A Malaysian answers Dr. Mahathir

December 31, 2012

A Malaysian answers Dr. Mahathir

by  Koon Yew Yin@www.malaysia-chronicle.com

Dr MI was reminded of the witticism on politicians that “we hang the petty thieves but elect the great ones to office” when I read Dr Mahathir Mohamad’s claim in his blog that the Chinese (and Indians) are the real masters of the country.

Specifically, he wrote that “[b]ecause they (the Malays) are willing to share their country with other races, the race from the older civilisation of more than 4,000 years and who are more successful, as such today whatever they have now is also being taken away from them”.

As election day approaches, this line of argument is being rehashed. We can expect more of this race baiting by Dr Mahathir and his kind in UMNO and UMNO Youth when they are addressing Malay voters.

Of course, this rehashing will take on new permutations such as “the PKR and PAS are selling out the rights of the Malays” or “the DAP is really the dayang master pulling the strings of the Pakatan coalition”.

What is important is not to get angry or remain silent but to refute it with facts, figures and arguments.

Political idiocy

For Dr Mahathir to accuse the Chinese of being the real masters of the country is really the height of political idiocy. If we want to go by racial perception, it would appear to everyone that Malays dominate in every sphere of life in the country. They form the majority in Parliament, Judiciary, the Army,  the Police, the MACC and all other important agencies. In the socio-economic and educational sphere, they control all the major banks except for Public Bank, the GLCs, PETRONAS, public universities, civil service, etc.

Any Chinese or orang putih wanting to do business has to kowtow to the Malays for licences and permits. Moreover, Malay businesses control some of the monopolies such as water, electricity, toll roads, etc. where it is so easy for them to make more profits by just increasing the price.

Even the richest and most powerful Chinese and Indians such as Robert Kuok, Ananda Krishna, Tony Fernandez, Vincent Tan and others are completely at the mercy of the Malays if they want to do business in Malaysia.

It’s UMNO-BN that has called all the shots

But let’s not go by simplistic perception. The indisputable fact is that the real masters of the country are the UMNO-led Barisan Nasional, which has ruled Malays and Malaysia for over 55 years.

During that period, Dr Mahathir as Prime Minister was the undisputed  numero uno. He changed the country’s constitution and laws; sent his political opponents into prison or oblivion; singlehandedly undermined the judiciary; and put the clock and our time back to ensure that we would all wake up an hour earlier.

He even took on the most sacrosanct of Malay institutions ― the Sultanate ― by reducing the authority of Malay rulers.Dr Mahathir also controlled and manipulated the country’s purse strings. His financial leadership of the country have left an indelible black mark on the country’s economic and financial fortunes.

First, he made the key decisions on economic white elephants and scandals such as Proton, Bakun Dam, Putrajaya, and Perwaja. The last resulted in a loss of RM2.6 billion. Dr Mahathir himself has admitted publicly in 2002 in a dialogue with Malaysians in London that the loss could have been as much as RM10 billion due to possible misappropriation of funds.

Mother of all scandals

The mother of all financial scandals took place during Dr Mahathir’s time. This was the forex losses incurred by Bank Negara’s speculative currency trading which cost us over RM30 billion.

The second outcome was the plague of privatization he inflicted on the country. A devoted fan of Margaret Thatcher, Dr Mahathir pursued privatization of telecommunications, utilities, airlines and other public sector services with a vengeance. But he lacked the British Premier’s caution and acumen and closed both eyes to the leakages and abuses that accompanied the privatization programme.

Dr Mahathir can be considered to be the godfather of the class of capitalist cronies who have cornered much of the country’s wealth and who, together with UMNO-Barisan, are the undisputed masters of the wealth of Malaysia. These big time tycoons comprise many Chinese but they are a multiracial cast and include an increasing number of Malay businessmen.

Today, Dr Mahathir blames the Chinese for working hard and enjoying the fruits of their labour. He is envious of the Chinese middle and upper classes living in high end housing estates and owning the lion’s share of urban property.

He himself lives in a gated community and is reputed to own numerous properties but he laments for the many Malays living in squatter houses.But who has been responsible for this situation?

