Peaceful Assembly Bill: Najib Not Breaking Any Promises

My article which appeared on LoyarBurok, The Malaysian Insider and Malaysiakini earlier.

The Peaceful Assembly Bill ("the Bill") which was recently tabled in the Parliament has attracted many criticisms. More so, this was due to the fact that the Bill was, and still is, supposed to be a fulfilment of one of the many promises made by the Honourable Prime Minister's on Malaysia Day 2011. Critics, most notably the Bar Council, however, have accused the Honourable Prime Minister of not living up to his promises and has broken his promises made on Malaysia Day 2011 (for instance, here). But is this really the case?

Due to my background as a member of MCA, I will be deemed to be far from neutral when I attempt to voice my views on this. The current political situation, it seems, has been shaped in such a way that few, if any, are seen to be able to be objective when dealing with issues surrounding us. Truth is, there are many who are apolitical and neutral when they look at the issues revolving around us. I am not saying that I am one, but there are some who would not just toe by their party lines, and there are also many who would not put on the partisan lenses when looking at those issues, whether or not they are members of any political party.

With that record set straight, I now wish to propose my contention that the Honourable Prime Minister did not break his promise made on Malaysia Day 2011 and I shall put forth my justification below.

To my mind, the crux of the Bar Council’s contention that the Honourable Prime Minister has reneged on his promises was based on a part of the Honourable Prime Minister’s speech made on Malaysia Day 2011. Through its Press Release dated 24^th November, 2011, the Bar Council has quoted the Honourable Prime Minister at great length. One of the most important part, which appears at paragraph 4 of the said Press Release, reads as follows:-

"The Government will also review section 27 of the Police Act 1967, taking into consideration Article 10 of the Federal Constitution regarding freedom of assembly and so as to be in line with international norms on the same matter... (emphasis added)"

It is my honest believe, however, that this was not the promise made by the Honourable Prime Minister on Malaysia Day 2011. Before I move on to why, I wish to emphasise that I am not accusing the Bar Council, or any other person or organisation who has adopted the same part of the speech, of manipulating the words of the Honourable Prime Minister. Rather, I believe that there was a mistake on the website of the Prime Minister’s Office.

Those who have sat in front of the televisions or by the radios on that historical day would recall that the Honourable Prime Minister had actually spoke on Malaysia Day 2011 in Bahasa Malaysia. As such, the promises made by the Honourable Prime Minister on Malaysia Day 2011 must, as a matter of fact, have been made through Bahasa Malaysia, as opposed to English. In the same vein, if there is any conflict as to the transcript of the Honourable Prime Minister’s speech in Bahasa Malaysia and that in English, the transcript in Bahasa Malaysia shall prevail.

I do not have a single doubt that the part quoted by the Bar Council was in fact taken from one of the transcripts of the Honourable Prime Minister’s speech on Malaysia Day 2011. In fact, it appears on the website of the Prime Minister's Office. However, it differs from the actual speech made by the Honourable Prime Minister, which was made in Bahasa Malaysia.

For ease of reference, I wish to reproduce that part of the Prime Minister's speech on Malaysia Day 2011 in Bahasa Malaysia (and my translation of it in English), which corresponds with that quoted by the Bar Council above and reads, at paragraph 28 of the transcript, as follows:-

"Kerajaan juga akan mengkaji semula seksyen 27 Akta Polis 1967 dengan mengambil kira peruntukan Perkara 10 Perlembagaan Persekutuan tentang kebebasan berhimpun dengan prinsip menentang sekeras-kerasnya demonstrasi jalanan. Namun, kebenaran berhimpun diberi selaras dengan kaedah-kaedah yang akan ditetapkan kelak di samping mengambil kira norma-norma di peringkat antarabangsa." (my emphasis added)

When translated into English, the same part of the transcript should read as follows:-

"The government will also review Section 27 of the Police Act 1967 by taking into consideration the provision under Article 10 of the Federal Constitution on freedom of assembly, but with a principle that is strongly against street demonstration. Nevertheless, the approval to assemble will be given in accordance with methods that will be outlined later while taking into consideration international norms." (my emphasis added)

Based on the above, it is my honest belief that the accusation against the Honourable Prime Minister of breaking his promises made on Malaysia Day 2011 was mistaken, and premised on a flawed basis. Given the high standing of the Bar Council, a body highly regarded for its credibility and impartiality, I verily believe that the Bar Council would reconsider its view formed against the Honourable Prime Minister as stated in its Press Release dated 24^th November, 2011. This, again to my honest belief, would be in line with the Bar Council’s objective of upholding the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour.

That aside, what is more important at hand is the contents of the Bill, which will, if passed, significantly affects the rights and freedom of many Malaysians. In this respect, I share many of the ideals of the Bar Council which are contained in its memorandum.

