppan a/l 3. I wrote the letter annexed Arms Act. He asked for a letter Solaimalai by using the I.S.A. hereto as MSD-1, the contents confirming this and said that ‘death threat’ as their bargain- of which are self-explanatory, either he or Azahar would re- ing chip. and delivered it personally to vert to me after that. the Hon. Attorney-General 8. I had conveyed Dato Gani’s Tan Sri Mohtar Abdullah on 6. On 14 October 1998 I wrote a demands to my client on the 12 October 1998 at about 9.30 short letter to the Hon’ble A.G. afternoon of 13 October 1998. a.m. confirming my statement that There was little that Nalla- the client would plead guilty. karuppan could have done to 4. Pursuant to the letter being A copy of this letter is annexed satisfy Dato Gani or Azahar delivered and as a result of an hereto as MSD-2. since he had nothing to give invitation from him to do so I them that would have matched met with the Hon’ble A.G. at 7. I telephoned and spoke to the their demands, short of lying. about 11.00 a.m. on 13 October Azahar inculcated by the 1998. This invitation to meet Hon’ble A.G. This was on 16 9. I did not hear from the Hon’ble him, alone, was conveyed October 1998. The ‘Azahar’ in A.G. or Encik Azahar and so through his secretary. question is Encik Azahar bin on or about the 21 October 1998 Mohamed, Ketua Bahagian I telephoned and spoke to the 5. At the meeting the Hon’ble Pendakwaan. Encik Azahar Hon’ble A.G. He said that he A.G. never questioned or dis- confirmed receipt of my letter had made no decision and puted my allegations against dated 14 October 1998 and he asked for a further week. Dato Gani Patall. Instead the knew about my meeting the conversation covered, among Hon’ble A.G. on 13 October There was no further response other things, the work that he, 1998. He went on, in the same and so on 28th October 1998 I sent the Hon’ble A.G., was doing to conversation, to state that there the Hon’ble A.G. a reminder. I re- improve the set-up and effi- would have to ‘be something ceived a reply dated 29 October ciency of his Department. Only else (i.e. more than just a plea 1998 signed by Encik Azahar bin at the tailend of our meeting of guilt to an amended charge)’ Mohamed rejecting the request for did the Hon’ble A.G. allude to and that he would revert when an amendment of the charge. This my letter and say that the letter he had instructions. This rejection letter is annexed hereto was not very clear as to how ‘something else’ asked for by as ‘MSD-3’ and I make this sol- my client would plead to an Encik Azahar was obviously emn declaration conscientiously amended charge under the what Dato Gani had asked for, believing the same to be true and Arms Act. My response to that on 2 October 1998, and con- by virtue of the provisions of the was that the client would en- firmed to me a common ap- Statutory Declarations Act, 1960.

Act 3: Zainur Zakaria Is Cited For Contempt (From The Notes Of Evidence)

Court to En. Zainur ZakariaZakaria: This En. ZainurZainur:ZainurEn. Counsel who is argu- which is admissible. It is not right notice of motion has been filed by ing this application is Y.M. Raja to deal with a solicitor at this stage you and you have to assume full Aziz Addruse and Tuan Hj. for filing it unless your Lordship responsibility for it. Sulaiman Abdullah. propose to bring charges which we can defend. Court:CourtCourt Please read the Statutory Raja AzizAziz:AzizRaja The course of action Declaration of Mr. Manjeet Singh Your Lordship is taking is most Court:CourtCourt I intend to do that. and his letter to the AG which form unusual. We have an application the basis of your application. based on a Statutory Declaration (Encik Zainur Zakaria reads the

Aliran Monthly 21(6) Page 9 Statutory Declaration and the let- Which part of para 3 suggests that Court:CourtCourt You say ‘to give evidence’ - ter from Mr. Manjeet Singh to AG.) there was a request to fabricate nothing wrong with that. Where evidence? is the evidence to show that there Court:CourtCourt The basis of your applica- was a request to fabricate evi- tion are these two documents. En. ZainurZainur:ZainurEn. Para 3 must be read dence? with para 4. In para 3 it is point En ZainurZainur:ZainurEn Yes. 3 (he reads: That in exchange for Raja AzizAziz:AzizRaja This is unusual proce- reduction of the present charge dure. Court:CourtCourt I believe you are aware of to one under the Arms Act he the law relating to accomplice evi- wanted Nallakaruppan to coop- Tan Sri AG:AG I agree it is unusual. dence and the right of the Public erate with them and to give in- When I was asked to sit I sat. Prosecutor to reduce a charge or formation against Anwar not to charge a person if he coop- Ibrahim, specifically on matters En. ZainurZainur:ZainurEn. In para 4 the use of erates and provides information concerning several married the words to create evidence to the police. women, Dato Gani kept chang- means Nalla is asked to create ing the number of women and evidence. En. ZainurZainur:ZainurEn. I am not obliged to finally settled on five, three mar- answer that question. ried and two unmarried. Point Court:CourtCourt I refer you to para 8 of Mr. No. (4): That he would expect Manjeet’s Statutory Declaration. (Court reads law from various Nallakaruppan to testify textbooks.) against Anwar in respect of En. ZainurZainur: This shows that these women. Datuk Nalla could not give the Court to En. Zainur : Please read evidence and there was no such paras 13, 16 and 18 of the affida- Court:CourtCourt Does item 3 in para 3 sug- evidence and would mean he is vit (En. Zainur reads). gest that there was a request to lying. fabricate evidence? Court:CourtCourt Are these allegations made Court:CourtCourt Are you satisfied that the in the affidavit supported by the En. ZainurZainur:ZainurEn. It must be read with two documents in question sug- documents that you are relying on? para 4, gest that there was a request to fabricate evidence? En. ZainurZainur:ZainurEn. Yes. By reading the Court:CourtCourt Do you realize that the de- Statutory Declaration and the let- tailed questioning that I am em- En. ZainurZainur:ZainurEn. Yes ter, in particular para 2 of letter. In barking is to find out whether you this paragraph Mr. Manjeet says filed an application without much Court:CourtCourt This application with its para 3 - the whole of it. En. Zainur thought in which event this court affidavit in support is an inter- reads para 3. En. Zainur reads may be merciful with you? ference with the course of justice para 4. as it has no basis. It therefore Court:CourtCourt Where does para 3 suggest amounts to a pre-emptive step to Court:CourtCourt Do you agree that para 4 is that a request was made to fabri- undermine the integrity of a trial Mr. Manjeet’s conclusion and has cate evidence? in progress. The object is to nothing to do with his meeting project an impression that the with Gani Patail? En. ZainurZainur: Para 3 and para 4 prosecution is anchored on fab- should be read together and when ricated evidence. This is a seri- En. ZainurZainur:ZainurEn. From what I under- Mr. Manjeet referred to the ‘crea- ous contempt and I have to act stand from para 4 it was the con- tion’ of evidence he was referring on it with all urgency to preserve clusion based on the meeting be- to use of death threat. The use of the integrity of this trial. As I said tween Mr. Manjeet and Gani the words ‘creation and collection in the early stage of this trial I will Patail. I agree that para 4 is Mr. of evidence which is otherwise not not hesitate to flex every inch of Manjeet’s own conclusion. there’ suggests that Nalla was re- my judicial muscle to ensure that quested to give evidence against this trial proceeds smoothly. It is Court:CourtCourt Now I take you to para 3. Dato’ Seri Anwar. my duty to guarantee that per-

Aliran Monthly 21(6) Page 10 sons who are following this trial ditional apology to this court, to based on the documents exhib- are not hoodwinked in any way. the AG, to Dato Gani Patall and ited. Our instructions were based With the application of this na- to En. Azahar for filing an appli- on the documents. In the interest ture to muddy the smooth flow of cation which is absolutely base- of justice it was felt this matter justice, I would not be surprised less and which is an abuse of the must be brought to attention of if a similar application is made process of court. (Court to adjourn Court. to have me disqualified from for half an hour to enable En. hearing this case. In the light of Zainur to think about it). Court:CourtCourt You do not wish to tender the baseless application filed by an apology in the terms I described you which is totally unsup- On resumption: earlier? ported by the documents exhibited by you I propose to cite you Court:CourtCourt Guilty. Do you wish to ad- En. ZainurZainur:ZainurEn. I regret I am unable to for contempt for having at- dress on sentence? do that. tempted to undermine the integrity of this trial. Before I do so this En. ZainurZainur:ZainurEn. It was not the inten- Convicted. court will show mercy towards tion to commit contempt. When you by dropping all further pro- the defence team studied the ap- Sentence – three months’ impris- ceedings if you tender an uncon- plication before filing it was onment.

Act 4: Federal Court Judges Speak

Excerpts From Judgment of laration to appreciate the fact 29. Much has been said about ac- Justice Abdul Malek Ahmad that this cannot be a baseless complice evidence but whether allegation. In consequence, or not Dato Nallakaruppan 25. The relevant question, as there is really no basis to find was an accomplice or other- learned counsel put it, would that the appellant had acted in wise is clearly of no relevance. be whether the appellant’s cli- bad faith in filing the applica- The main issue is the conduct ent [Anwar Ibrahim], by whom tion on behalf of his client. of two of the prosecutors in the the application was made, had prosecution team striking a the right to complain to the 28. Learned counsel [Haji bargain to get further evidence, High Court with regard to the Sulaiman Abdullah] further fabricated at that, against the alleged conduct of the two argued, and this was very im- appellant’s client in exchange prosecutors and whether he portant, that the overriding fac- for a reduction for the death had grounds for making the tor in the four charges against penalty charge then levelled at application. If he had the right the appellant’s client was Dato Nallakaruppan. to make a complaint and if he sexual misconduct. The de- had acted properly in making fence, in essence, was that 30. Apart from the fact that the the application, then the ap- there was no truth in the application was filed on Sat- pellant’s act of filing the appli- trumped up charges and that urday and the hearing took cation on his client’s behalf all the evidence was fabri- place on the following Mon- could not have constituted an cated. Being aware of MSD’s day, the notes of evidence, the interference with the adminis- letter and statutory declara- reproduction of which earlier tration of justice and, conse- tion, which naturally con- in this judgment was for the quently, contempt of court. firmed the suspicions of the ap- sole purpose of illustrating the pellant’s client, it was natural point, clearly showed that the 26. What merits consideration for the client to be overly anx- trial judge, despite the inter- first is whether there was evi- ious about the proceedings vening day being a Sunday, dence to support the applica- against him. In doing what he was quite well prepared for tion to disqualify the two pros- did, can he be said to be inter- the event. The manner he con- ecutors. One only need to read fering with the administration ducted the proceedings, in par- MSD’s letter and statutory dec- of justice? ticular the interrogation of the

Aliran Monthly 21(6) Page 11 appellant and the speedy find- powers with no undertones of with respect, disagree with the ing of guilt without even al- any impropriety is clearly mis- High Court in holding (as did lowing the appellant to call conceived. It follows therefore the Court of Appeal) that the any witness, gave the picture that the Court of Appeal’s en- appellant had acted recklessly, that he was behaving as dorsement of that view is negligently and in bad faith in though he was acting as coun- equally tainted with the same filing the disqualification ap- sel for the two prosecutors in misconception. plication. In my view, he was the motion. prirna facie justified in filing 11. I have earlier drawn attention the said application. In the Excerpts From Judgment to that part of the judgment of premises, there could not of Justice Steve Shim the learned High Court Judge therefore have been any abuse when he said that since the ap- of the process of the court hav- 9. Given this scenario, it was pellant was aware of the con- ing the effect of undermining hardly surprising that MSD tents of Exhibit IDI4B in the the authority and/or integrity should have concluded or per- possession of the prosecution of the trial in progress. It must ceived that there was an at- at the material time, he should consequently follow, as night tempt to extract or extort evi- have been on his guard when follows day, that the charge of dence from Nalla on the part he read the letter dated 12th contempt against the Appel- of AGP. If there was, wherefore October 1998 written by MSD lant has not been proved be- can it be said that there had to the Attorney-General and yond reasonable doubt. been a full and free disclosure which should have prompted by Nalla? It would have been him as a senior member of the Excerpts From Judgment a clear contravention of the sec- Bar and an officer of the Court of Justice Haidar Mohd. Noor ond pre-requisite I spoke of a to alert MSD as to the folly of moment ago that the prosecu- his conclusions. With respect, In short, if the filing of the appli- tion has to act properly and such a stand could not have cation was prima facie justified fairly in seeking the coopera- been tenable as it would con- there could be no question of the tion and assistance of an ac- ceivably be premised on the appellant being liable for con- complice. Furthermore, there is wrong assumption that the ap- tempt of court for acting on the nothing to indicate or suggest pellant had accepted or should instructions of DSAI. In other that AGP had made any effort have accepted the truth of the words, the appellant could not be to determine whether or not contents in Exhibit ID14B. It is said to be reckless and negligent Nalla was in a position to give clear that the accused DSAI and acted in bad faith in filing the such evidence. If he (Nalla) was had, in the course of his trial, application as held by the learned unable to give the sort of infor- denied and/or disputed the al- High Court Judge and upheld by mation requested to the knowl- legation that he had had extra- the Court of Appeal. edge of AGP, then quite clearly, marital affairs with other this would be asking Nalla to women. As I said before, Hence, the question of undermin- give evidence which never ex- whether that denial and/or ing the authority and/or integrity isted - in short, to fabricate evi- dispute had any merit or not of the trial in progress did not arise. dence. In my view, evidence was beside the point. What I would add that the issue of trying should have been led to ascer- was significant was the fact to derail the trial also did not arise tain these matters by calling that DSAI had taken such a as evidence showed that the appel- MSD and/or AGP. They stand. The learned High Court lant was merely asking for a short should have been given the op- Judge had apparently failed to adjournment to prepare his de- portunity to explain. consider this material particu- fence, that is, just a few days. Surely lar and, as a result, had arrived justice should be accorded to him 10. In the circumstances, the view at a conclusion which, in my to do so as his liberty was as stake taken by the learned High view, was quite unsustainable and such an application should Court Judge that the request for in all the circumstances. not be viewed negatively by the information by AGP in this court as if to prevent or delay the case was an exercise of lawful 12. For the reasons stated, I must, course of justice. q