No escape for you, Dr Mahathir

Dr Mahathir needs to look at himself in the mirror. He has squandered our petro-dollars on his projects of superficial grandeur and his love of cronies, many of whom he has helped with expensive bailouts. He could have solved the plight of hundreds of thousands of squatters by using treasury funds on them instead of his pet projects.

If he had invested the money wisely in skill acquisition for the young Malays and in public housing and urban infrastructure for all Malaysians, especially needy and deserving Malays, the racial economic divide will surely not be so conspicuous.

Dr Mahathir still does not want to go away from the centre stage. He wants to remain in it because he knows that the BN has to maintain power if he is not to be made answerable for the racial, political and economic mess that he was responsible for and left behind as his main legacy.

The extent of his desperation can be seen in his speeches aimed at shoring up Malay support by claiming that the Chinese are the real masters of Malaysia.But as the Malaysian saying goes, his talk has no walk!

Secretary-General: All BN candidates for Generel Election free of Graft and Crime

December 30, 2012


And then this : Secretary-General: All BN candidates for General Election free of Graft and Crime

All Barisan Nasional (BN) candidates for the 13th general election have been found to be free of corruption and other crimes, BN Secretary-General Tengku Adnan Tengku Mansor said today.

He said the candidates for the 222 parliamentary and 505 state seats had undergone screening by the Police, Malaysian Anti-Corruption Commission (MACC) and Department of Insolvency to ensure that they were “clean” and did not have any problems.

NONETengku Adnan spoke to reporters after presenting school aid and People’s Volunteer Corps (RELA) uniforms at a gathering of the people here where a durian feast was also held.

He also said that the background of the candidates was subjected to scrutiny to ensure that they were the people’s choice.

“We want the candidates to be whom the people want, not whom the party or individuals in the party want. We want candidates whom the people feel they can represent them,” he said.

Asked about new faces and women candidates, Tengku Adnan said that was a confidential matter.

Recently, MACC’s Consultation and Corruption Prevention Panel chairman Johan Jaaffar had proposed that all political parties send their list of candidates for the 13th general election for vetting by the MACC to ensure that they were free of corruption and to avert baseless accusations against any individual or party later.

Tengku Adnan, who is the MP for Putrajaya, said he would get the assistance of the Putrajaya Corporation to provide more facilities for the comfort of the residents here. He apologised to the residents for any shortcomings on his part and reminded them to be a model society for the country, saying that Putrajaya was a sustainable city.

– Bernama/www.malaysiakini.com

Independence of the Judiciary

December 30, 2012

Independence of the Judiciary*

by Justice C.V.Wigneswaran( 12-22-12)


Justice C.V.WigneswaranI was indeed pleasantly surprised when your President invited me to address you today. It is eight years since I retired. Though I have been very busy addressing here and abroad many a meeting on legal, social, religious, literary, historical  and many other allied subjects, and sometimes writing about them, the Original Judiciary to which I belonged and the tenure of which I cherished so much never invited me so far.

Perhaps it was because I spoke and wrote of matters that were not appreciated until now! At least, the fact that when a sense of apprehension, uncertainty and confusion has enveloped you, thanks to what is happening around you in Sri Lanka, you have thought of those who stood for the Independence of the Judiciary, and lived their life under much stress and indignity steeped in such Independence, speaks well of you.

It was not very long ago that this speaker together with another senior member of the Original Judiciary had to remind the Secretary to His Excellency the President of the undesirability of interfering with the Independence of the Judiciary when we were called upon to inquire into the dismissals of several Original Court Judges during the tenure of office of Justice Sarath N. Silva. We politely declined to serve on the special committee and indicated that if the request came from  the Judicial Services Commission we were prepared to assist.

 I have been called upon to speak today on your event-theme “Independence of the Judiciary” just as my esteemed friend Justice Salaam, the other speaker, today. We seem to be in the habit of attending conferences together – only a week ago Justice Salaam and I were at a USAID Legal Workshop for the Northern and Eastern Lawyers together.  I hope our discussions do not overlap. What is Independence of the Judiciary? Why is it important? Are these not pertinent questions to answer? Let me briefly define this much maligned phrase in my own way.