Firstly, considering the importance and significance of the Bill, it would be farcical if the passing of the Bill would be rushed through. From what it appears on the papers, it is hard to believe how the Bill is already going through its second reading when it was only tabled two days ago. Any sensible mind would tell you that something is amiss, given how long it took the Government to review section 27 of the Police Act 1967 which requires a permit for assembly to be held. Surely, we would not want our children and grandchildren to be bogged down by a piece of legislation which is not properly considered. As such, I agree with the Bar Council’s recommendation that the Bill be referred to a Parliamentary Select Committee which would engage in a public consultation process.

Secondly, one of the most controversial parts of the Bill is the outright, total prohibition of street protest. To set the record straight, I am not a firm supporter of street protest. It is my belief that the right and freedom to assemble, including that of street protest, must be balanced against the rights and freedoms of those who will be affected. It is simply because of this I believe the Government has, through its draftspersons, formulated sections 5 and 12 of the Bill to take into consideration the objection of those who will be affected. A total prohibition of street protest, however, is not a balance between the right and freedom of those to assemble and the right and freedom of those who will be affected. Rather, it is overly in favour of the right and freedom of those who will be affected. This is probably the reason why many civil society activists argue that the Bill is unconstitutional.

Support for the arguments that the Bill is unconstitutional, strictly based on section 4 of the Bill which prohibits street protest, can be found from the cases of Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 and Cheah Beng Poh & Ors v Pendakwa Raya [1983] 1 LNS 65.

In the Cheah Beng Poh case, Hashim Yeop A Sani FJ held at the Kuala Lumpur High Court as follows:-

“The court as guardian of the rights and liberties enshrined in the Constitution is always jealous of any attempt to tamper with rights and liberties. But the right in issue here i.e. the right to assemble peaceably without arms is not absolute for the Constitution allows Parliament to impose by law such restrictions as it deems necessary in the interest of security and public order. In my view, what the court must ensure is only that any such restrictions may not amount to a total prohibition of the basic right so as to nullify or render meaningless the right guaranteed by the Constitution.” (my emphasis added)

This was supported by the Federal Court in the case of Sivarasa Rasiah where the Federal Court, speaking through Gopal Sri Ram FCJ, held as follows:-

“Now although the article says ‘restrictions’, the word ‘reasonable’ should be read into the provision to qualify the width of the proviso… The correct position is that when reliance is placed by the State to justify under one or more of the provisions of Article 10(2) of the Federal Constitution, the question for determination is whether the restriction that the particular statute imposes is reasonably necessary and expedient for one or more of the purposes specified in that article.” (my emphasis added)

It is thus my considered view that the Government should not and cannot impose a total prohibition against street protest. In order to achieve the balance I have mentioned earlier, it is my humble suggestion that the Government should add to the restrictions and conditions, under Section 15(2) of the Bill, the following clause or clause(s) to the following effect:-

“In respect of street protest, it shall not take place within the radius of 1 kilometre from hospitals, fire stations and, if there is objection from person who has interests, such streets that would severely affect their trade activities and businesses.”

Thirdly, the prohibition of children from assembly and the definition of “child” under the Bill. As the Bar Council has correctly pointed out, under Articles 1, 13 and 15 of the Convention of the Rights of the Child (“CRC”), which Malaysia withdrew its reservations on 6^th June, 2010, children are entitled to “the freedom to have their say, and the right to form associations and assemble peacefully”. However, it is my humble belief that these Articles of the CRC should also be read together with Art. 12 of the CRC which states that “State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely…”.

As I have written on the need to strike the right balance earlier, I believe that the prohibition against the participation of children from assembly should not apply to those who are able to form their own views. In this respect, there is no doubt that the maturity and ability of each and every child differ from one another. It is thus difficult for the Government to set an age limit. However, I strongly believe that most children of 15 years old today are sufficiently matured and able to form their own views. As an example, I recently discovered a Facebook group created by these young children where I was taken by surprise by how they have articulated and reasoned their views for and against the abolition of PPSMI in stages. As such, while seeking to strike the right balance, I propose that the definition of “child” under the Bill should be amended to apply only on children who are of the age of 12 and below.

Similarly, set at the minimum age of 21 years old, the restriction as to who can organise an assembly is unnecessarily restrictive. I strongly believe that the Government should have in mind that when we speak of assembly, it is not only limited to assembly for political causes. There are, often, other causes where people assemble. For instance, there may be young children who wish to hold a peaceful assembly to raise awareness of cervical cancer.

Further, the Government should also take into consideration that education for our young children do not, and should not, depend solely the education system. Organisational skill is one of those skills which they will need to succeed in their lives in the future. Stopping from them learning, practising and sharpening such skill outside school will only impede the healthy development of their minds and thoughts. Ideally, therefore, the age limit should be set at the age of 15 instead of 21, allowing the young children a buffer zone of 3 years to participate in any assembly, and observe and learn the skills of organising it, if they so wishes to.