Aliran Monthly 21(6) Page 12 JUDICIARY

In Defence Of Justice Muhammad & Judicial Integrity by Kim Quek

ustice Muhammad’s and reports. To illustrate his courageous Judgment, point, he gave two personal expe- JJJ which exposed a ruling riences, one being his son apply- party - inspired massive ing for a temporary work permit, infusion of illegal immigrants into and the other his daughter apply- the electoral roll of Sabah, has ing for a scholarship for a one won the applause of the whole year post graduate course. In both Nation. His revelation of an ille- cases, there was no acknowledge- gal attempt to abort the hearing is ment from the government in spite a landmark judicial act that bodes of reminders. well for the new Chief Justice’s Arrogant noble vow to restore integrity to the fallen Judiciary. Trend To Ignore Muhammad’s motivation to make While the nation jubilates over the above observation must have ences were cited - not to express a this latest triumph of the righteous been obvious, if one reads through personal loss, but to reinforce his over the corrupt, the uncalled for his Judgment. Reading through view of an arrogant trend in gov- attacks by Mahathir and Rais ap- his Judgment, one cannot help but ernment to totally ignore public pear as a spoke in the wheel of feel the frustration in him, when complaints, which trend has pre- public expectations of judiciary he gave instance after instance of cipitated the electoral fraud that reforms and reveal in stark focus total non-response from various forms the subject matter of this who the real villains are in this government departments to nu- case. controversy. merous written complaints from Childish the public on phantom voters and The issues raised by Mahathir illegal identity cards. Making And Mischievous and Rais to malign Justice these complaints to the Govern- However, Mahathir chose to inter- Muhammad are trivial comments ment was like barking up a wall. pret Muhammad’s references to in the Judgment, taken completely Under these circumstances, can his son and daughter otherwise. out of context, and deliberately you really blame anyone for feel- Mahathir said: distorted and blown up to accuse ing angry and frustrated at such Muhammad of allowing his per- blatant irresponsibility of an It was obvious the Judge harboured sonal grievances to “tarnish the elected government? Wouldn’t ill feelings when he commented that image” of the entire Judiciary. Justice Muhammad be feeling the his son did not get good treatment reprimand of his own conscience, from the government. Other similar In the ending paragraphs of if he were to keep mum (particu- election petitions in Sabah have been Muhammad’s Judgment, he took larly out of timidity) over such a dismissed by other courts except this the opportunity to observe a “wor- heinous betrayal of public trust by Likas case. The Judge was obviously risome trend or culture” in the the Government? not happy with the way he was Government. He lamented the to- treated in Sabah. tal non-response of government It is within this context that departments to public’s letters Muhammad’s personal experi- It is childish and mischievous of

Aliran Monthly 21(6) Page 13 Mahathir to interpret dences galore indicate the existence toral boundaries. Muhammad’s references to his of massive campaigns to issue blue son and daughter as airing his identity cards to illegal Philippine And this is exactly what hap- “personal grievances”, imputing and Indonesian immigrants and pened. Through massive infusion improprieties into Muhammad’s the subsequent registration of these of illegal Filipino and Indonesian Judgment. It is also equally phantom voters in the electoral immigrants (who are all Muslims) wrong of Mahathir to implicitly rolls. In these illegal activities, and gerrymandering, Muslim ma- conclude that just because all the UMNO officials play a heavy role, jority constituencies in Sabah in other election petitions in Sabah abetted by the National Registra- the 1999 electoral roll had sud- have been dismissed by the courts, tion Department, the Election Com- denly and inexplicably increased Muhammad should also do the mission and the Police. within a short period of 5 years. same, unless motivated by im- proper personal reasons (such as Involvement of the highest au- Fooling The Public? personal unhappiness with the thorities in the National Registra- government as in Muhammad’s tion Department and the Election Returning now to Mahathir and case). Commission respectively in Kuala Rais’ concerted criticism of Justice Lumpur is indicated when the Muhammad, it is pertinent to note Massive Election former ignored completely written that Rais intimidated that he Crimes In Sabah complaints from Opposition lead- would take action through current ers in Sabah on cases of blue iden- Chief Justice Mohamed Dzaiddin Contrary to Mahathir’s implicit tity cards being issued to illegal Abdullah to ensure that the Likas assertion that the other election immigrants, and the latter gave case is not repeated. Rais said: petitions in Sabah have been strict directives to Sabah election rightly dismissed, Muhammad’s officials not to entertain any ob- Actually, what he did to me has dam- Judgment has opened up a new jection on tens of thousands of aged efforts by my department and vista of massive election crimes in dubious voters in the electoral roll the Judicial Department in rehabili- Sabah whereby tens of thousands that surfaced frequently. tating the image of the judiciary. of phantom voters consisting of illegal Philippine and Indonesian The question is: what motivated Rais, like his master Mahathir, immigrants uncovered in the trial these highest civil servants to must be taking the Malaysian are merely a “tip of the iceberg”, commit such treasonous acts public as fools, for making such to quote Muhammad. For that against the State in unlawfully preposterous and laughable com- reason, all the other election peti- admitting these tens of thousands ments and still expecting the pub- tions that have been dismissed of illegal immigrants as citizens lic to swallow them. previously are now suspect and and voters? Personal gain can be must be fully investigated with a ruled out, as these are more than Muhammad’s judgment of mas- view to uncover irregularities and offset by the heavy punishment sive electoral frauds is fully cor- tampering of justice. This is im- that can be meted out for such high roborated by witnesses and portant, particularly when crimes against the country. subtantiated by irrefutable and Muhammad has disclosed that unchallenged evidence in writing. other judges hearing similar elec- UMNO's Recruitment What has Rais got to say to that? tion petitions in Sabah had called of Phantoms In the eyes of Mahathir and Rais, him for advice regarding similar Muhammad’s wrong was that he telephone calls asking them to The only plausible explanation is had exposed the ruling party’s dismiss their cases. that this is the political strategy of unforgivable crime in robbing the the UMNO leadership to regain people of Sabah of their political On the issue of conspiracy, though political power in Sabah from the rights, and also the former Chief Muhammad has mentioned there Kadazan dominated PBS. How- Justice’s illegal attempt to tamper is no legal evidence to show the ever, there was virtually no chance with justice. existence of an agreement between that the UMNO-dominated the Prime Minister (or other Minis- Barisan Nasional could unseat Mahathir and Rais’ naked and ter) and the Sabah Barisan the PBS Government, unless there clumsy attempts to pressure the Nasional conspiring to register was a drastic restructuring of the new Chief Justice and the Judici- non-citizens in the electoral roll, ratio of non-Muslim to Muslim ary to toe the line is all too obvi- nevertheless, witnesses and evi- voters and a redrawing of the elec- ous. q

Aliran Monthly 21(6) Page 14 JUDICIARY

Phantoms On The Roll In Sabah Judgment by Justice Datuk Hj Muhammad Kamil bin Awang on Election Petition No K11 of 1999

28.1 The Electoral Roll names were deleted in List B.... 28.1.5.28.1.5.28.1.5. The petitioner, Chong Eng Leong @ Ching Eng Leong 28.1.10.28.1.10.28.1.10. There were (PWS), 54 years old and a surgeon 4,197 persons having by profession, stood as a PBS can- dubious identity cards didate in this election, and lost to (Exhibit P15) and the the 3rd respondent. petitioner had written a letter dated 20th 28.1.6.28.1.6.28.1.6. The primary contention April, 1999 to the JPN was that the certification of the about them but there 1998 Electoral Roll for Likas Con- was no response. Later stituency was fraudulent as there his counsel wrote a let- were illegal practices in the register (Exhibit P16) dated tration and preparation of the elec- 8th September l999 to toral roll.... JPN on the same subject matter and re- 28.1.7.28.1.7.28.1.7. The electoral roll for ceived the same treat- Likas Constituency was certified ment. by SPR in Decernber 1998. Prior to that date, there were 4,585 ob- 28.1.11.28.1.11.28.1.11. On another occasion he the State Election, and he received jections raised in respect of List A received from the public 36 cases objections from voters. He testified and 246 objections in List B. List of dubious identity cards (Exhibit that he received 4,585 objections A consists of names of voters in a P25 (1-36)) which names ap- to List A and 246 objections to List constituency... List B consists of peared in the electoral roll for B, Regarding the objections to List names of voters who had made Likas Constituency, and he A, there was no public inquiry applications for transfer of con- lodged a report with the police, held. The reason being that there stituency.... vide Kota Kinabalu Report No. was a strict instruction by SPR 1438/1999. It appeared that no that no objection to List A could 28.1.8. The petitioner testified investigation had been carried out be entertained except in cases of that there was no hearing in re- on the report. death or disqualification. The in- spect of the 4,585 objections in List structions were contained in A, and as such he made an ap- 28.1.12.28.1.12.28.1.12. The petitioner’s evi- SPR’s letters dated 7th and 8th peal against the non-hearing of dence found corroboration in the October 1998 (Exhibits P21 and the objections to SPR, Kuala testimony of the Pegawai P22) addressed to Pegawai Lumpur, which drew a blank. Pendaftar Likas, (Registering Of- Pilihanraya Negeri Sabah and all ficer Likas), Ewol B Muji @ Pegawai Pendaftar. A letter ref. 28.1.9.28.1.9.28.1.9. Of the 246 objections in Edward Ewol Muji (PW10). SPR(S)273/(42) dated 7th October List B, only 10 objectors were 1998 (Exhibit P22) addressed to present at the inquiry held on 15th 28.1.13.28.1.13.28.1.13. As a Registering Officer, Pegawai Pilihanraya Negeri November 1998. As a result 19 he registered electors (voters) for Sabah, which stated, inter alia:-