Independence of the Judiciary means simply that the Judiciary needs to be kept aloof as far as possible from the other branches of Government and other interest groups. In other words, Courts should not be subject to improper influence be it from other branches of the Government, that is the Legislature as well as the Executive, or from private or partisan interests. If Judges in a country could decide cases and make rulings in applications before them according to the rule of law and according to their judicial discretion, even if they be unpopular and even if they may embarrass powerful vested interests, then we might say there is Independence of the Judiciary in such a country.

Independence of the Judiciary has two facets – extrinsic and intrinsic or the outside and the inside. The extrinsic component is made up of the structural, systemic and environmental factors that form the set up within which Judges function.  The extrinsic component therefore includes the constitutional procedures for appointment of judges, their security of tenure, salaries and perks, as well as their personal security, including threats and inducements.  The intrinsic component includes how Judges think, react and behave.    This component is what is truly within our power.  However, even the most altruistic would agree that the extrinsic component greatly shapes the intrinsic.

What you are facing today with the impeachment of the Chairperson of the Judicial Service Commission and the physical assault on the Secretary to the Judicial Service Commission are the extrinsic dimension. When the Eighteenth Amendment to the Constitution was allowed to be passed by the Supreme Court, some of us were of opinion such outer aberrations might be the result.We had read as Law Students in 1961 or so as to what Lord Acton had said in 1887- “Power tends to corrupt, and absolute power corrupts absolutely” said he.

Checks and balances were not designed by Law for cosmetic reasons.  The concentration of power in one arm disturbs the delicate balance of power among the three arms of Government.  When there was already an imbalance of power, further concentration was a recipe for disaster.  To understand the extrinsic evolvements in our country we must understand what took place in the field of Constitution making in Sri Lanka.

For constraints of time I will not start from 1947. Let me begin with the pre-natal period of the present Constitution. The 1978 Constitution laid the foundations for a changeover from the Anglo – Saxon model of a Parliamentary Democracy to a centralised, almost absolute Presidency, modeled on the German/American Presidential system, though paying pious lip service to Parliamentary Democracy and Parliamentary traditions. While seemingly following the American model, the strict division of powers, between the executive, legislative and judicial, contemplated by Montesquieu, was conveniently ignored.

Before introducing the 1978 Constitution, Article 4 of the 1972 Constitution which read as “The sovereignty of the People is exercised through a National State Assembly of elected representatives of the People” was changed to read as follows: ‘The sovereignty of the People is exercised through a National State Assembly of elected representatives of the People and the President who shall, subject to the provisions of the Constitution, be elected by the People”.

So too Article 5 of the 1972 Constitution was amended to replace the National State Assembly, with the “National State Assembly and the President”, as being the  supreme instruments of state power of the Republic.

The more important amendment relevant to our deliberations here was that the Executive power, including the defense of Sri Lanka, which was exercised by the President and the Cabinet of Ministers according to the 1972 Constitution, after the Second Amendment, was to be exercised solely by the President, who happened to be the Executive President, unlike the earlier President who was a creature of the Legislature. The Cabinet of Ministers was to thereby lose its importance. Still the Cabinet is sterile. You hardly know these days whether a Cabinet of Ministers exists and what its views are!

This changeover sought by the Second Amendment to the 1972 Constitution completely metamorphosed the institutional set up introduced by the 1972 Constitution.

The Second Amendment to the 1972 Constitution was the catalyst that produced the 1978 Constitution. First the Second Amendment, and then the 1978 Constitution, transformed the office of the President of the Country from a creature of the Legislature to be the controller of the Legislature.

The President of the Democratic Socialist Republic of Sri Lanka was not only going to be the Constitutional President but also the Executive head of the country as well. Like the President of the United States he was to be a Constitutional head plus the Prime Minister, two roles rolled into one.

He would appoint the Prime Minister and the other Ministers of the Cabinet.  (Vide Article 43(3) and 44 of the 1978 Constitution).

 He would appoint other Ministers not of cabinet rank too. (Vide Article 45-ibid).

He would not cease to be the leader of his political party and therefore it would be his policy that would be implemented.(Vide Article 31( 1) and 33(a)- ibid). So the fertilization and conception for the Chintanayas of the future  had taken place then.