Fourthly, the powers given the police under the Bill is too wide where the police “may take such measures as he deems necessary” and impose such restrictions and conditions as he “deems necessary or expedient”. Whilst the Bar Council has referred to several models of other jurisdictions to replace this, I personally prefer the British model. Therefore, it is my humble proposal that Sections 8 and 15 of the Bill should be amended in such a way that the police can only take such measures or impose such restrictions and conditions “to prevent serious public disorder, serious criminal damage or serious disruption to the life of the community”.

Fifthly, the notification of the planned assembly. Due to the choice of words used in both the Bahasa Malaysia and English versions of the Bill, there are confusions as to whether notifications are to be given at any time within 30 days before the proposed assembly, or at least 30 days before the proposed assembly. Section 9(1) of the Bill was very vague where it only states “within” or, in Bahasa Malaysia, “dalam tempoh”. If at all the word “within” could be interpreted to mean “at least”, like how it has been interpreted by some of the Opposition members and even senior lawyers, I am of the opinion that this will set a bad precedent which will severely prejudice the commercial contracts in this country which could be worth billions of dollars. For instance, to put things in perspective, under a standard Sale and Purchase Agreement for a property, the purchaser will usually have to pay to the vendor the balance purchase price “within” 3 months from the execution of the agreement. If, and only if, “within” could mean “at least”, would that not mean that the purchaser is supposed to pay the balance purchase price at least 3 months before the completion date? Nonetheless, given such confusion, I believe that the Government should amend the said provision so as to mean “at any time within 30 days before the proposed assembly”.

Whilst we are at this, the requirement of notification to replace the initial requirement of permit by the police is probably one of the biggest steps the Government has taken to march closer to greater, better democracy. The Bill as it is allows the organiser to organise an assembly at any time as long as it was notified to the police in the prescribed form. The police, under section 14 of the Bill, must respond to the notification within 12 days of the receipt of the notification where they can impose the restrictions and conditions under section 15, if any. However, if the police do not respond, section 14(2) of the Bill allows the assembly to proceed as proposed in the notification.

For the purpose of illustration, if the Bar Council plans to hold a candlelight vigil at Dataran Merdeka on 29^th November, 2011, at 8 p.m., they only need to notify the police at 7.30 p.m. using the prescribed form under the 4^th Schedule of the Bill. By 8 p.m., if the police fails to respond to the said notification, the candlelight vigil can proceed as planned.

That, I believe, is probably one of the best things under the Bill. If the Government is willing to take another step closer to greater democracy in such method as suggested above, the Bill will certainly be a much greater reflection of the want and efforts of the Honourable Prime Minister to transform the political landscape of this country. It is in such belief for the better growth and development of our beloved country that I pray that the Honourable Prime Minister and his Cabinet members will refer to the Parliamentary Select Committee, consult and adopt the public’s views on the provisions in the Bill.

教育与种族和谐

自古以来，华裔家庭都很重视教育。华裔父母之所以对于育秉持着强烈的坚持是因为其相信只有经历过正统教育孩子们方可成才，而且只有完整和完善的教育才能确保孩子前途似锦 。因此父母对孩子们的学业和成绩表现都抱负着很大的期望，并不惜为筹集孩子们的教育经费而任劳任怨的付出和牺牲。有些父母甚至为了提供孩子上大学的经费，而把自己辛辛苦苦用血汗赚回 来的房子给卖了。有的更是动用自己多年茹苦含辛储蓄的养老金来支付子女升学开销。由此可见，华裔家庭望子成龙望女成凤的爱子心切，都一一呈现在为子女教育上作出的无限牺牲。

也正因为如此，许多 的大马华人，尤其是政治人物，针对巫青团团长凯利最近涉及母语源流教育的一番言论而在媒体平台上唇枪舌战，闹得轰轰烈烈。

前几天，各大华文报章都有报导凯利针对母语源流教育作出的一项献议。他提及了实行单一源流学校制的制度能有效的改善国内整体教育制度。凯利的出发点不过是来自于一颗想促进各族人民团结的心。他相信在现在的多源流教育制度下，许多父母都把自己的孩子送入自己母语源流的学校，无形中导致孩子们在学习环境成长过程里只是接触到与自己一样族群的朋友而已。这个现象对于国家各族人民的团结虽然未必会造成有害的局面但对于巩固团结各民族的基础必当弊多于利。当然，就如像凯利随后所作出的澄清，这个建议应待由各族的大马人以公投的方式来探讨各族人民的支持率后，才作出决定是否要废除个源流母语教育系统。