Aliran Monthly 21(6) Page 15 “2. Sukacita dimaklumkan in cases of death or disqualifica- port she was issued with a tem- bahawa Suruhanjaya Pilihanraya tion. Superior orders or state au- porary identity card, form JPN 1/ telah memutuskan bantahan thority are no defence to an action 9. It seemed that based on the same terhadap Senarai “A” 1997 tidak otherwise illegal.... police report No. 2429/98; seven akan diterima melainkan atas other people were issued with alasan kematian atau hilang 28.1.18.28.1.18.28.1.18. The SPR has to face the form JPN 1/9 (i.e.temporary iden- kelayakan. Ini bermakna truth. The 4,585 objections in List tity card)… bantahan kepada Senarai “A” A were cases of persons having 1997 yang diterima atas alasan- dubious identity cards or persons 28.2.328.2.328.2.3 In another election case, alasan selain yang dinyatakan who had been convicted of hav- No. K 1/99 before this court, the tersebut dari mana-mana ing fake identity cards. The peo- petitioner had notified the SPR pembantah ditolak oleh Pegawai ple who raised the objections that there were cases of the use of Pendaftar” .... were exercising their rights as citi- duplicate identity card numbers zens, and it is unthinkable that in the registration of names in an 28.1.14.28.1.14.28.1.14. The Pegawai Pilihan- the SPR should shut-off the objec- electoral roll [5 cases given] raya Negeri Sabah in its letter ref. tions in List A without a public PPN(O) 1/6(66) dated 8th Octo- inquiry. It is a constitutional 28.2.528.2.528.2.5 The Tawau Court had ber 1998 (Exhibit P21) conveyed wrong for SPR to have rejected the convicted the following persons the decision of SPR to all Pegawai objections outright. More impor- in 1996 for the offence of posses- Pendaftar (Registering Officers) tantly, it is wrong for SPR to allow sion of fake identity cards:- including PW10, as follows:- non-citizens and disqualified (3 names given)... persons to be on the electoral roll “ … dimaklumkan bahawa as voters. It appears that the certi- But their names were not deleted Suruhanjaya Pilihannya Malay- fication of the electoral roll for the and were still in the 1998 certified sia telah memutuskan bahawa 1998 Likas Constituency by SPR electoral roll for Likes Constitu- bantahan Senarai A Daftar is ultra vires the Constitution and ency. Permilih 1997 yang telah is in fact illegal. disahkan pada 31 Disember 1997 28.2.6.28.2.6.28.2.6. How easily many of the tidak boleh diterima kecuali atas 28.2 Identity Card Not immigrants, Filipinos and Indo- alasan kematian atau hilang Proof Of Citizenship nesians, had obtained citizen- kelayakan.” ships in this maner, i.e. through 28.2.1 The identity card is not their applications for identity 28.1.15.28.1.15.28.1.15. As a result, the petitioner proof of citizenship. It appears cards, was well illustrated by the and a few others made applica- that the SPR takes the identity card testimony of ASAINAR B tions to PWI0 appealing against as proof of citizenship and a per- IBRAHIM @ HASSAN, (PWll), a the decision not to hold a public son who produces a blue identity former District Chief for Bandar inquiry, whereby the applications card will be registered in the elec- Sandakan from 1982 - 1985. A sys- were forwarded by PW10 to SPR toral roll. PW10 (Pegawai tem which was established before (HQ) Kuala Lumpur (Exhibit P49). Pendaftar Likas) testified at the Malaysia Day 1953 where an ap- There was no response. trial that it was the normal prac- pointment of District Chief, a par- tice that the Pegawai Pendaftar allel appointment (a political ap- 28.1.16.28.1.16.28.1.16. PW10 further testified accepts for registration on the elec- pointment), vis-a-vis the District that he did not verify the identity toral roll persons who have blue Officer was appointed by the gov- cards during the registration of identity cards and also those with ernment PW11 was a Pegawai voters. It was not a practice that temporary identity cards, that is Perbadanan Kemajuan Sabah, he had to verify identity cards nor form JPN 1/9 and form JPN 1/ll. later Ahli Lembaga Bandar the citizenship documents of This has been much abused. For Sandakan and Ketua Daerah those people who wish to register example, INDAH MAHIYA BTE Sandakan in 1985. in the electoral roll. In other ABDULLAH had lost her blue words, PW10 just followed orders identity card and reported the loss 28.2.728.2.728.2.7 He testified that there of his superiors not to hold a pub- to the police, vide Report No, were two categories of applicants lic inquiry to an objection except 2429/98. Based on the police re- for the blue identity cards.

Aliran Monthly 21(6) Page 16 Those persons under 12 years old Indonesia and Philippines had years, holding the rank of DSP and who have birth certificates settled down. when he left the force in 1990 to have no difficulty in obtaining join politics. As the Secretary Gen- blue identity cards. Those above He observed that there were nu- eral of PBS he received a lot of in- 12 years old and who have no merous immigrants who had ob- formation and material of public birth certificates may obtain iden- tained blue identity cards in a rela- interest from members of the pub- tity cards by using form HMR 10 tively short time, 3 months or 3 lic, including documents of (JPN). This form is filled up by the years, while it took him 23 years pengundi luar or phantom voters. parents and submitted to the Dis- to change his Malayan identity trict Chief.... When PW11 was first card into an identity card of Sabah In early March 1999 he received appointed as the District Chief, he through the normal process. He via Pos Laju a box containing lists had no idea of what was going on testified that of the 43,000 new of names and dubious identity and he recommended, without Umno members recruited at the card numbers of 40,000 people question, the 1,000 and more of time, only 14,000 had genuine and he had forwarded them to the such applications that he received blue identity cards, the rest he did police, vide report No. 1061/99 from the Native Court and, on his not know how they got their blue dated 10th March 1999 (Exhibit recommendation, they were is- identity cards. P60). 31,845 names were found in sued with blue identity cards. He the 1998 electoral roll, of which said that “the main factor caus- From 21st October 1996 there was 2,975 names were registered in the ing loss to Berjaya Government in an exercise to recruit Umno mem- Likas electoral roll. 1985 to PBS was because Berjaya bers for 3 days which attracted leaders sold the rights of 10,211 new Umno members. They He lodged a report with the po- Sabahans to foreigners, totaling applied for identity cards, but lice, re: pengundi luar three times 40,000 by making them blue iden- only 180 applications for identity but unfortunately no action was tity cards, thus they became citi- cards from these members were taken. In particular, 12 fake iden- zens.” He was a Berjaya Party approved by Jabatan Pendaftaran tity cards were sent to the police candidate in Sungei Sibuga Con- Negara, and the rest were rejected. for investigation, vide report KK stituency in the 1986 State Elec- 1794/96 dated 18th January 1996, tion but lost. The instances of non-citizens and and 10 names appeared in the phantom voters in the electoral 1998 electoral roll of Likas Con- In 1998 it was alleged that he was roll as disclosed at their trial may stituency, N13.... involved in a project to process well be the tip of the iceberg.... and distribute blue identity cards Between 1996-1998 several people to illegal immigrants in Sabah, the The failure of SPR to maintain an were arrested under ISA for in- Filipinos and the Indonesians. On electoral roll in accordance with volvement in the issuing of fake 9th July 1998 he was detained the law makes the electoral roll il- identity cards: Mohd Agjan b under the ISA for 60 days and legal. Such is the case in the 1998 Ariff, Jabar Khan, Bandi Pilo and thereafter he was placed under electoral roll for Likas Constitu- Shamsul Alang - all from Sabah restricted residence for 2 years.... ency (N13). I would in the circum- Umno; and Mohd Nasir Sunjit, stances, uphold the petitioner’s Asbi b Abdul Karim, Jamah PW13 Mutalib Md Daud, is a petition that the 1998 electoral roll Ariffin, Asli bin Ariffin and Kee former Executive Secretary for for Likas Constituency (N13) was Dzulkifli b Kee Abdul Jalil - all Silam Umno Division and is still illegal. were officers in JPN Sabah. They a member of Umno. Mutalib was were involved in the Ops born in Kg. Lanai, Kedah and ini- Phantom Voters Gembeling. tially held a Malaya identity card. Operation Gembeling In 1970 he migrated to Sabah un- This operation called Ops der the “Untuk kemajuan Ba” Radin Malleh (PW14), a Member Gembeling whereby the JPN offic- programme and settled down at a of Parliament and the Secretary ers were asked to collect the village name Kg. Burong, Lahad General of PBS, holds a LLB de- names of the illegal immigrants, Datu where he found that a large gree from Kent University, and and with the aid of some political number of illegal immigrants from had served the police force for 20 leaders, they were given the blue

Aliran Monthly 21(6) Page 17 identity cards. PW14 had written he did not sign the letter (ID14) and water tanks; the more ambi- to JPN in respect of these illegal and he suggested that the signa- tious, built roads, canals, boats immigrants who were given blue ture was forged. This letter was and perahus. Some distributed identity cards (Exhibit P54) and distributed to all Umno branches money. The display of generous he also wrote to the Ketua in Sabah, and in the trial of three concern and care is a very wel- Pengarah Pendaftaran Negara persons (Exhibit P62) in Tawau come thing to the voters although Malaysia on 15th December 1998 High Court the Judge had accepted it happens at a five-yearly inter- before the electoral rolls were cer- the evidence of the accused that val, as a prelude to each election. tified by SPR on 31st December they were just following the direc- It is fast becoming a Malaysian 1998. There was no response. tions of a superior as contained way of life, a tradition as it were, in ID14. If ID14 carries a forged that prior to an election, contest- The target of this operation was signature, therefore it is a forged ing candidates will visit their con- the Malays of Bugis origin, and document. This is a serious alle- stituency with all types of gifts or these people formed an associa- gation, but why is it that PW17 presents in their endeavour to win tion known as Persatuan did not publicly disown it as or influence the voters to their Kebajikan Bugis Sabah. For exam- soon as he knew that ID14 had side. Whatever it is, there is not ple, Pirsing Siraji, 22 years old, been sent and received by all sufficient evidence before the court was in possession of identity card Umno branches in Sabah? Why to support the allegation of cor- No. H0481706, and his name was didn’t PW17 or Umno refute this rupt practices by the BN candi- found in the 1998 electoral roll (but at the trial in the High Court at dates. There was no specific with the identity card No. Tawau? ... But there is no evidence charge that could be brought H04817096) for Likas Constitu- of this alleged forgery (ID14) and against the 3rd respondent in the ency. It is noted that the Sabah it was never reported to the po- case. Corrupt practice is quasi identity card number has 7 digits, lice. Umno Chief Information Of- criminal in nature and the peti- Pirsing had an identity card ficer thought it fit to ignore and tioner has to prove beyond reason- number with 8 digits, and he was allow ID14 to be made use of ex- able doubt the offence of corrupt convicted by the court on 28th tensively, including in court pro- practice. In the case of WONG September 1992. ceedings, without taking any ac- SING NANG v TIONG THAI tion or step to deny or stop it. As a KING (1996) 4 MLJ 261, the court On 15th December 1998 when matter of fact, PW17 had made no held that there was no direct evi- PW14 wrote to the JPN for verifi- mention of ID14 at all in his affi- dence that the voters in the con- cation of the identity cards, there davit in Petition No. K 7/99. The stituency were in any way influ- was no response. On 7th October veracity of PW17’s evidence here enced by the gift. Therefore the pe- 1999 Hamid b Hassan wrote an is highly questionable. titioner had failed to prove beyond open letter (Exhibit P66) to the reasonable doubt the offence of Deputy Prime Minister - there was Corrupt Practices bribery or corrupt practices. no response. Or Bribery Conspiracy? As a Member of Parliament, PW14 The allegations of corrupt prac- raised this issue in Parliament, in tices or bribery made by the peti- “The gist of the tort of conspiracy a letter addressed to Setiausaha tioner in the petition were too gen- is not the conspiratorial agree- Dewan Rakyat (Exhibit P65) and eral in nature. PW16 testified that ment alone, but that agreement it was rejected under Rule 23(1)(f) days before the election day, many plus the overt act causing dam- as it was a secret matter which the candidates from various political age . . . . The tort of conspiracy, government could not disclose.... parties including the 3rd respond- however, is complete only if the ent and their supporters, visited agreement is carried into effect so PW14 referred to a letter (ID14) the constituency. Some brought as to damage the plaintiff.” per written by the Chief Information and distributed to the people food Salmon J. in MARRINAN v Officer Umno (Datuk Hj Karim bin stuff such as 25 kg rice each, milk, VIBARI (1962). 1 All ER p. 871. Abd Ghani) PW17, which was sugar, cooking oil and flour; some sent to 31 State Constituencies .... were supplied building materials Continued on page 23 PW17 in his testimony stated that such as zinc roofs, planks, boards

