The Malay Politic's Ultimate Game: Wan Azizah Dictatorship system of Guided judiciary Diverse interpretations of conspiracy special relish for transparency and judicial accountability.

PKR president Datuk Seri Dr Wan Azizah Ismail today likened the incoming administration of Datuk Seri Najib Razak to something “which is no different from the old regime” of Tun Dr Mahathir Mohamad.

She told more than 2,000 party faithful assembled for the PKR congress here that she expected more arrests under the Internal Security Act (ISA), more corruption and the continued erosion of public institutions, all of which she said were the hallmark of the Mahathir era.

“The transition plan between the prime minister and his deputy will not bring any positive changes to the damage done to the judiciary, the police, the Anti-Corruption Agency and parliament,” she said

Wan Azizah wants members to go back to the basics of ‘justice for all’. — Picture by Choo Choy May

Dictatorship system of Guided judiciary Diverse interpretations of conspiracy special relish for transparency and judicial accountability.

Everyone knows Pattail got promoted to AG

For his role in Anwar’s case for sodomy

Mahatir purposely brought him

To stop and kill Anwar Ibrahim

They now trying to do the same scenario

Najib, Musa, Patel, bastards, the trio

Trying, again to do it all over

But round one went to Anwar’s favour

The judges have become brave and daring

Saying enough is enough to your raping

Of the court and the judiciary

With your repeated cases of sodomy

Do not be misled by mere change in name. Our democracy is modelled along British parliamentsry democracy but we end up with dictatorship /totaitarian system of GUIDED DEMOCRACY as represented by the Mahahir regime and pepectuated by the present government. We try to model our Anti-corruption Agency along the HONGKONG Independent CAC but may end up with a GUIDED Commission that may not be so independent.It can be MODIFIED to suit the POLTITICAL needs and demands and conditions of the RULING ELITE WITH VESTED INTERESTS. A CHANGE IN NAME WITHOUT A CHANGE IN SUSTANCE IS A MERE ILLUSION TO HOODWINK THE RAKYAT. IT MAY BE WELL-PLANNED SYSTEM TO PROTECT AND PRESERVE THE HIGHLY CORRUPTED LEGALLY USING OUR OWN GUIDED ‘SYSTEM OF RULE OF LAW’

On February 10, the Supreme Court threw out yet another petition seeking to reinstate L K Advani as an accused in the trial of the conspiracy to demolish Babri Masjid. This is despite a host of circumstances pointing to the probability of Advani, NDA’s prime ministerial candidate in the upcoming election, being involved in the conspiracy. Not the least of which was his notorious rath yatra in the run-up to the demolition. And the testimony of the IPS officer in charge of his security, Anju Gupta, stating that his speech on the spot minutes before the demolition had added fuel to the fire.

On February 13, in the first of the Nithari serial killing cases to be decided, a trial court pronounced death sentence on Moninder Singh Pandher for a murder that took place when he was far away in Australia. And for the murder of a girl who he did not even know. As the prosecution admitted, there was no evidence to suggest that it was at Pandher’s instance that his servant Surender Koli had raped and killed 14-year-old Rimpa Haldar, the victim who lived in a slum near his house. Yet, Pandher was held to be a conspirator mainly because his sexual profligacy was found to have brought out depravity in his servant.

The two interpretations of criminal conspiracy could not have been more different: ultra liberal in the case of Advani and stretched in the case of Pandher. Neither interpretation seems justified in the given facts and circumstances. Both the interpretations raise questions about the rigor and detachment with which the judiciary at all levels performs its job.

Judges have their inscrutable reasons

Manoj Mitta

We just don’t seem to get it. The normal standards of accountability don’t apply to judges. We are unable to grasp their argument that, much as it is desirable in other institutions, transparency in the judiciary will compromise its independence, a larger constitutional value. Hence, we persist with the folly of expecting judges to be swept away by the wave of transparency triggered by RTI.

This is evident from the two latest attacks on judges on July 17. First, this incorrigible sceptic, Prashant Bhushan, mobilised a statement from 25 eminent citizens denouncing a proposed Bill, which prohibits the declarations of assets made by judges to their respective chiefs from being made public. The statement fails to appreciate Law Minister Veerappa Moily’s sensitivity in coming up with a draft that reflects a consensus among judges. As if that were not bad enough, the statement is cheeky enough to suggest that, following the example of their American counterparts, our Lordships too should be transparent about their assets so that we could point out any “unusual accretion” or “false declaration”.

But it is not just civil society that is being irreverent to judges. For, the same day, just before shutting for the weekend, the Central Information Commission (CIC) released an order where it repeated its folly of trying to bring the Chief Justice of India under the ambit of RTI. It once again demolished the CJI’s position that he need not disclose any information lying in his custody as he was independent and distinct from the Supreme Court, which is a public authority under RTI.