这番言论无奈引起了各方华裔政坛人物的积极反对。行动党议员倪可敏在推特上更以“一只终于露出尾巴的狐狸”来形容凯利，当中马青团团长拿督魏家祥博士更是再度声明马华对于多源流母语教育制度的支持。笔者也有幸能在推特上与魏家祥博士 作出交流，从中了解他对于多源流母语制度的坚持的背后因素。魏家祥博士阐明在多源流母语教育制度下，学生方有机会能够更深入的学习自己的母语。这是因为华小或者淡小的教学媒介语，除了国语和英语课，其他科目均以母语来传授。魏博士也表示，多源流母语教育制度是受到宪法保证和保障，而马华也会不辞劳苦的捍卫先贤争取到的权益。

冒着就此被套上民族叛徒或是巫统走狗之名的风险，笔者想在此为赞成单一源流校制的建议作出全面的解释。笔者来自华小，自幼受到了5年的母语教学熏陶成长。随后，基于交通因素而选择升上了以国语教学的国中，并接受了5年的国语教育。笔者在国中学习时观察到由华小迁升的同学与源自国小的同学在交流的时候必定因语言和文化分歧和产生明显的鸿沟。团结问题的主要来源也许并非因异族关系紧绷所致，但同时多源流母语教育也应证了不同的教育背景确实会促使各族之间产生不必要的分歧。

以上的例子足以证明源流母语教育制度多多少少对于人民的团结造成负面影响。因此，我国应更应该推行单一源流校制以催化整体团结过程。与此同时， 笔者希望读者不要误解此概念的用意。笔者也深深相信在推行单一源流校制的当儿，母语一定不可以被边缘化。在单一源流校制里，母语可以被纳为其中一项选修科，让友族朋友也可以接触不同的语言，并由此更了解各族文化背景。笔者希望这个方针能够有效的促使各族群之间的关系，不再因为不同的种族和不同的教育背景，而在了解各族文化时有所停歇。唯有这样才能真正实现首相所推崇的一个马来西亚理念。

注意：这只是笔者的个人看法，希望能够引起大家的思考，想想怎么能够让多元化的马来西亚人民能够活得更融洽。笔者也想声明，要促善各族之间的关系，除了教育方面，其他能影响人民的政策都需加以改善，例如在经济领域里。希望笔者下次有缘再和大家分享笔者的拙见。

The Report Card

Those who have gone through the Malaysian education system like myself would no doubt agree that it is no secret that our education system place a great emphasis on results. From primary school up to secondary education, we are judged by how we performed in UPSR, PMR, SPM, STPM, A-levels and so forth. Even if not by these major examinations, the results of our monthly tests, mid-year and year-end examinations would be recorded in our report cards. And I vividly remember how nervous it used to be to hand the report card for my dad to sign it (I don’t usually perform well in examinations). One of the occassions where I still remember how nervous I was, was when I handed over my report card which contained a red number 38 for my additional mathematics in the first monthly test in Form 4. I was forced to go for additional mathematics tuition for the next 2 years but allow me to brag about it, I scored 93 for the following month and eventually an A1 in additional mathematics in SPM.

Recently, I have had the opportunity to meet a fellow LoyarBurok-ker, Edmond Bon. An activist and a former council member of the Bar Council who has been very active in championing human rights and constitutional rights. For the record, whilst he was the Chairperson of the Bar Council’s Constitutional Law Committee, he started the now famous MyConsti campaign. A campaign which was designed to inform most, if not all, Malaysians of what is contained in the Federal Constitution, the supreme law of the land and the highest law of the country. At our short but elaborate meeting, I have had the opportunity to hear from the man himself on his views on the types of rights in Malaysia and how it was not, or rather not properly, exercised. One of such rights is our right to vote. Hence, being an activist, and a rather aggressive one, he formed a group known as Undi Malaysia. A group, which to my understanding, asks and encourages people to vote. As I have mentioned earlier, Edmond is an aggressive activist. Not only did he form the group and got many on board, he went on to get a place for the group to operate, a place which is now known as the Pusat Rakyat.

So, what has Undi Malaysia or Pusat Rakyat got to do with the title of this article- the Report Card? To my understanding, part of the aims of Undi Malaysia is to set up a website which works like a report card for all our Members of Parliament. Essentially, the website shall contain the election pledges of our elected MPs and how far they have fulfilled their election pledges. From there, voters can they give marks and gauge how good/ effective their MPs are. That, I thought, was a fantastic and great idea.

To date, despite being independent for over 54 years, sadly, we do not have any sort of measurement to gauge the effectiveness of our elected representatives, or how many of the election promises were not just empty promises but promises that were acted upon. As such, far too often, we let our elected representatives off the hook. We rely merely on what they say at ceramahs year in year out. We do not know, and there is no platform for us to verify, the actual past record(s) of our elected representatives. This certainly isn’t right and shouldn’t be continued. When we speak of accountability, when we speak of holding our elected representatives to account, we need a record of what they have promised, we need a record of what they have done. In short, we need that report card of our elected representatives and not just the sweet words uttered at ceramahs. We need their results. Therefore, I wish to call upon all brothers and sisters to come join this noble cause- participate in Undi Malaysia and/ or provide the details for us to evaluate our elected representatives. Let us keep our politicians at check. Let us be smart voters who will not be persuaded simply by words without actual results. Undilah, Undi Malaysia!