Aliran Monthly 21(6) Page 18 Nowhere in campus history has there been a hint that militant tac- tics were countenanced by student groups. Consider the fact now that the rising number of students being harassed and pillo- ried by various authorities have had the flimsiest of charges foisted on them. But the regime clearly wants to make a point. Two were detained under the ISA (though one was freed later after the release of the fire department’s report). Somehow their mere detention under this repugnant law, in the eyes of some, makes their pur- ported offence grievous. But this time, the tactic won’t work as over- use of the ISA makes it lose its stigma. The reverse is probably I’m waxing poetic these days. old faulty wires in the building true for Reformasi activists – ISA When all else fails in these trying were the likely cause of the fire. Of arrests have become signatures of days and frustration gets the bet- course thickness of face which heroism. ter of one’s social aspirations, po- comes with the years may save the etry (even bad poetry at that!) pro- day for the PM together with some Khairul Anuar Ahmad, the IKM vides great solace. String the head- future deft work by the police and student, makes history as the first ings together and you may get SB who are now doing their own student to be taken in under the something of a poem sans rhyme. investigations of the fire. ISA since promulgation of the Invoking poetic licence further, Universities and University Col- I’ve used the headings liberally to Whatever these latter findings, leges Act (UUCA). His alleged include all manner of commentar- many won’t believe that univer- crime: being vocal against the ISA. ies and stories directly or ob- sity students are today politically An ironic twist! liquely connected to their subjects. attuned to acts of terrorism, let For actual rhymes, do read the alone have the technical capabil- Mohamad Fuad Mohd Ikhwan, politically “incorrect” ditties, ity of a Timothy McVeigh. This the UM student, who was a vocal which follow. was exactly the opinion of a UM supporter of the VC when UMNO professor who on hearing about Q Q Q Q Q hacks demanded his resignation the DTC fire straightaway de- because of the DTC fire, was put duced that it had nothing to do The Old Man in for being allegedly “involved with the students nor the fact that Blows His Fuse in a Reformasi motivational work- the UMNO Puteri leader Azalina shop intended to spur reformists The PM has again put his foot in Othman and former youth chief and carry out plans to overthrow his not-so-proverbial mouth. I re- Rahim Tamby Chik were about to the government through street fer to the fire which razed the stage a forum on forging “ideal- demonstrations.” ( Malaysiakini, Dewan Tuanku Canselor (DTC) in ism, blah, blah, blah” among stu- 7/7/2001). Universiti Malaya (UM). Before the dents in the 21st century. Surprise, Fire and Rescue Department could surprise, they were inviting the The case of the two USM students ascertain the cause of the DTC fire, PM for the opening ceremony at facing disciplinary action is even he was already proffering his two- DTC. The fact that the fire oc- more ludicrous, although less se- bit opinion that students were be- curred a day before the staging of rious because the UUCA is used, hind the fire. The smoke is now the event was mere coincidence, not the ISA. Selling a few anti-ISA smothering his face after the de- averred the professor, or was it an stickers on campus was the osten- partment suggested that 40-year- act of God? sible reason for the potential dis-

Aliran Monthly 21(6) Page 19 missal of the students. Come on!! the government to douse student with its archaic philosophy and More insidious was the manner activism will galvanise the stu- racial politics can capture youth- in which one of the students was dents to even more protests. Such ful imaginations. nabbed. A plainclothes campus are the ironies of life and politics. security officer posing as a stu- Students these days are fired up dent purchased the stickers from Ironies I can take but plain vul- by two things (besides job pros- him and this constituted the case garity and sheer bad taste, please pects, that is): moral outrage and for the student’s offence. Talk spare me! How can anyone with reformasi. It’s encouraging that about a police state on campus! It an iota of culture think of celebrat- non-Malay students have often has long been known that inform- ing 20 years of reign of our offi- been active in pointing out the eco- ers and SB officers have routinely cially uncrowned monarch. (Re- nomic excesses of the ruling listened in on lectures to suss out member the joke that in the United groups. Islamic groups, for their lecturers but when the universi- Kingdom they change their pre- part, tend to gain support for their ty’s own campus guards take on miers every five years or so and criticism of the government’s un- the job of nabbing politically “in- keep their monarchs forever; in ethical behaviour. correct” students, we are sliding Malaysia, we change our mon- into a new world of surveillance archs every five years and keep Thus, Puteri UMNO’s thrust into altogether. our PM forever!) This sort of syco- the campuses, including its call phantic behaviour has made the for the UM VC to step down, and I think that the regime must be old man wax philosophic about its attempt to steal the limelight getting really desperate to pick on “not regretting” his actions of the (or the pants?) from UMNO Youth students this way. But there’s past. Even prophets and saints will probably yield poor results. method behind the madness, so regret that they have committed Which leads us to what the boys to speak. Students who since the some errors in their lifetimes and in UMNO may want to do – sing mid-1970s have not been a signifi- for that matter computers and au- lullabies? cant factor in politics could be tomatons also can get glitches, but said to be the backbone behind not Doctor M. The only glitch he Q Q Q Q Q Reformasi today. They also repre- will get is the itch to rule for an- Pemuda sent new or future voters. Herein other 20 years! Sings Its Lullaby lies the rub. Nip the movement in the bud before it grows. Accord- Q Q Q Q Q In one of his rare Freudian mo- ing to Malaysiakini, the pro-gov- Puteri Wears ments of creativity, UMNO Youth ernment National Malaysian chief Hishamuddin Hussein pro- The Pants Youth Association identified 10 posed a remarkable idea. Members student bodies with anti-govern- We return to Puteri UMNO and should use the UMNO anthem to ment leanings, including Gamis its brawny leader Ms Azalina. sing their children to sleep. That (Peninsular Islamic Students Coa- Apparently, the sprouting of a way, the love for UMNO will per- lition) and GMMI (Abolish ISA Puteri section of UMNO was to colate into the subconscious of a Student Movement). resuscitate the flagging support of new generation of UMNO sup- youth for the party. True to UMNO porters. Brilliant, Hisham! Was all There is also the off-campus double standards, while students of this something straight out from “Universiti Bandar Utama” have been asked to lay off politics Psychology 101 during university (UBU) movement, which stages by the authorities, Puteri UMNO days? If so, the psychology pro- dramas. Film director Hisha- was given free reign to sign up fessor would have given you an muddin Rais, now in Kamunting, members on campus. No doubt the “F” for such an infantile idea. is the alleged inspirer of the UBU. campus authorities will be ever so However, we’ll be more generous cooperative. here in Malaysia, given that It’s most heartening to see the blos- UMNOcrats are given special soming of multi-ethnic student Azalina’s foray into UM to stage grading dispensation, and pass movements of all sorts which are the aborted forum on student ide- you with a “D”. socially engaged. But that’s not alism was part of its campaign to how the BN regime sees it. My penetrate university students. But Actually, the idea will be good for guess is that the very actions of to what avail? Few believe UMNO Reformasi in the long run. Reverse

Aliran Monthly 21(6) Page 20 psychology teaches us that if you cable. Worse, he has left us with UTAR . This came as no surprise, keep telling your children to do several hot potatoes: MAS, really. Most people knew that TAR certain things again and again, Renong, Time dotcom and a de- College effectively functioned as they will react against them. Even- clining economy. a sort of university with twinning tually they will reject both the ex- programmes but the so-called po- hortation and the exhorter himself The real Houdini in Malaysia is litical coup was a good ploy to or herself. this man, who seems to be able to disarm Ling’s detractors in the make himself disappear at the party. This seems to symbolise the prob- most opportune of times. lem with UMNO Youth, loss of My concern is less with the fact political imagination (mind you, Q Q Q Q Q that we don’t have enough na- this could have happened even The MCA Cradles tional universities to cater for the eons ago before Hisham). In their All But Falls thousands of eligible Malaysians desperation they have turned over hungering for knowledge (or is it their pants to Puteri UMNO and One thing that won’t disappear a paper qualification), but the fact now, to make matters worse, want is the MCA and its problems. that by most accounts, our na- to take on the role of singing lulla- President Ling is still weathering tional universities continue to slip bies! the storm of the takeover of academically, professionally and Nanyang Siang Pau and China socially. Adding to their numbers By the way, the strategy misfired Press. Most accounts have it that merely compounds the problems and hit a most unlikely target, the tycoon Quek, who owned the pa- when we don’t address funda- former UMNO treasurer! pers before, was somehow arm- mental issue of a university’s au- twisted into giving away these tonomy to make academic deci- Q Q Q Q Q politically significant economic sions and to maintain political footholds within the Chinese independence. Daim Goes To Sleep community. It is also no secret that the hand that rocked this cradle Two newly announced policies, The redoubtable erstwhile, sec- is the same that rules the roost, if which will ensure the downslide ond-time finance minister has you’d allow my mixing of meta- are the proposed differential grad- taken flight and, with all the sooth- phors. ing system for Bumiputeras and ing UMNO lullabies lilting the air, the political screening of students has conveniently retreated into The MCA leadership’s split over and lecturers. The former policy deep slumber in a nowhere land. the takeover speaks volumes for will surely turn our universities Where is the man? Now that the this unpopular move and now into pariah institutions of higher economy is tailspinning, with that Nanyang Siang Pau sales learning world-wide. Worse still, only a 2 percent growth and have plummeted some 20 percent it is the most insulting thing yet Renong is being rescued yet after the takeover, the papers are that could happen to Bumiputeras, again, this time from a RM13 bil- likely to become economic alba- namely, a virtual admission of lion debt, where are you Daim? trosses for Huaren, the MCA hold- their innate academic inferiority. ing company, rather than cash Affirmative action in providing I find it unconscionable that fi- cows. It would be interesting if places for Bumiputeras can al- nance ministers can come and go MCA, like its political partner, ways be defended in that once as they please without a proper UMNO, ends up in the same pre- they get in, they are subjected to accounting of what they have dicament of holding on to a string the same universal academic been able to do or not do for the of unprofitable economic under- standards. But when academic nation during their term. Usually, takings. We have just seen what standards are adjusted for stu- a finance minister resigns when has happened with Renong. Will dents for no other reason than the his ideas and programmes to ac- Huaren go the same route? And, fact they belong to an ethnic tivate or uplift the economy fails will this route lead to political col- group, we are digging ourselves or he has serious policy disagree- lapse? I dream, as always…. deeper into the bottomless pit of ments with the government of the racist policies. day. Daim’s reasons for resigna- Meanwhile, Ling announced that tion remain opaque and inexpli- MCA would get a university – Q Q Q Q Q

Aliran Monthly 21(6) Page 21 Nursery Rhymes For Our Times And now, in the spirit of UMNO Youth’s call for Humpty Mock Zany sat on the wall lulling the whole nation into deep slumber, we offer Humpty Mock Zany had a great fall a selection of our own nursery rhymes. All the state’s coffers and all the PM’s men Couldn’t put Mock Zany together again There was a crooked PM Who had a crooked smile Three blind mice He hatched a crooked scheme (PAS, DAP, PKN) Against his crooked style See how they run He spawned some crooked cronies (for the elections) Who bled the country dry They all ran after the farmer’s wife(BN) And they all lived together Who cut off their tails with a carving knife(ISA) In his crooked monstrous palace Have you every seen such a sight in your life While all the people cry As three blind mice?

Two little judges PAS and DAP went up the hill Sat on the bench To resolve the Islamic state matter One named Jaka The moon fell down and broke its crown One named Paul The rocket came crashing after Damn him, Jaka! Damn him, Paul! Hey diddle diddle Great job, Jaka! The PM and the fiddle Great job, Paul! The MAS debt jumped over the moon The foreign dogs laughed to see such fun Umno Sprat could eat no fat And the Tajuddin dish ran away with the Daim Spoon His Renong wife could eat no lean And so between the two, you see (Take Two) They licked the EPF platter clean Hey diddle diddle Baa Baa black Petronas sheep The PAS and the fiddle Have you any oil? The DAP jumped over the moon Yes sir, yes sir The big BN laughed to see such sport Three billion barrels all And the PKN dish ran away with the PRM spoon One for my master Two for his cronies This little MCA went to the stock market And none for l’il Trengganu who didn’t go on its knees This little Gerakan stayed in Penang This little MCA had a newspaper stake Leong Sik had a little boy This little Gerakan had none Whose bank account was low on dough This little Quek laughed And everywhere that Leong Sik went Ha, ha ha His boy was sure to go All the way to the bank

He followed him to the exchange one day Rock-a-bye Bee Ann ruling the tree tops T’was against the rules, y’ know When the winds of change blow It made the punters weep and bray The cradle of power will rock To see the boy’s money grow When the bough of support breaks The cradle will fall Crony, Crony quite contrary And down will come Bee Ann cradle and all! How does your fortune grow? With phoney bonds and bankrupt companies D. L. DaunDaunD. And insolvent banks all in a row! Q Q Q Q Q