It may be recalled that when CJI K G Balakrishnan had first taken this view about a year ago, it was very much in the context of declarations of assets. Since those declarations were in his custody, the CJI held then that the Supreme Court registry would not entertain any RTI queries concerning them. Yet, in its latest order in another case, the CIC defied the CJI saying, “The institution and its head cannot be two distinct Public Authorities. They are one and the same. Information, therefore, available with the Chief Justice of India must be deemed to be available with the Supreme Court of India.”

Like us, the CIC too doesn’t seem to get it. The general logic doesn’t apply to judges. When others take refuge in opacity, we are justified in suspecting that they are hiding corruption. But when judges wrap themselves in a veil of secrecy, we have to take it that they are actually doing so for our good, so that they are not distracted by allegations of corruption against themselves.

One way of coming to terms with this distinction is to re-adopt the outdated notion that king could do no wrong. Going by his logic, Justice Balakrishnan does seem to suggest some such blanket immunity to judges. If some judge has made an unusual accretion to his assets or has made a false declaration of them, it should be no cause for concern to us, the consumers of justice. It’s time we realised that judges have their inscrutable reasons. We should just be grateful to them for whatever justice they dispense to us, in their magnanimity and in their good time. Don’t bring the notions of accountability and transparency into this one-of-a-kind relationship.

Attorney General Gani Patail statement on the inquiry on the death of Te0h Beng Hock

THE purpose of an inquiry under the Criminal Procedure Code is to inquire when, where, how and after what manner the deceased came by his death and also whether any person is criminally concerned in the cause of such death.

This has been lucidly reiterated in Re: Loh Kah Kheng (1990) 2 MLJ 126 Dzaiddin J (the former Lord President when he then was), which held: “It must be remembered that the function of a magistrate holding an inquiry under Chapter XXXII of the CPC is to inquire, when, where, how and after what manner the deceased came by his death and also whether any person is criminally concerned in the cause of such death (Section 337).

“The ’cause of death’ is defined under Section 328 to include not only the apparent cause of death as ascertainable by inspection or post-mortem examination of the body of the deceased, but all matters necessary to enable an opinion to be formed as to the manner in which the deceased came by his death and as whether the death resulted in any way from, or was accelerated by any unlawful act or omission on the part of any other person.

“Hence, the magistrate holds an inquiry by examining witnesses on oath and while usually following the ordinary rules of evidence, he may admit any evidence which he thinks fit, especially hearsay evidence. His duty is to ascertain the cause of death and he is not bound to follow the usual procedure of law courts.”

Under Section 333 of the Criminal Procedure Code a magistrate can dispense with an inquiry if he is satisfied of the cause of death but in all other causes it is mandatory for the magistrate to hold an inquiry, more so in cases of this nature which involves sudden death. Holding a similar inquiry by the royal commission would be duplicitous in such instance.

In the case of Teoh Beng Hock, I have acted under Section 339 (1) of the Criminal Procedure Code to direct the magistrate to hold an inquiry into the cause of and the circumstances connected with the death of Teoh Beng Hock and the magistrate is duty bound to hold an inquiry. Hence, it is undoubtedly clear that the adequate recourse and appropriate venue are provided by the law for cases of this nature.

In addition, the government has decided to set up a Royal Commission of Inquiry. The functions of this royal commission must not be confused with an inquiry under the Criminal Procedure Code. Section 2 of the Commissions of Enquiry Act 1950 clearly makes reference to the inquiry into the conduct and management of government officers and departments or for the public welfare.

Welfare is defined in The New Shorter Oxford English Dictionary as “happiness, well-being, good health or fortune of a person, community, etc; successful progress, prosperity”. Therefore, it cannot be overstretched to cover an inquiry into the death of this nature, wherein an inquiry by the magistrate under the Criminal Procedure Code is more appropriate and sanctioned by the law.

Therefore, the Criminal Procedure Code being a specific legislation that makes provisions for such inquiry, it is only proper that a court of law determines the cause of death. The Royal Commission of Inquiry is rightly and lawfully formed for the purpose of inquiring into the procedural aspects of the Malaysian Anti-Corruption Commission in carrying out investigations. Both Prime Minister Datuk Seri Najib Razak and Attorney General (AG) Tan Sri Gani Patail have flopped miserably to justify the unjustifiable — the irrational and untenable decision to have both a royal commission of inquiry (RCI) and an inquest to deal with the boiling controversy of Teoh Beng Huat’s tragic death under custody of the Malaysian Anti-Corruption Commission.

In an immediate response to nation-wide protests against the government’s decision to allow the RCI to deal with only procedural matters while leaving the all important issue of cause of death to an inquest in a magistrate court, Najib said:

“We must adhere to the laws of the country. Please don’t take (political) advantage of the case. Our intention is to find out the truth”.

Sensing his statement sounded somewhat hollow, he quickly added that the Attorney General will issue a statement to explain the details.

But the Attorney General statement sounded even more hollow. His statement is a blatant attempt to mislead by deliberate omission of the relevant section of the law.