The Right of An Accused: Anwar Ibrahim

Those who have been following the Sodomy 2 trial of Dato’ Seri Anwar Ibrahim must have been surprised by the tactic employed by the defence team today. This is especially true in respect of the prosecutors who have no notice of the choice of Dato’ Seri Anwar Ibrahim to make an unsworn statement from the dock. Being a practising lawyer, it is of interests to me as to why Dato’ Seri Anwar Ibrahim chose to make an unsworn statement from the dock, as opposed to testifying as a sworn witness in the witness box. While I maintain that it is his right to do so, it remains suspicious as to why he employed this tactic and evaded cross-examination by the prosecution.

From my quick research, it appears that the right of Dato’ Seri Anwar Ibrahim, being an accused, to make a statement from the dock is not provided in anywhere in our Criminal Procedure Code or the Evidence Act. Rather, this is a common law right which was originated from the English criminal law in the late 19^th century and now integrated as part of our criminal law.

As I stand to be corrected, this right is rarely exercised by any accused and thus there are few case laws of which I can refer to. One of the earliest cases in Malaysia where an accused exercised his right to make an unsworn statement from the dock is that of Ip Ying Wah v Public Prosecutor [1958] MLJ 34. In the Ip Ying Wah case, Buhagiar J who heard the case held that when an accused makes a statement from the dock, he is not liable to any cross-examination by the prosecution team. Therefore, when an accused exercise this right, not only that he need not swear and give evidence under oath, he too will not be subjected to any cross-examination by the prosecution; a stage at which usually the credibility of any witness and/ or any contradiction in the testimony of the witness will be revealed.

Given the fact that the accused need not testify under oath and will not be cross-examined, should the statement of the accused then be admitted as evidence by the courts of justice?

Again, from my quick research, it appears that there are conflicting decisions on this issue. It is important to assess from two (2) cases for the purpose of this article, namely the High Court cases of Wong Heng Fatt v Public Prosecutor [1959] MLJ 20 and Ng Hoi Cheu & Anor v Public Prosecutor [1968] 1 MLJ 53.

In the case of Wong Heng Fatt, at p. 21, Smith J who heard the case held as follows:-

“I do not consider that a statement by an accused from the dock is evidence in view of the provision of s4(1)(a) of the Oaths and Affirmations Ordinance 1949 the essential part of which reads “… oaths shall be taken by witnesses, that is to say, all persons who… give evidence… before the court…”. Since the appellant was not sworn or affirmed he did not give evidence.” (my emphasis added)

Section 4(1)(a) of the Oaths and Affirmations Ordinance 1949 is now replaced by Section 6(1)(a) of the Oaths and Affirmations Act 1949, which reads:-

“(1) Subject to section 7, oaths shall be taken by the following persons –

(a) witnesses, that is to say, all persons who may be lawfully examined, or give or be required to give evidence, by or before any court or person having, as mentioned in section 4, authority to examine such person or to receive evidence”

Then in the case of Ng Hoi Cheu & Anor v Public Prosecutor [1968] 1 MLJ 53, Chang Min Tat J (as his Lordship then was) disagreed with the view of Smith J relying on Section 3 of the Evidence Act 1950 which defines “evidence” as, inter alia, “all statements which the court permits or requires to be made before it by witnesses in relation to matter of fact under inquiry: such statements are called oral evidence…”.

It also pertinent to note at this point that the English Court of Appeal had in the case of Shankley v Hodgson [1962] Crim. LR 248 held that an unsworn statement from the dock is NOT evidence and the view of the English Court of Appeal and Smith J has been followed in Malaysia by Hishamudin Yunus J (now JCA) in the case of Public Prosecutor v Shariff Kadir [1997] 5 CLJ 463.

On the basis that an unsworn statement by an accused from the dock is not evidence, what weight should a trial judge attach to such statement?

In the Shariff Kadir case, at pp. 469-470, Hismamuddin Yunus J (as his Lordship then was) held as follows:-

“since, as a matter of law, an accused cannot be cross-examined on his unsworn statement made from the dock, such a statement cannot carry the same weight as evidence given in the witness-box under oath…

[T]he weight that should be given to such a statement must be such weight as the judge thinks fit.”