Aliran Monthly 21(6) Page 22 Continued from page 18 has no nexus to connect these to eration had been given. the fake identity cards sold. It is a Rgrettably this is the very antith- HALSBURY’s LAWS OF ENG- mere gimmick to lend legitimacy esis to good governance in as LAND, 4th Edition Vo. 45 p. 721 to these operations. It is incredible much as a threat to the govern- states that:- to say that the government is in- ment’s effort to foster good rela- “In order to make out a case of volved in a conspiracy to register tionship and integration between conspiracy the plaintiff must es- phantom voters especially as no East and West Malaysia. tablish - such agreement existed between 1 . an agreement between two or the government and the BN. It is It has been said that a government more persons; true that too many politicians and is a trustee of the people, and be- 2. an agreement for the purpose public officials have exercised ing elected by the people, it owes of injuring the plaintiff; and power and responsibility not as a a higher responsibility to the peo- 3. that acts done in execution of trust for public good but as an ple. The government must act hon- that agreement resulted in opportunity for private gains. estly and responsibly. damage to the plaintiff.” It has been brought to my atten- Directive Over Warrington LJ in DAVIES v THO- tion that the SPR has come up the Phone MAS (1920) 2 Ch. 189 said:- wtih the revised 1999 electoral roll ‘’That is to say, to be a conspiracy for Sabah in which more than The only guide to a man is his con- - that is an unlawful conspiracy, 19,900 names have been dropped science, the only shield to his one which gives rise to either an there from, presumably the names memory is the rectitude and the indictment or a right of action - it are those who have died and/or sincerity of his action. In my view, must have an unlawful object, have lost their eligibility to vote it is an insult to one’s intelligence that is, the act which it is intended as citizens. to be given a directive over the to bring about must be in itself phone that these petitions should unlawful, or, if not in itself unlaw- No Response be struck off without a hearing, ful, then it must be brought about and above all, it is with a presci- by unlawful means.” I seize this opportunity to record ent conscience that I heard these a few observations that a worri- petitions. God has given me the Lord Dunedin in SORRELL v some trend or culture, not borne strength and fortitude, as a lesser SMITH & ORS (1925) AC 700 held out of Malaysian culture, has mortal, to act without fear or fa- that an act that is legal in itself evolved where public institutions vour, for fear of a breach of oath of will not be made illegal because or government departments do office and sacrifice justice, and the motive of the act may be bad. not seem to care to respond to let- above all to truly act as a Judge ter or reports received from the and not a ‘yes-man”. I can find no evidence that there public. Such letters or reports was a conspiracy between the seemed simply ignored, invari- In conclusion, I would declare Government and the Barisan ably no response or acknowledge- that the 1998 Electoral Roll for Nasional (BN) at the highest level ment or receipt whatsoever has Likas Constituency (N13) is ille- as suggested by Mr Maringking. been made, for example, from per- gal, and that the election held in Not an iota of evidence to show sonal knowledge in a few cases; March 1999 for Likas Constitu- the existence of an agreement be- where my son had applied for a ency is null and void. I will in- tween the Prime Minister or any temporary work permit which form the SPR of this decision in other Minister with the Saban BN was refused, and I wrote an ap- due course. regarding the registration of dis- peal to the authority concerned; qualified persons or non-citizens and in another case, my daughter In Petition No. K.5 of 1999, costs in the electoral roll. The sem- had applied for a scholarship for to the petitioner against the 2nd blance of an agreement in the Op- a one-year post graduate course. respondent, and in Petition No. eration Gembeling or the In both cases there was no ac- K11 of 1999 costs to the petitioner ‘Mahathir’s Project’ where blue knowledgement despite remind- against the 1st and 2nd respond- identity cards were sold to these ers, although earlier on, personal ents. In both cases, costs are to be people at RM300 a piece, evidently assurances of favourable consid- taxed unless agreed. q

Aliran Monthly 21(6) Page 23 terminated by then Attorney- For the record, there have been Name Justice General Mohtar Abdullah Muhammad’s without the public being any • Justice Mohd Hishamudin Caller Establish wiser as to the truth of the alle- Mohd Yunus’s declarations Royal Commission gations. that the use of ISA is unlawful Of Inquiry • Justice Ian Chin’s decision • If at all a thorough investiga- protecting native customary tion was conducted into alle- rights of marginalized Aliran wholeheartedly applauds gations that lawyer V K Sarawakian communities, and Justice Muhammad Kamil Awang Lingam’s office was responsi- • Justice Muhammad Kamil for his honesty, courage and sense ble for drafting a judgment Awang’s nullification of the of public duty. made in a High Court case, the Likas election. result of the investigation has Justice Muhammad has been ad- not been publicly disclosed. The reputation of the Malaysian mirably honest a'nd courageous judicial system has suffered seri- in refusing to submit to a direc- • The investigation of allega- ous setbacks in recent years. Yet tive from someone supposedly his tions of improprieties and un- in recent weeks, honest, coura- superior in the judicial hierarchy ethical conduct linking former geous and impartial judgments to strike off, without hearing, the Chief Justice Eusoffe Chin with have been delivered. Likas election petitions. lawyer V K Lingam was also inconclusive. Whichever way the judicial sys- Equally Justice Muhammad has tem moves in the near future – to- demonstrated a high sense of pub- Consequently, the Malaysian pub- wards decline or resurgence – lic duty in refusing to cover up lic is by now sick and tired of hear- will depend on how much the that attempt to subvert the course ing allegations of tampering with problems of the judicial system of justice in one of the High Courts the judicial system that lead no- can be resolved, so that the rule of of the country. where – no cases, no culprits and law can operate freely and judges no penalties. can conduct their cases without However, the time for guessing fear or favour or directives. games is past. It would therefore make a complete mockery of Justice In the light of these developments, While it was entirely proper for Muhammad’s honesty, courage Aliran calls for the establishment Justice Muhammad to inform and sense of public duty if this of a Royal Commission of Inquiry Chief Justice Mohamed Dzaiddin latest episode of alleged judicial which will comprehensively and Abdullah about the ‘mysterious misconduct is allowed to die a without compromise investigate caller’ first, the caller’s identity quiet death. many of the outstanding allega- cannot be allowed to remain a tions of impropriety, misconduct mystery or a matter of speculation. That kind of quiet death is the and interference in our judicial NATO – ‘no action, talk only’ – system. The fact is, too many unsavoury kind that the public associates episodes that have struck at the with the Barisan Nasional gov- Only when the results of an inde- reputation of our judiciary have ernment’s reluctance or inability pendent investigation are made been allowed to remain unsolved to deal with the perceived rot known to the public can we ever mysteries. within our system of administra- hope to lay to rest the suspicion tion of justice. that ‘something is rotten in the To take some notable examples: House of Denmark’, to use one In the past few weeks, however, High Court judge’s warning about • The investigation of a surat several judges have shown that it the state of our judicial system. layang purportedly containing is possible for politically weak and a judge’s allegations of corrup- commercially powerless citizens to Aliran Executive Committee tion against other judges was obtain redress in our Courts. 12 June 2001

Aliran Monthly 21(6) Page 24 HUMAN RIGHTS The Judiciary And Human Rights When judges interpret a Constitution like a will, the Constitution will die by Tommy Thomas

he founding fathers of tion which provides that the Con- stitutional supremacy that the TT our Constitution envis- stitution is the supreme law of the deterioration in the protection of TTT aged the Malaysian judi- land and any law passed by Par- rights took hold almost immedi- ciary to be the bulwark liament which is inconsistent ately after Merdeka’. that protects and secures an indi- with the Constitution is accord- vidual’s fundamental liberties as ingly void. Early Human enshrined in Part II of the Federal Rights Cases Constitution. In other words, we have Consti- tutional Supremacy, just as in In- In 1958, two cases (Chia Khin Sze In their words: ‘The guarantee af- dia and the United States, and not v. Menteri Besar of Selangor and Re forded by the Constitution is the Parliamentary Supremacy as in Tan Kheng Long) first tested the supremacy of the law and the England. Or, as the celebrated re- constitutionality of executive ac- power and duty of the Courts to mark of Chief Justice Charles tions of detention and banish- annul any attempt to subvert any Hughes of the United States Su- ment. The court upheld the state of the fundamental rights, preme Court put it, ‘We are under action in both cases and set a trend whether by legislative or admin- a constitution, but the Constitu- which has continued virtually istrative action or otherwise.’ tion is what the judges say it is.’ unabated till today.

Hence, the Court’s first duty is to What have our judges said of our In the 1960s, the major human stand between citizen and State. Constitution since Merdeka? rights cases were Stephen Kalong Any citizen aggrieved with any Ningkan, Assa Singh and Karam decision of the State should be able In the early days of Merdeka, the Singh. The executive action chal- to turn to an independent judici- judges of Malaya seemed to have lenged in each case was based on ary for justice. Its second duty is to had philosophical difficulties in laws clearly inconsistent with the act as the sentinel of the Constitu- accepting their new role as the letter and spirit of Part P of the tion – to protect, preserve and de- guardians of the Constitution. Constitution. But the executive fend the Constitution from legisla- Perhaps that was because they action was upheld. tive or other attack. Its third duty is had been trained in England to interpret the Constitution. where Parliament is supreme. The Karam Singh case set a dangerous precedent by approving Constitution Indeed Rais Yatim, who evidently the entirely subjective discretion Is Supreme holds a different view of the Con- of a detaining authority. Since stitution these days, once wrote such discretion could not be re- These duties are consistent with that ‘it was partly because of this viewed by the Court, the ruling Article 4 of the Merdeka Constitu- initial inability to recognize con- eroded the liberty of an individual.

Aliran Monthly 21(6) Page 25 Arriving at this judgment, the Fed- Karpal, Theresa Lim was a victim in testing the validity of any state eral Court had followed the much of Operation Lallang who did not action which impacts upon any criticized majority decision of the receive judicial sanctuary. fundamental liberty, the Court’s House of Lords in Liversidge v. duty is to consider whether such Anderson while rejecting the vig- Nor was there any improvement state action ‘directly affects the fun- orous dissent of Lord Atkin which in the 1990s. Cases like Yong Teck damental rights or whether its inevi- had been accepted by most courts Lee, Tai Choi Yu, Pung Chen Choon, table effect or consequence on the fun- in the common law. and Liew Ah Kim did not give value damental rights is such that it makes to the Constitution’s guarantee of their exercise ineffective or illusory’ . The Worst Decade fundamental rights. State action which undermined those rights From the Privy Council came the The 1970s were the worst decade for was upheld in each of these cases. principle that a constitution the recognition and protection of hu- should not be construed rigidly or man rights by our Courts. In more Meaning Of Judicial with austerity; instead it should than 20 reported cases (mostly heard Protection be generously interpreted as be- by the Federal Court), every action by fits its special status and charac- the executive was approved and en- There were a few – too few – re- ter as a living constitution. dorsed by the Judiciary. Conse- ported cases in Malaysian consti- quently, by 1980, the Court decisions tutional law that gave meaning to Exceptions had collectively rendered illusory the judicial protection of human Not The Norm fundamental liberties conferred by rights. ISA detainees were re- Part P of the Federal Constitution. leased as a result of court deci- The Nordin Salleh spurred the sions in four cases, namely, Dato’ Court of Appeal, under the intel- The most extreme example was Amar James Wong Min Kee, Tan lectual leadership of Gopal Sri the case of Loh Wai Kong v. Gov- Boon Liat, Tan Sri Raja Khalid, and Ram JCA, and in a series of cases, ernment of Malaysia in which the Jamalludin Osman. In three cases to give expansive meaning to Con- Federal Court rejected a citizen’s (Teh Cheng Poh, Yap Peng, and stitutional expressions like ‘right right to have an international Mamat Daud), the Court struck to life and liberty’ and ‘equality’, passport, notwithstanding his down certain statutory provisions particularly in employment. right to liberty and the freedom of as being unconstitutional. Those cases form an impressive movement. Then Suffian LP de- body of constitutional law, includ- clared that ‘a citizen has no fun- I believe that the case of Nordin ing fashioning remedies when damental right to leave the coun- Salleh has made the single most fundamental rights were in- try and travel abroad … and he important contribution to the pro- fringed. does not have a right, not even a motion of human rights in Malay- qualified right, to a passport’. sia. This case, decided by a panel Yet the wise words of the Supreme of five judges in the Supreme Court in Nordin Salleh have not The Court’s failure to uphold hu- Court, struck down an anti-hop- been heeded in any of the contro- man rights against executive and ping provision in the Kelantan versial human rights cases of the legislative encroachment contin- Constitution as being contrary to past four years. ued in the 1980s, as was seen in the freedom of association guar- the cases of Merdeka University, anteed under Article 10 (1) (c) of Cases like Teh Cheng Poh, Nordin Sim Kie Chuan v. Pudu Prisons, the Federal Constitution. Salleh and Sugumar Balakrishnan Louis Cheah, Mark Koding, Karpal remain exceptional cases limited Singh, and Theresa Lim. This was a landmark judgment in to their special circumstances or which the Supreme Court ac- peculiarities. They are exceptions, In the case of Karpal Singh, the Fed- cepted liberal principles of consti- not the norm. eral Court overturned a Hight tutional interpretation pioneered Court decision to grant an order in India and the Privy Council. And their value as precedents has of habeas corpus releasing Karpal been diminished because most of from detention under the ISA. Like From India came the principle that our judges prefer the norm ex-