Citing section 2 of the Commissions of Enquiry Act 1950, Gani said it made clear reference to the inquiry into the conduct and management of the government officers and departments for the public welfare. He said welfare matters relate to the well being of society and “cannot be overstretched to cover an inquiry into the death of this nature.”

In this statement, Gani made two assertions. First, the Act covers only government departments and officers. Second, his definition of “public welfare” excludes inquisition of death.

On Gani’s first point. Under the same section quoted by Gani – section 2 of the Act – it is expressly stated under item (d) that the Commission is empowered to inquire into “any other matter in which an inquiry would, in the opinion of the Yang di-Pertuan Agong, be for the public welfare, ….”. So, Gani’s assertion is directly contradicted by item (d). He is therefore guilty of a deliberate attempt to mislead the nation, as he cannot possibly be ignorant of this elementary and fundamental provision of the Act, being the highest legal adviser to the government.

On the second point. Gani’s narrow interpretation of the phrase “for the public welfare” is laughable. When the nation has been so incensed by the heinous injustice of this tragedy that it is almost on the point of revolt, appointing an RCI to probe into this death is not only legally and politically appropriate but the very minimum the government must do if it still wants to retain a remote semblance of rule of law in this country.

And yet, our attorney general is telling us that making such a move is incompatible with “public welfare.” Then what will constitute “public welfare”? Waiting for violence to erupt in the streets – knowing fully well that public confidence in the existing law enforcement bodies including the courts is already non-existent? Even when an RCI is commissioned to probe into the death, there is no assurance of justice done, judging from the government’s habit of ignoring recommendations of RCIs in recent times; but at least it will calm the highly strung nerves of the nation by showing that the government is finally taking steps in the right direction. And I can’t imagine any decent person will dispute by saying that taking such a course does not fulfil national interests as implied by Gani’s narrow interpretation.

Much has been written and expressed by respectable legal minds, political parties and civil society leaders that the present set up of an RCI cum inquest to divide the task of resolving the present crisis is legally and technically untenable and morally unacceptable, and I will not elaborate further in this direction.

Suffice to say that Najib must decide, and decide now, which course he wants to take. To salvage the image of the nation and redeem himself from a scandal-ridden past by appointing an honourably constituted RCI with proper terms of reference to take on the crisis, or relegate the task to a magistrate hamstrung by prosecutors and police, all of whom are deeply mistrusted by the public.

Inflammatory messages and insults directed toward deeply held religious beliefs are likely to add to the already heated discussion on whether Muslims and non-Muslims can live together in an integrated, multicultural society. When considering what effects the film by Geert Wilders will have, we anticipate that it will certainly exacerbate the current situation between these groups. This film will surely spread or breed anti-Islamic sentiment and will act as a promotional or recruitment tool for anti-Islamic groups and organizations.

Geert Wilders’ own behavior can be described as nothing less than extremist. He asserts that the teachings of the Koran are a source of violence and intolerance. However, at the same time Mr. Wilders and those similar to him are themselves the sources of violence – their views encourage intercultural clashes and endorse polarization between Muslim and non-Muslim societies.

There is the possibility that youth will want to vent their anger through violence and confrontation. To avoid such a scenario it is imperative that rather than reacting impulsively to the situation, youth should prepare a peaceful response. We should not reply to extremism with extremism. We should not reply to provocations with violence – even serious provocations. The only way to counter this ignorance is to enlighten.

The worst response of any respectable and up-standing Muslim youth is to remain silent and do nothing. Mr. Wilders is exploiting the notion of freedom of expression, but you also have this freedom. Use it! Seek out others who feel as you do and use the power of communication to highlight and demonstrate to the ignorant few the beauty of diverse cultures and faiths. Go to your constituencies and encourage other people of faith not to give in to violence. Prove the producer of this film wrong. Write statements, make counter-films, take non-violent action!

To all Islamic umbrella organizations – remind all your members that they should not allow themselves to be provoked because that is exactly the intention of the movie. Pass this message on to all the Imams to warn people at mosques.

The media plays a significant role in framing the entire issue and in presenting particular aspects of the argument. How this is done is a key factor since the media has access to mass audiences in both the west and the east. Supporters of the film will appeal to freedom of expression while the opposition will defend the faith and the identity being scrutinized and attacked. Balancing freedom of expression with respect for religion is a very delicate matter.

Freedom of expression is a fundamental human right in any democratic society; nobody can ban the right of free expression. There is, however, a need to clarify and consider where your own right ends and where infringement of other peoples’ rights begins. It is not our intent to suggest placing limits on the freedom of expression as this is a deeply held value in our society and in most other societies. If we place a limit on this freedom now it would only set a precedent for other limitations later. However, we also realize that some forms of expression do more harm than good.

There are people with many crazy and extreme ideas. The method to make them stop spreading these ideas is not banning them from speaking them out loud, but rather demonstrating, through our own actions, that these views are not worth our attention. The recommendation we have is to foster and nurture an environment where potentially harmful ideas can be countered quickly and effectively with opposing views.