Given the little weight to be attached to an unsworn statement by the accused from the dock, if any, vis-à-vis a statement from a witness under oath, it is no surprise why the English Criminal Law Revision Committee recommended that “nowadays the accused, if he gives evidence, should do so in the same way as other witnesses and be subject to cross-examination”. As such, the Westminster Parliament has abolished the right of an accused to make unsworn statement from the dock vide Section 72 of the English Criminal Justice Act 1982.

Following from that, judges in Malaysia too have called for the abolition of this archaic right (since the right has been in existence in England since late 19^th century) including Hishamudin Yunus JCA in the Shariff Kadir case. However, the fact remains that the power lies in our Dewan Rakyat to do so.

Now, having briefly understood the legal position on Dato’ Seri Anwar Ibrahim’s right to make an unsworn statement from the dock, there are many issues that run in my mind.

More importantly, why did Dato’ Seri Anwar Ibrahim and his defence team chose to employ this tactics as they are (or should be) aware from the beginning that there will be little weight, if any, placed on Dato’ Seri Anwar Ibrahim’s statement from the dock.

As a senior politician with a defence team comprising of the best and experienced criminal lawyers like Karpal Singh, I am surprised why Dato’ Seri Anwar Ibrahim chose to exercise his right to make unsworn statement from the dock where such statement should not (NOT that it will not) carry as much weight as, amongst others, Saiful’s (the alleged victim) statement. In order to persuade and convince the Learned Trial Judge to hold in his favour and acquit him, in particular in a trial which is deemed by the Opposition leaders to be a persecution rather than a prosecution, why didn’t Dato’ Seri Anwar Ibrahim make a sworn statement which will, at least theoretically, carry more weight?

In the alternative, is this yet another move on the political chessboard? Is this a politically motivated move that will leave an avenue for the Opposition Leader to attack the judiciary as being biased should he be convicted? I do not know and I cannot say for certain. But one has to look at his statement from the dock.

Parts of his statement (which can be obtained from his blog ) read as follows:-

"... why did Datuk Haji Abdul Malik bin Haji Ishak [the Justice of Appeal who heard the recusal application] embark upon a relentless attack on me in the rest of the judgment? In fact, he had no jurisdiction to do so. This is a blatant abuse of judicial power, perhaps in a surreptitious attempt to curry favour of the political masters? Otherwise, how else can one explain as to why he embarked upon such a scurrilous attack on me..." (my emphasis added)

"Y.A. cannot be disabused of what has been fed to Y.A. by Y.A. Datuk Haji Abdul Malik Bin Haji Ishak when delivering a judgment dated 6th July, 2011 which obviously, having regard to the length thereof, must have been prepared well before 6th July, 2011.

This is scandalous." (my emphasis added)

"I therefore declare that I have no faith whatsoever that justice will prevail..., this is not a criminal trial. It is a charade staged by the powers that be..."

From this, it raises questions as to why Dato’ Seri Anwar Ibrahim chose to attack on the judgment of Malik Ishak JCA on the recusal application and to question whether or not his Lordship was attempting “to curry favour with political masters”. To strengthen his belief and statement that the judiciary is biased? To reinforce in the public eyes that the judiciary is biased?

Ironically though, the defamation suit by the Opposition Leader against the MP of Rembau, Khairy Jamaluddin, is still on-going and I could not count the number of the letters of demand sent to political opponents threatening defamation suits. Shouldn’t Dato’ Seri Anwar Ibrahim, if he has zero faith in our judiciary, drop all suits and/ or threats to sue anyone in the Malaysian Courts of Justice to prove his dissatisfaction in our judicial system?

And let us not kid ourselves, whilst our judicial system and us do not judge by oaths or swearing, any faithful follower of any religion will fear to swear in the name of God unless he/ she is telling the truth. The man has previously refused to swear in a mosque and the same man is now refusing to swear in the Courts of Justice. Are we not going to ask ourselves why? Perhaps, the fear in God?

The Kedah entertainment ban: My take

Recently, the Kedah state government under the Pakatan Rakyat (PR) administration had imposed a ban against entertainment outlets from operating during the Ramadhan month. Fortunately, under the pressure of various political parties, the PAS led state government has revoked the ban against non-Muslims from operating and visiting entertainment outlets during the Ramadhan month. Nonetheless, this issue has escalated to be a national issue. From the condemnation of the PAS led state government to the table now being turned against MCA and Gerakan for agreeing and approving the relevant enactment, which is now used by PAS to impose the said ban. However, what the public was not informed of is what was the actual law passed and what was actually stated in the relevant provision of the Kedah’s Entertainment Enactment 1997.

Before I move on, I must first declare my interest. I am a practising lawyer in Melaka and I am a member of the MCA. It is necessary for me to point out where I am coming from because I expect words like “MCA’s running dog” (a direct translation from the Chinese language) and “MCA’s stooge” being hurled against me, as it has always been done on Twitter by those whom I term as the “PR cybertroopers”. Yet, I also wish to highlight that the law being the law, there is no way for me to twist or spin it to fit my political inclination and I am not sufficiently articulate to do the same. I am merely trying to state and interpret the law as it is, from my understanding of it literally.