Aliran Monthly 21(6) Page 26 pressed in cases like Karam Singh, are also found in the European Theresa Lim and Phang Chin Hock. Convention on Human Rights, The Canadian Charter of Rights and in Any student of comparative law the human rights laws of Eng- LIBERTY will note there is not much differ- land, New Zealand, Australia ence between the civil and com- and South Africa. mercial laws of Malaysia and Liberty lies those of, say, England, Australia Strangely Malaysian judges have in the hearts and Canada, which remain im- yet to show much interest in legal portant sources for our laws. But developments in these countries of men and there is a wide divergence between with which we share a jurispru- women, the human rights laws of Malay- dential and constitutional tradi- sia and those of these other coun- tion. Until they do so, the practice when it dies there, tries. And this divergence doesn’t of constitutional law in Malaysia no constitution, arise because those others are will be a lonely practice based no law, ‘Western’ countries! upon narrow precedents that yield no joy to any supporter of no court The truth is, the fundmental rights human rights. can save it in our Constitution were worded very much like those in the 1950 The seeds of the Malaysian judi- Constitution of India. Yet the In- ciary’s unfortunate neglect of its Justice Learned Hand dian courts have gone much fur- constitutional duties to protect of the US Supreme Court ther in rejecting attempts by the human rights were sown in the Indian Parliament to amend the early days of independence. They Q Q Q Q Q constitution in ways that effec- have since taken deep root. tively destroyed the basic structure and features of the Constitu- But if we are not to continue tast- FUNDAMENTAL tion and abrogated human rights. ing the bitter fruits of that neglect, RIGHTS our judges must creatively and Creativity vigilantly defend human rights as AND And Vigilance enshrined in a living Constitu- LIBERTY tion. Otherwise, as when judges From early on, the pioneer judges interpret a Constitution like a will, of Malaysia rejected this creative the Constitution will die. q Fundamental and vigilant ‘basic structure’ doc- rights trine. Instead they gave the judicial imprimatur to Parliament to Tommy Thomas is a lead- may not be amend freely the Constitution. ing constitutional lawyer submitted The ironic consequence is, Parlia- in Malaysia. This article is ment, which is itself a creature of an abridged and revised to the vote; the Constitution, has been remak- version of Tommy Thomas, they do not ing its creator, the Constitution, ‘Human Rights in 21st depend on the however Parliament chose. Century Malaysia’, Insaf, The Journal of the outcome In these times, when people across Malaysian Bar, XXX, No. 2, of any election. the world are aware of universal June 2001, pp. 91 – 106. The rights and standards, it is useful full text of the original arti- to remember that the 9 Articles cle is available at Justice Robert Jackson of the US Supreme Court which form Part II of our Federal www.malaysia.net/aliran. Constitution are found not only in the Indian Constitution. They

Aliran Monthly 21(6) Page 27 ISA When Darkness Fears The Light Police breathe down heavily over an anti-ISA candle-light vigil by Our Correspondent

Outside the Lake Garden entrance to “Datang mahu bakar the Bukit Aman police headquarters ke?” (You’ve come here to burn something?”) 8.10 pm, Saturday, 7 July 2001 he said.

t was a clear evening “Ini bukan bakar, ini when the first candle menyalakan lilin untuk III was lit at about 8.10 pm vigil,” (“Not to burn just outside the Lake something but to light Garden entrance to the Bukit candles for a vigil,”) Aman police headquarters. About someone patiently explained. “Suara Rakyat” (the People’s 15 to 20 people were there. “Kita dah tahu awak nak buat joke Voice). I guess it has been a long ini, jadi tak funny lagi..sorry.” (“We while for the non-reformasi vigil- We first sat on the flower-bed ledge knew you were going to make this ers. Someone said that Jonah had on the corner kerb facing the main wisecrack, so it’s not funny all the songs. gate. Some friends came from anymore …sorry.”) work and brought their packed A friend gave a short speech in dinner. Most people seem to know He appeared to be more interested Bahasa explaining to the crowd, each other. There were several con- in my friend X who was clicking which had doubled (mostly news versations going on - which just away and spoke in a Chinese dia- people and their camera crew), tells you - people are comfortable lect to him. X is very friendly and why the vigil was being held - for with the company we keep! both of them appeared engrossed a friend, Khairul Anuar Ahmad in some intelligent conversation Zainuddin, or Jonah as he is Several plainclothes police per- for a time. known to many. It was very sad sonnel took their places in the that Jonah was not with us in the crowd. They stood out in their Two people sat at one end to draft crowd. Someone began the song, leather ‘tough guy’ jackets. Some a quick speech. Some reporters “Suara Rakyat” after the speech. tried making small conversation, interviewed several other people. “Kenapa lilin kuning?” (“Why the “How come no banners?” Some FRU police were lined up in yellow candles?”) or some lame front of the gate facing the crowd. thing. Well, because the notice said only They advanced, beating their candles and we have to respect the sticks on their shields. There were At about 8.15 pm. a guy with a yel- understanding that brought peo- about seven to ten of them. low jacket bearing the initials “DSI” ple together. came to the peaceful crowd. I It was most heartening to see that wished him good evening and “How about some songs?” the lyrics of the Suara Rakyat song asked him if he had had his din- were known to several of the cam- ner. Why? Because we are all model, Nobody remembered much. Two era crew/news people who led polite and civilised vigil-ers lah. of us knew the first two lines of the singing of the whole song

Aliran Monthly 21(6) Page 28 among the crowd! I had tears in friends with candles at the back minutes left.” my eyes. This was so amazing. of us. Jonah would have been abso- X had been taking pics all the time. lutely thrilled. All this police shouting tires you. When our time was up according It’s so uncool because you have to to the police, the guy with the pips We then stood in a line with can- shout to be heard as well. A friend and beret said to X, “I want to dles held high facing the gate. in line ‘shouted’ politely (we had question you. Who are you?” no choice but to shout, but we The DSI fellow came with another shouted politely) that we had Someone shouted, “Bebaskan (free) police chap with some pips on his every right to stay and that the Jonah! Bebaskan Fuad!” shoulder. This chap, his finger assembly was not illegal. He re- pointing to the crowd, walked up peated this. We came around X and our and down pronouncing, “This is friends refused to allow X to go an illegal assembly!” There were The cameras went clicking. The with the guy. I could have sworn the usual threats about arrest and chip (I mean pips) and beret guy X said ‘Never mind’ (meaning dispersal. pointed fingers everywhere. he would go with the police). I held onto his T-shirt sleeve ….ZzzZzZZzzz…. “If we have five minutes, are you while a friend decided that the going to whack us when we are police should know that we Plainclothes police lined up si- dispersing or are you going to give knew our rights and proceeded lently behind the line. They stood us time to disperse?” to say so. I can’t remember if she very close. Excuse me, we were not quoted sections of the Criminal even related! The DSI didn’t answer. Procedure Code. That was so impressive. The chap with pips and beret Was that incomprehensible? separated the line by telling re- Okay, let us try again. The ques- This went on for some time. porters, their crews and vigil-ers tion was repeated. “Matikan lilin! (extinguish the can- to stand away if they did not want dles!) Matikan lilin!” the DSI said. to be arrested. He was also very Finally he said that he would give But to no avail - because we had camera shy and shouted that pic- us time to disperse. to first sort out this matter involv- tures should not be taken. ing X with the pips and beret po- “Okay, how much time are you lice fellow. The plainclothes po- The DSI then said we had 5 min- going to give for dispersal? You lice stood so close behind us that utes. have to give us time and you can- we could have collided into them not go after us when we are dis- as we turned or could have easily “Thirty minutes” I said. persing and whack us because tripped over their shoes and bro- there are just too many news peo- ken a hip, man! “No, five” he said. “Are you speak- ple and its going to be bad public- ing for these people?” ity for the police.” So X came away with us un- scathed. We got into our modes of “Ya sure, why not? But hey, why “Don’t challenge me and ask me transport, with the police close on is that other guy harassing us questions,” he fumed. “This is an our heels. The cars then left, some when you said we have five min- illegal assembly.” hooting “Re-For-Ma-Si”. I looked utes? Who is in charge here? You at my watch. It was 8.55 pm. or him? If you said five, tell him to “Well you are standing here with stop harassing us.” us; you are in an illegal assembly Thank you to all friends and sup- as well.” porters who came with us for Plainclothes police now stood at Jonah and to all mahasiswa yang the side and at the back of the line. He shouted, “I am in uniform and digugat oleh ISA dan UUCA (uni- I think there were about five to performing my duty..blah.. versity students threatened by the seven friends in that line. I cannot blah...blah. Arrest this one first if ISA and the Universities and Uni- remember if there were other they don’t leave. You have three versity Colleges Act). q

Aliran Monthly 21(6) Page 29 ISA When Two’s A Crowd

Candles broken into pieces during vigil for Jonah outside police station by Our Correspondent

Outside the Dang Wangi There were about 13 police station people who gathered 8.45 pm, Thursday, 12 July 2001 at about 8.45 pm outside the Dang Wangi uly 12 marked the 7th police station to com- day of the arrest of stu- memorate the arrest JJJ dent leader Khairul of Jonah today. Anwar Ahmad Zainud- din (Jonah) under the Internal Se- One plainclothes po- curity Act (ISA) which allows for lice carried a loud- preventive detention without trial. hailer but it was evident that his two su- Jonah was arrested at the Dang periors (they cer- Wangi (Jalan Stadium) police sta- tainly acted as such) would have The officer corrected me on that. tion on July 5 at about 9.45 am no need to use it. Both of them while accompanying six other used the olde worlde police tech- I asked him if he knew the plain- students to the station. The six nique of shouting in your face. clothes police officer and ASP Ng were arrested on June 8 but were confirmed that the person was released on police bail about 24 One of the officers who broke all “my boss.” hours after their arrest. Police bail my candles (and hurt my hands requires reporting to the police in the process) was in plain- At some point, my friends and I station periodically until such clothes and shouted incessently requested that ASP Ng and his time when the police decide to re- about illegal assemblies in an at- boss be calm and don’t panic as lease the person from bail or to tempt to confuse and scatter they were both talking at once have him or her charged for a those keeping vigil, who were while we were trying to explain crime. predominantly women. He re- to the police what we were doing fused to identify himself at my and to clarify their erroneous im- The second candlelight vigil for request. pression that we constituted an Jonah and fellow detainee, M. illegal assembly. Fuad M. Ikhwan this evening was I did tell him that I found it odd rudely interrupted when some 40 that he was carrying on like this “Do you know, “ said the boss, police personnel comprising FRU without having the courtesy of “that five is an illegal assembly? police, plainclothes police (in- introducing himself. There are more than five of you cluding females) and at least one here.” in uniform (ASP Ng) rushed to He said, “There is no need.” those keeping vigil. They grabbed ASP Ng, who had done more home- the candles off their hands and I found it rude. I said so to ASP work this evening, said that three broke them into bits and pieces. Ng whom I called Inspector. constituted an illegal assembly.

Aliran Monthly 21(6) Page 30 candles and I am two is an assembly and (that it) is not in an assem- illegal. I would have to file a com- bly.” (Not by any plaint with Suhakam and com- stretch of imagina- plain to the Bar Council as this is tion.) not so under the law,” I said.

“What are the rest The boss said that he did not say doing here with that. “That is your right to com- you then?” plain,” he said.

My friend replied “Our right is to gather peacefully,” that they were not we said. in an assembly “Yes,” I said and volunteered the with us. They were standing “You guys are a riot,” I said. names of the relevant laws: the apart, if need be two-by-two. Penal Code stipulates five people I believe that friends who had while the Police Act stipulates The police duo were not budging. stood away from us were also har- three people. We know our law as assed similarly. The police had well. I said that two of us would stay surrounded us of course. But the here to do a vigil and the others thing is none of us who were there We could just be meeting to decide could stay across the road (and was afraid of this show of force. I whether to have dinner at Bangsar maybe you guys - police - could think it was because we knew or Brickfields and using candle- go across the road as well?) and what we were about and police light to look up directions on a allow the two of us our right to intimidation was not getting any- map and got cited for illegal as- gather peacefully on this side of where. sembly, right? You see how worri- the road? some this whole police attitude is? I think we managed to light the My friend told the police duo that “How many more times do we candles for less than five minutes there were only two of us and two need to say that this is illegal,” before we were rushed to end the was not an assembly and not ille- said the plainclothes police with vigil. gal by any means. the loudhailer. As we were leaving the pavement, “No you cannot do that,” the boss “Hey, I know you,” I said. “You there was a shout, “Bebaskan said. are from Bukit Aman last Satur- Jonah! Bebaskan Fuad! Mansuhkan day.” ISA!” “That is not illegal nor an assembly,” we said. “No, this is my station,” he said. Next time we have to add, “Hidup He was not getting any action to- Mahasiswa!” (Long live the uni- “What is the candle for then?” the night as his two bosses were in versity students!) q boss queried. town today.

Now one would think that we did I wonder if these not have to go over this carefully. were the police The point is, if two is not an as- personnel re- sembly under any law, whether sponsible for we have candles or not would be dragging Jonah totally inconsequential. But they into the police were not getting it. station on July 5. “I would have to “You have damaged my prop- report that both erty,” I said. “You broke all my of you claim that

Aliran Monthly 21(6) Page 31 With the drift towards markets and profits, the interests of sections of society who fall outside the elite’s sphere of influence have been increasingly neglected and stifled.”

It is therefore crucial to allow for a multitude of independent media to provide for alternative channels for expressing the aspirations of an economically and socially diverse and plural society.

We therefore call on Hume to carefully weigh all factors, including the larger interests of media freedom, before making any decision A record of Aliran'sAliran'sAliran's stand on current affairs. to sell Nanyang. We also hope that other organisations, including the A Blow For Media tions may find themselves shut National Union of Journalists, will Freedom If Star Buys down or gobbled up by pro-estab- raise their voice in defence of me- Nanyang Press lishment individuals, firms, or dia freedom, which appears to be political parties. increasingly threatened. Charter 2000 views with concern recent news reports that suggest Charter 2000 calls for the democ- Anil Netto that Hume Industries may be sell- ratisation of the media in its first Joint Coordinator, Charter2000 ing its controlling stake in principle, which states that the 22 May 2001 Nanyang Press Holdings Bhd, the media must not be the monopoly publisher of Chinese-language of political parties and commer- All Barisan National dailies Nanyang Siang Pau and cial interests allied to them. Leaders Have China Press, to Star Publications. The Same Disrespect Instead, the Charter states that For Rule of Law These reports are of concern as the “an adequate legal and economic Chinese language press has been framework must be established to Aliran condemns the two-year known for relatively independent facilitate and reinforce universal detention orders made under ISA reporting that has at times embar- access to and ownership of alter- against Tian Chua (Parti Keadilan rassed the Malaysian Chinese As- native, participatory, democratic, Nasional vice-president), Mohd sociation (MCA), a ruling coali- independent media.” Ezam Mohd Nor (Keadilan Youth tion partner, and the government. chief), Haji Saari Sungib This more independent reporting The political and civil rights es- (Keadilan Supreme Council mem- is in stark contrast to the Star, a pecially those related to the guar- ber) and Hishamuddin Rais (me- solidly pro-establishment English anteeing of open discussion, de- dia columnist and social activist). daily, controlled by Huaren Hold- bate, criticism and dissent are cen- ings Sdn Bhd, the MCA’s invest- tral to the process of generating The detentions of these three ment arm. We question the motive informed and considered choices. Keadilan leaders and one promi- for any sale of Nanyang Press, if These processes are crucial to the nent social activist are contempt- the media reports on the deal are formation of values and priorities ible. Despite alleging all kinds of accurate. and can help in assessing and threats against national security finding solutions to social, eco- to justify the arrests that began on In principle, we are against the nomic and political problems. 10 April 2001, and despite inter- monopoly of the media by politi- rogating the detainees for nearly cal parties and commercial inter- The Charter also notes that in re- 60 days, the Police evidently have ests. We are also concerned about cent years, “the media have be- nothing that they can prove or the diminishing space for inde- come increasingly corporatised in defend in an open court. pendent reporting. Even slightly tandem with greater control by critical or independent publica- political and economic interests. Continued on page 37

Aliran Monthly 21(6) Page 32 OBITUARY A Lifelong Commitment To The Poor Remembering Prof Ishak Shari (1948-2001), one of Malaysia’s leading researchers into poverty and marginalisation in society

1960s and early 1970s, he be- (LSE) in 1970 and 1972. In 1985, came one of the active student he obtained his PhD in develop- leaders who helped define the ment economics from Universiti moral and intellectual horizon Malaya and moved on to an illus- of Malaysian student politics in trious career at Universiti England during that period. Kebangsaan Malaysia (UKM). That early moral and intellectual integrity and social commit- Starting as a lecturer in 1972, he ment never left him throughout rose within the ranks to become the course of a long and illustri- Professor of Development Eco- ous career. nomics in 1991, Dean of the Fac- ulty of Economics (1988-1990), His early work on poverty in the and Dean of the Centre for Gradu- traditional fishing sector, the fo- ate Studies (1994-1997). cus of his PhD dissertation, was a rofessor Ishak Shari, reflection of this understanding of In 1997, he was appointed Direc- PPP noted Malaysian Malaysian social science in the tor of the Institute of Malaysian PP scholar and economist, service of a developing nation. and International Studies passed away on the Throughout his life, this commit- (IKMAS), a social science research morning of 30 June 2001, hardly ment to the poor and the institute at UKM, a post he held two weeks after he underwent marginalised was to inspire his until his untimely death. Ishak’s major surgery for cancer. Born on teaching, research and writing. leadership helped turn IKMAS 4 January 1948, he was only 53 into a respected regional centre for when he died. Aware of the changing global globalisation and transformation landscape, he consistently drew studies. Coming from a humble family attention to issues of inequity and background, and growing up at was also concerned, in his later Although trained as an econo- the same time as his country did, work, with the onslaught of glo- mist, Ishak always transcended he entered the world of scholar- bal neo-liberalism and unfettered the confines of his discipline and ship with a deep and life-long economic liberalisation. embraced the social sciences as a commitment to a vision of a whole. Standing for the integra- shared and just future. Ishak obtained his BSc (Hons) tion of the social sciences, he was and MSc in economics and statis- firmly against their fragmentation Shaped by the intellectual and tics from the London School of and compartmentalisation and political ferment of the late Economics and Political Science translated this stance not only

Aliran Monthly 21(6) Page 33 through his position as IKMAS housing. He observed that it was Ishak was a star in the commu- Director, but also through his in- easier for the urban underclass to nity of scholars and intellectuals volvement in the reform of social- compare their plight with their in the region. He was appointed science teaching and research in well-to-do neighbours as they Chairman of the Selection Com- UKM. were right next door to them. Such mittee of the Southeast Asian comparisons, he noted, invariably Studies Regional Exchange Pro- A careful, meticulous scholar who led to resentment and to a height- gramme (SEASREP) and Joint could read statistics, and as im- ened sense of deprivation among Chair of the Executive Committee portantly, interpret them, with a the underclass and in such de- of the Asian Public Intellectuals practised eye sharpened by sus- pressed settings, all it needed was Fellowship Programme (API Fel- tained reading of theoretical litera- a small issue to spark off ill-feel- lowship), launched in July 2000. ture, Ishak developed into one of ings or conflict. Ishak was also a prime mover of Malaysia’s finest development the Southeast Asian Public Intel- economists and a leading author- Ishak emphasised the need to de- lectuals Fellowship (SEAF) Pro- ity on national income distribu- velop social safety nets for the poor gramme. In 1996, he was awarded tion and social transformation. and other vulnerable groups. a fellowship in the Asia Leaders’ Apart from economic develop- Fellowship Programme (ALFP). In the past few years, and in line ment, he believed that “the capac- with his concern with the whole ity to bring about a condition It should also be mentioned that person, he further broadened his which empowers people to raise Ishak was a member of Parti studies to cover cultural issues. their creativity is no less impor- Rakyat Malaysia. Although he Within this framework, he drew tant”. did not hold an official party post, attention to questions of culture he served as Chairperson of without divorcing them from eco- This commitment to the PRM's Congress in recent years. nomics; in this manner he empha- marginalised was evident in his His quiet, but steady contribution sised the role of civil society in its role as Director of IKMAS. He con- to PRM has also been much ap- broadest sense. stantly guided his colleagues to preciated. focus their investigations and In his Inaugural Lecture of 1999, writings on IKMAS’ central re- For all his achievements, Ishak he reiterated “the proper relation- search area - the impact of was utterly devoid of any airs. ship between market, state and civil globalisation on the Malaysian One of the things that struck those society needed to realise a world for nation and society and how best who met him was his simplicity all humanity has to be thought to manage it to nurture and pro- and humility. Indeed, he seemed through by all who desire justice, mote national resilience and so- to dislike formal functions and freedom and peace.” The title he cial cohesion. after attending one such function gave to this lecture, The Earth for immaculately attired in a busi- All Mankind, encapsulates the Ishak’s work was recognised ness suit, he remarked that he felt belief which had driven his both within the country and uncomfortable in such settings. scholarship and his under- abroad. He was appointed as standing of scholarship as a consultant to many important He will always be remembered as form of service to humanity. projects by the government and a true friend and a leader whose international agencies such as gentleness, generosity, patience, When the Kampong Medan dis- the World Bank and the United cheerfulness, openness, optimism turbances erupted recently, Ishak Nations Development Program and unfailing concern for the observed that the attacks took (UNDP). He was a past presi- progress and welfare of his col- place in one of the most depressed dent of the Malaysian Social Sci- leagues and wards was unparal- areas around Kuala Lumpur. ence Association and was ap- leled. “These areas are usually oppres- pointed as an expert to the Sec- sive,” he said, pointing to the ut- ond National Economic Con- He was industrious to a fault, ter lack of amenities and proper sultative Council (NECC II). with little care for himself not even

Aliran Monthly 21(6) Page 34 when ill. Ishak leaves behind his Continued from page 32 Dr Mahathir’s notorious depend- wife, Rashidah Md Dali, and five ence on ISA is already well known. children. Some people thought, however, The detentions of Tian Chua, Minister of Home Affairs Mohd Ezam, Haji Saari and Abdullah Ahmad Badawi was His passing is not only a huge Hishamuddin are also cowardly. ‘different’. loss to IKMAS and UKM but to They are merely desperate acts of society in general. His inspiring political persecution ordered by a If he was indeed different from his academic leadership in analysing Barisan Nasional regime that no mentor, Abdullah Badawi would the causes of marginalization, longer has any just or democratic have accepted that Justice response to legal and legitimate poverty and oppression will re- Hishamudin’s judgment had de- challenges. molished all justifications for main as a shining example of how ISA’s continuing existence. After an academic can promote a The Malaysian people aren’t so all, when the arrests were first deeper understanding of society’s stupid or blind as to be distracted made, Abdullah Badawi had tried woes, and in the process, help in by Dr Mahathir Mohamad’s lat- to distance himself by claiming ig- the discovery of fresh solutions. est sandiwara just because Dr norance of the Police moves. Mahathir and UMNO are faced with severe internal divisions. Ishak chose the following words But by signing the two-year detention orders against Tian Chua, Mohd of Iqbal to conclude his Inaugural After laughable denials of his res- Ezam, Haji Saari and Hisha- Lecture. His choice reflects the soul ignation as Minister of Finance, muddin, Abdullah Badawi has of the man who has departed from Daim Zainuddin has quit either proven to all Malaysians that there us with such suddenness: out of unpopularity, or because he is no ‘lenient side’ to ‘Pak Lah’. no longer serves Dr Mahathir’s The journey of love is a very long purposes, or both. With its annual By choosing to ignore Justice general assembly looming, Hishamudin’s historic judgment, journey but sometimes with a sign UMNO has tried to refurbish its Abdullah Badawi has shown that you can cross that vast desert. Search shabby image by suspending sev- he is no different from Dr and search again without losing hope. eral divisional chiefs on charges Mahathir when it comes to au- You may find sometimes a treasure of ‘money politics’. thoritarian rule. on your way. Outside UMNO the pressures Malaysians should not place any May his soul rest in peace. q have increased. The opposition hopes in the supposed differences has grown in strength and so- between one or another BN leader. phistication. The post-September As the apologetics of dissident- 1998 dissent persists because it turned-minister Rais Yatim amply This piece was largely was never something that was in- demonstrate, BN leaders are all compiled from three sepa- stigated by a few individuals. the same in their habitual disrespect for the rule of law. rate tributes paid by: There was no visible public sup- • The Institute of Malay- port for the ISA arrests. But there For the sake of Tian Chua, Mohd sian and International was plenty of opposition coming Ezam, Haji Saari and Hishamu- Studies (IKMAS), from political parties, NGOs, ddin, and all other prisoners of UKM SUHAKAM and ordinary people conscience and ISA victims, • Prof Dr Abdul Rahman who rejected the regime’s repres- Malaysians who are committed to Embong, President, sive rule. Democracy, Justice and the Rule Malaysian Social Sci- of Law must continue the strug- ence Association The clearest rejection of ISA came gle against ISA and BN’s repres- from Justice Mohd Hishamudin sion. • Participants of Mohd Yunus who declared in the IKMAS’ inaugural Shah Alam High Court on 30 May IMMEDIATELY RELEASE ALL South-East Asian Fel- 2001 that the detention of N ISA DETAINEES! lowship (SEAF) pro- Gobalakrishnan and Abdul ABOLISH ISA! gramme, 2000 Ghani Haroon was unlawful, the Police had acted in bad faith, and Aliran Executive Committee Parliament should review ISA. 4 June 2001