As I am practising in Melaka, I have not had the privilege of going through the actual Gazette nor the actual enactment. However, based on my own research, I was able to obtain the relevant provision from the article of Muhammad Sanusi Md Nor, who is the PAS Kedah Information Chief and also the Political Secretary to the Menteri Besar of Kedah, which was posted in his blog here:http://sanusisetpol.blogspot.com/2011/07/assalamualaikum-wbt-seperti-yang.html. The relevant provision is said to be found at Schedule C of the Enactment, at page 150 of the Gazette dated 12^th February, 1998, of which the General Condition No. 8 reads as follows:-

In Bahasa Malaysia:-

“Jenis hiburan yang tersebut di atas tidak boleh diadakan pada bulan Ramadhan atau pada hari Jumaat (iaitu, antara jam 6 petang hari Khamis dan jam 2.30 petang hari Jumaat) kecuali izin bertulis daripada Pihak Berkuasa Negeri diperolehi.” (my emphasis added)

After being translated into English:-

“The types of entertainment stated above could not be held during the Ramadhan month or on Fridays (that is, between 6.00 p.m. of Thursdays and 2.30 p.m. of Fridays) except with the written approval of the State Authorities.” (my emphasis added)

Hence, reading the provision literally, there are two (2) clear points which can be derived from it.

Firstly, it is apparent that entertainment outlets are not allowed to operate during the Ramadhan month and, in fact, on Fridays which are interpreted as being between 6.00 p.m. on Thursdays and 2.30 p.m. on Fridays. From this solely, surely DAP is right that both MCA and Gerakan were cognisant of the effect of such law against the non-Muslims, that is to say that the non-Muslims are also prohibited from operating and/ or visiting entertainment outlets during the Ramadhan month and on Fridays.

However, as my senior at law school, young lawyer Syahredzan Johan (who tweets at the handle @syahredzan) tweeted to me recently, it appears that the law is a general one to regulate entertainment outlets without any religious considerations nor based on any religious precepts. This leads me to the second point which can be derived from the second part of the provision which, at the expense of repeating myself, reads: kecuali izin bertulis daripada Pihak Berkuasa Negeri diperolehi (in English, except with the written approval of the State Authorities). Given such provision, the State Authorities, the Kedah state government led by PAS in this case, has the power to impose any condition on any approval which may be granted for any entertainment outlet to operate during the Ramadhan month or on Fridays. As an example, the Kedah state government could impose upon the operator of any entertainment outlet to prohibit Muslims from visiting their outlet during the Ramadhan month. And this is exactly what they did after the pressure from the various political parties was asserted upon them (or as they say, after consultation with the businessmen?).

It is also at this second part of the provision where we find the root cause of why this whole issue had escalated to be a national issue. I personally apportion the blame on certain irresponsible political quarters that failed, refused and/ or neglected, intentionally or otherwise, to inform the public of the power of the state government to allow entertainment outlets to operate during the Ramadhan month or on Fridays. The fact is that such approvals were granted during the BN administration, or perhaps part of it, but now that the PR/ PAS has taken over the administration, they have refused to exercise their right under the law. Yet, the Member of Parliament for Petaling Jaya Utara, YB Tony Pua, who had exchanged his thoughts with me on Twitter, refused to admit or acknowledge the fact that there is exception under the law and that, there can be exemption by the state government if, and only if, it so wishes to. The state government, however, chose to use this “secular” enactment to impose such religious precept and this is ‘not cool’ (using Syahredzan’s words)! It is thus unfair for certain politicians to accuse MCA and Gerakan for agreeing to and approving law which infringes upon the right and the way of life of the non-Muslims when the intention of the said enactment was not meant to be religious. It is only religious when the new state government chose to enforce the law in such religious way!

Having said that, I do not blame the DAP leaders for not knowing the law and/ or the policy sought to be imposed by the Kedah state government. It is unfair to blame them because they have no representative in the said state government prior to the implementation of the policy. Therefore, we shall celebrate when they jumped onto the MCA and Gerakan bandwagon to condemn such unfair policy in the interests of the people. Likewise, there is no guarantee that the same will not happen should MCA fail to make it into any of the state governments, and to reflect and voice out the views of the non-Muslims, when such policies are planned and drafted by the respective state governments.

As I stand to be corrected, I rest my case.

Credit: I must register my heartfelt appreciation to my senior from law school and now learned friend in the Bar, Syahredzan Johan, for his willingness to spare some time off his busy schedule to read, edit and comment on this article. However, the opinions on this post are completely mine unless otherwise stated.