Aliran Monthly 21(6) Page 35 WOMEN Zero Tolerance For Domestic Violence

Does a woman have to be bruised and bleeding before her abuse is taken seriously? by Prema Devaraj

he other day a woman knowledging police frustrations taken seriously? TT went to a police station over workload and women retract- TTT to make a report. She had ing their complaints over domes- The Malaysian government is a been hit her on the head, tic violence, one is left wondering signatory (albeit with reserva- had had her hair pulled and had about the effectiveness of the DVA tions) to the United Nations Con- been slapped around the face by when enforcement authorities can vention on The Elimination of All her husband. This apparently hold back an IPO on the (subjec- Forms of Discrimination Against was not the first time. However, tive) basis that the injury is not Women (CEDAW). In Article 1 of when she requested that the po- severe. One is also left wonder- the Convention, ‘discrimination lice issue an Interim Protection ing how enforcers define violence against women’ is defined as any Order (IPO), she alledged that she and, more importantly, about the distinction, exclusion or restriction was informed that her injuries ideology that accepts a certain made on the basis of sex which has were not severe enough (no bruis- level of violence in a household. the effect or purpose of impairing or ing) to warrant such an action. nullifying the recognition, enjoyment The attitudes of regarding or exercise of women, irrespective of The Domestic Violence Act (DVA), women as subordinate to men their marital status, on a basis of enacted in 1994, at last recognised perpetuates widespread vio- equality of men and women, of hu- domestic violence as an issue of lence against women, including man rights and fundamental public concern. Its main aim is to family violence and abuse. Such freedoms in the political, economic, ensure the safety of victims of vio- an attitude (which make many social, cultural, civil or any other lence. Under the DVA, a person men think they have a right to field. can seek assistance from the po- hit their spouse) means violence lice by making a report of the as- against women is excused (and According to the General Recom- sault and specifically asking for even accepted) by society. Some mendation No. 19 (Eleventh Ses- an IPO. The IPO is an order from may even argue that ‘it’s for her sion 1992) Violence Against the court which protects the per- own good’. What is implicit in Women, this definition of ‘dis- son from further violence while these prejudices and practices is crimination of women’ in Article the police carry out an investiga- the unspoken acceptance of a 1 of the convention, also includes tion. certain level of violence in a gender-based violence, that is, household. If a few slaps do not violence that is directed against a The police, the welfare and court amount to violence, how many woman because she is a woman or that authorities’ awareness of domes- slaps does it take? Does a affects women disproportionately. It tic violence is vital for the imple- woman have to be bruised and includes acts that inflict physical, mentation of the DVA. While ac- bleeding before her abuse is mental or sexual harm or suffering,

Aliran Monthly 21(6) Page 36 threats of such acts, coercion and other deprivations of liberty. Takeover Of Chinese Newspapers

As a signatory to CEDAW, the Not Just A Chinese Issue Malaysian government is legally bound to put the provisions in this e, the undersigned or- only allowed to publish twice a convention into practice. It is so ganizations, oppose month. Nanyang Siang Pau and obvious that while having legis- WWW Hume Industries’ sale of China Press are daily, mass circulation is the first step forward, it its controlling stake in lation newspapers. It is quite un- is simply not enough. How com- Nanyang Press Holdings Bhd, the likely that the Home Ministry will publisher of Chinese-language now allow opposition parties to mitted is the government towards dailies Nanyang Siang Pau and publish a daily newspaper. Sec- truly deterring violence against China Press, to Huaren Holdings ond, under existing restrictions, women? Setting up a Ministry for Sdn Bhd. opposition newspapers can only Women and Family Affairs will be be sold to party members and can- a waste of time, money and effort The takeover of Nanyang and not be sold publicly, again, quite if there is no clear commitment to, China Press is not just an issue unlike mass circulation newspa- and understanding of, CEDAW affecting Chinese Malaysians. pers. Third, parties like MCA and and issues relating to gender- Rather it is of concern to all UMNO already have their own based violence. Malaysians who cherish free- official party newspapers. Finally, dom of expression. Malaysians it is extremely difficult for inde- It is often the case that when there of all ethnic and religious pendent publishers to obtain a groups should oppose this deal, permit to print. is a horrible rape and murder of a which further undermines young woman or child, everyone what’s left of our democracy and Despite what we have been told, gets upset. Calls for action to stem its fast disappearing system of the takeover is definitely not a this violence come from every checks and balances. pure business deal. It has huge quarter. But meanwhile, what political implications. The MCA about all the unreported daily The Chinese language press has is obviously hoping to use the cases of rape, molest and domes- been known for its relatively in- Chinese press to mould public tic violence? All are part of the dependent reporting in stark opinion within the Chinese com- daily parcel of violence against contrast to the Star, a solidly munity and to repair the damage women; all contribute to the deni- pro-establishment English daily done by the ruling coalition’s con- gration of women; and yet, the controlled by Huaren, the in- troversial policies and statements. vestment arm of the Malaysian The takeover itself greatly reduces authorities (by their inaction) and Chinese Association, a partner the already little space for inde- society (by their attitudes) allow in the ruling coalition. Already pendent newspaper reporting. some of this to continue. we hear that top management and senior editors at Nanyang We call on all Malaysians to op- We need to assert that there can and China Press have been pose the takeover of Nanyang and be no acceptable level of violence. asked to leave. They are likely China Press on the grounds that We need to assert that we will not to be replaced by pro-MCA per- it demolishes further the notion of tolerate violence. We, as a society, sonnel. press freedom and leads to a fur- must work towards giving our ther erosion of democracy in Ma- women the security and protec- It is grossly inappropriate to ar- laysia. Given that much of the tion of the law which they, as peo- gue that PAS has Harakah and mainstream media is already po- the DAP has the Rocket, hence litically owned or linked, it is vi- ple and as Malaysian citizens, it is all right for MCA to control tal for Nanyang Siang Pau and deserve. We must continue pres- two mass circulation Chinese China Press to remain relatively surising the Government to fully newspapers in addition to a na- independent of partisan interests. recognise the basis of CEDAW tional English daily. and the effects of violence against Charter 2000/Aliran women. The principles and objec- Under the existing law, opposi- Pertubuhan Jemaah Islah tives of CEDAW and the DVA tion political party publications Malaysia (JIM) must be fully implemented. q like Harakah and the Rocket are 30 May 2001

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Aliran Monthly 21(6) Page 38 THE UEM TAKEOVER: Continued from page 40 this concentration of political allies. When Deputy Prime Min- through a spate of acquisitions, power can have on the issue of ister and Finance Minister Anwar funded mainly by loans from gov- property rights involving assets Ibrahim was ousted from office in ernment-owned financial institu- owned by businessmen in the cor- 1998, his business allies quickly tions. But in spite of its huge size, porate sector. lost their corporate assets — most Renong acquired little expertise in of which were then channeled to any industry. There was no at- Simply, the UEM takeover and businessmen aligned to Daim. At tempt by the government to disci- concentration of political power the time, he had emerged, along pline or check Renong’s unpro- draws attention to the issue of with Dr. Mahathir, as one of the ductive form of corporate devel- ownership and control of domes- most powerful politicians in the opment. In fact, government aid tic firms. In Malaysia, even major- country. in various forms to Renong was ity ownership of a company justified on the grounds that it means nothing in the face of a While the selective imposition of served the national interest. strong state determined to push regulations on some enterprises through government policies or has helped create the impression In The Public Interest? corporate restructurings. The of a well-governed corporate sec- point is relevant to the UEM case, tor, a number of oddities continue What can we expect from corpo- but is also evident in the consoli- to occur — especially in the cases rate restructurings now that Dr. dation exercise involving the of companies linked to Daim’s al- Mahathir is serving both as prime banking sector. lies. Apart from the TimedotCom minister and as finance minister? bailout, Tajudin Ramli, another Government agencies will likely Transfer of Assets Daim protégé, was well-compen- be used to take over the enterprises sated by the government with of Daim’s business associates. Those most susceptible to a takeo- public funds when he relin- Eventually, ownership of most of ver of their corporate assets are quished control of the debt-ridden this equity will have to be passed probably those who have also and loss-making Malaysia Air- back to the state or to individuals benefited most from state patron- lines. aligned to Dr. Mahathir. age, but were unfortunate enough to be aligned to a political patron Halim and Daim are now quietly In view of executive hegemony who had fallen out with the prime portrayed by the domestic press over the state, the nature of corpo- minister. Halim, a protégé of as being primarily responsible for rate – and public – governance Daim, has been forced to relin- Renong’s debt crisis and the lack henceforth will depend entirely on quish ownership of his equity in of transparency and accountabil- Dr. Mahathir. The prime minister Renong. Despite Halim’s long- ity in government respectively. Dr. has asked the public to trust him, standing involvement, he is giv- Mahathir, however, also has to promising greater transparency ing up his interests without a fight. bear responsibility for Renong’s and accountability in government It is likely that other businessmen present state of affairs. In the pur- and in the way the Renong Group closely aligned with Daim will suit of his vision of creating will be restructured. However, as soon be similarly forced to relin- Bumiputera entrepreneurs in con- long as power is centralized in the quish their collectively vast control of huge conglomerates, hands of a dominant executive, in- trol over the corporate sector. Mahathir’s government gener- vestors will be skeptical of corpo- ously bestowed in a non-transpar- rate deals undertaken in the “pub- Politically-inspired takeovers are ent manner numerous privatized lic interest.” q nothing new for Malaysia. concessions on companies in the Through the ostensible enforce- Renong Group, as well as other ment of corporate governance, favored businessmen, like Dr. Gomez is Associate politicians in control of the execu- Tajudin. Professor, Economics, Uni- tive have often transferred corpo- versity of Malaya. rate assets into the hands of their The Renong Group grew rapidly

Aliran Monthly 21(6) Page 39 ECONOMY The UEM Takeover: Bailout Or Accountability? by Terence Gomez

hen the Malaysian gov- nications, petroleum, power sup- out looked like continued abuse ernment announced on ply and banking, critics had long of the domestic financial sector for WWW July 23, 2001 that it in- suggested that to trim down its vested interests. tended to spend 3.8 bil- debts the group divest some its lu- lion ringgit (US$1 billion) to buy crative assets, presently conserva- Fallout out United Engineers (M) (UEM), tively valued at 25 billion ringgit. it was widely believed Mahathir Now, suddenly, this is what the But some signs suggest a shift in Mohamad was setting up another government claims it has in mind. the political climate. The political bailout. As a key component of the The domestic press has also ar- falling-out between Dr. Mahathir country’s deeply indebted Malay- gued that a restructuring of and his once-influential ally, owned conglomerate, Renong, the Renong/UEM will help alleviate Daim Zainuddin, who resigned as company looked like a prime can- corporate governance concerns Finance Minister last June, is part didate for rescue by the govern- that have affected investor confi- of it. Neither Dr. Mahathir nor ment. Until November 1990, com- dence in the Kuala Lumpur stock Daim has really explained the lat- panies in the Renong Group had market. In response to the finan- ter’s resignation as Finance Min- been under the direct ownership cial crisis, new institutions and ister. Certainly, few Malaysians of Mahathir’s ruling United regulations were put in place to concerned about corporate gov- Malays’ National Organization help promote greater transpar- ernance and accountability (UMNO). ency and accountability in the would complain about Daim’s corporate sector. The Renong departure, or of the fall-out be- Naturally Dr. Mahathir denies a Group and its controlling share- tween the two leaders, or even of bailout. Regardless of the prime holder Halim Saad were seldom the UEM takeover by the govern- minister’s position, it is hard to subject to these regulations, how- ment. But most Malaysians see how public interest alone ever. should be worried about the man- could justify the UEM takeover. ner of the takeover and what it re- Nor is this takeover part of his The scandals were frequent. In veals about the state of Malaysian government’s attempt to create a March 2001, when the initial pub- politics. more transparent and account- lic offering of a Renong subsidi- able corporate environment, as ary, TimedotCom, was poorly re- The UEM takeover provides im- practically every analyst quoted ceived, much of the company’s portant insights into two key is- in Malaysia’s docile domestic leftover equity was taken up by a sues. First, it throws light on the media has argued. few public institutions. On an- structure of the state – how power other occasion in 1997, UEM was has increasingly become centered Deep In Debt used to buy up a massive 32.6% in the hands of Prime Minister stake in Renong for 2.34 billion Mahathir. (All others arms of the The Renong Group’s debt crisis ringgit. This acquisition, imple- government have become subser- has been around since 1997 fol- mented partly through a 800 mil- vient to the office of the executive.) lowing the outbreak of the finan- lion ringgit loan provided by gov- Second, it reveals the impact that cial crisis. Since the conglomerate ernment-owned and politically involves businesses as diverse as well-connected banks, upset UEM Continued on page 39 hotels, expressways, telecommu- minority shareholders. The bail-

Aliran Monthly 21(6) Page 40