Why Malaysians SHOULD NOT leave Malaysia

I was reading almost all of the articles on The Malaysian Insider "Why I leave" and "Why I stay" series when it struck me that my friend at law school, Derrick Chan, had crafted a wonderfully written and articulately argued piece, giving reasons why Malaysians should not leave Malaysia. Below is his letter to the Malaysiakini which I have reproduced without permission and will be utmost grateful if Derrick sues me for a cup of coffee:-

I refer to the opinion written by George CN Lee titled , “Why talented Malaysians have to leave“.

George’s opinion is shared by many Malaysians. This is especially among Malaysians of non-bumiputera origin. He points out the negativity in the economic, social and political situation in Malaysia. Mr. Lee is a shameless armchair critic.

Mr. Lee sends his pessimistic views from a far. What makes it more difficult for me to stomach is that he offers no solution to the problem. He also refuses to be part of the solution. He complaint about Malaysia even after calling somewhere else home. I know many will agree that this is just plain typical of the third generation of Malaysians of Chinese-origin.

I dislike the effect his opinion will have on Malaysians. Mr. Lee has inadvertently encouraged Malaysians to migrate by painting a very sorrowful situation in Malaysia. I admit that what he wrote is true and I do not deny it. However, the sad part is that other ex-Malaysians like Mr. Lee are too afraid to take part in the movement for change. He has decided that flight is better than fight.

Like Mr. Lee, I am a Malaysian of Chinese origin. As I grew up, I came to terms that I am a Malaysian-born citizen who happens to be a Chinese. It was by fate, and not design.

Back then in China, the local armed strife is well-documented. As a result, my ancestors left China many years ago. They were left with no choice as the land they toiled was forcefully taken over by the Communist movement, by force, in China. They were left in dire conditions. It broke their hearts to leave but they had to because they were supporters of democratic principles. They tried their best and risked their lives trying to counter the Communist movement but failed. It was only then they decided to take flight.

They boarded ships, not knowing where they would land. All they knew was that they were heading South. I believed that it was destiny that brought them to the shores of the peninsular so that they could rebuild their lives and live peacefully. The then Malaya provided them with this excellent opportunity. This was a land that gave new hope and as I like to call it, they lived the Malaysian Dream.

There is a caveat to my definition of ‘Malaysian Dream’. It is unlike the American Dream. I would not be able to define this in my short treatise. However, the summary of my Malaysian Dream is that every Malaysian regardless of race is accorded the justice and equality to build a home and live happy lives. I can imagine that many of you think that equality and justice is a fable to non-bumiputeras and I do not deny it. However, we can change it to what it was before and flourish like how Malaysia did in its formative years.

I would be lying if I said that I have never considered migration. I have but not anymore. I weighed the pros and cons of why I should and should not migrate. I even went to the extent of writing it down. At the end, I came to the conclusion that I would never ever leave home. I was born in this country and I will be buried with my forefathers who also call this place home.

Home is an institution. It is unlike a house. A house is merely a structure with four walls and a roof over it. I must say that Malaysia as my home is still an institution. It has not been reduced to a house. Malaysia was a good home to all of us.

About 60 to 70 years ago, you would hardly hear anything about racial conflict. Everyone lived in peace and harmony. However, for Malaysia to maintain its homely status, it needs housekeeping. And housekeeping is every Malaysian citizen’s duty.

It was not until all of us Malaysians started to be complacent and left the duties of housekeeping to a few people. The Malaysians who became complacent started not to care. This contributed to the infamous ‘tidak apa’ attitude that still prevails in Malaysia.

Mr. Lee compares the living standards between Malaysian and Australia. I shall take the bull by the horns on this issue. The reason that Australia and other Western countries have better system of governance is simple: The people who live there have a more participative attitude towards governance. This is opposed to the nonchalant attitude among Malaysians and an example of this would be that they have never voted in their lives.

They are scared to participate in civil society. They’re afraid to join peaceful protests in Malaysia because they’re afraid that the sun will darken their skin. Basically, they’re just not interested. This non-interested approached has hurt Malaysia and is the main cause why Malaysia is in the state it is today.

Every Malaysian is given a broom by right. That broom is to clean up our home. It is to keep it neat and tidy. However, the sad thing is that many Malaysians have never lifted that broom. They’ve assumed that it’s better to flee to other countries, as if they don’t have housekeeping duties there.

To sum this up, my message to fellow Malaysians is simple: Go and pick up that broom you were given. Go and participate in the democratic movement in Malaysia and get involved especially if you, such as Mr. George Lee, think that Malaysia is losing its status of being a home to you. Don’t be persuaded by what he says. He didn’t bother lifting up the broom to tidy our home.

Don’t throw in the towel until the broom you’ve been given is broken. If your broom breaks like how my ancestor’s one broke in China, then I would not fault you if you take flight as you’ve already fought.

I will certainly not give up on Malaysia. I hope you will not too.