The President would not be a member of the Legislature but from time to time he would use his right of audience to address the Parliament very much like the President of the United States who  would address the Congress when he felt disposed to deliver a message (Vide Article 32 (3)- ibid).

In other words the President was to become the supreme instrument of State Power of the Republic under the 1978 Constitution. But he was much more than a mere primus inter pares as far as the institution of the President and the Legislature were concerned.

The President was to become the head of the Cabinet of Ministers. (Vide Article 43(2) ibid).

The whole administration was to be brought under his control (Vide Article 54 – ibid). By virtue of his office he could give orders directly to any department or official. He could call for any report, documents or any other information from any department directly.

It was said that the President of the United States was a dictator for four years. In the case of Sri Lanka not only is this dictatorship extended by two more years, but it applies with far greater force here! The Cabinet is the President’s creature. Most importantly, by allowing Members of Parliament to become members of the Cabinet, Parliament as an institution has became emasculated.  Members of the Cabinet are beholden to the President, as they hold office at the President’s will and pleasure. (Vide Article 44(3) ibid).   They serve their Master and do not hold any allegiance to the institution of Parliament.

In the US, the House of Representatives and the Senate are completely divorced from the Executive.  The Legislature is not an appendage to the Executive, but actually acts as a check on the Executive.  With the evisceration of this separation, the Executive in Sri Lanka becomes even more powerful.  It is no surprise then that much respected stalwarts of Parliamentary Supremacy and Democracy in Sri Lanka have  become starlets kept by the Executive today.

Worse still the President was to keep himself insulated from blame for acts of omission and commission committed by him because it would be the Ministers who would be questioned and criticised in the House for such acts for which the President may himself be responsible.  Were there to be a challenge of no confidence in the Government, the Prime Minister and the rest of the Cabinet would have to face it, since the President was not there to answer the criticisms that were to be leveled at the Government of which he is the fountainhead.

The President of the Republic according to the Standing Orders of the Parliament cannot be the subject of any adverse comment. And Article 35 of the Constitution assured immunity to the President from suits. As you can see the role of the President appears to be fashioned in the image of a King. In fact Mr.J.R.Jayewardene once said that he is the last of the lineage of Royalty in Sri Lanka!

Since the Presidential Elections would not coincide with the election to the Legislature the possibility of the Legislature and the Executive sporting different political complexions was definitely possible, as indeed we did have such parties of different hues called upon to co-habit after the 2001 Election.  However, this was hardly a check on the powers of the Executive.  The manner in which the then President cut the Gordian knot by taking over three Ministries stultifying the then existing Legislature’s performance thereafter, proves the point.  The emasculation of Parliament is almost complete with the power the President wields to prorogue and dissolve Parliament.

What was to be noted was that the Presidential System initiated by Mr.J.R.Jayewardene offered virtually unlimited scope for wielding absolute power, albeit for a limited period then. But the taste of unlimited power grows with time and office and the lust cannot be easily satiated. So the changeover brought about by Mr.J.R.Jayewardene must be deemed to have been designed to keep the incumbent in office of the President of the Democratic Socialist Republic of Sri Lanka in absolute and unfettered power. In consequence, fundamentals of good governance such as accountability, transparency, consideration of conflict of interests and the avoidance of certain actions thereby, were all sacrificed at the altar of self interest. Yet after the demise of President Ranasinghe Premadasa it was not Mr.JRJ’s Party which reaped the benefits of his constitutional tomfoolery.                                      

This brings us on to the state of the Law under the Constitution pertaining to the Judiciary. It is important to examine whether there are provisions in the Constitution which favour the interference by the Executive vis a vis the Judiciary. A Constitution tailor-made for the enhancement and the stabilising of the power of the Executive President must no doubt have such secret innovations. Until the passing of the Seventeenth Amendment to our Constitution the discretion of the President with regard to the appointing process was essentially absolute.  The 17th Amendment restored some balance to the system and made the separation of powers contemplated in Article 4 meaningful.

Before getting on to the calamity that befell our Constitution thereafter, a word relating to the Office of the Attorney General may not be out of place. The Attorney General is the first Law Officer of Sri Lanka and the chief legal adviser to the Government. He and his officers are legal advisers of the national Government of which the Executive President is the head. The close relationship between the Attorney General’s Department and the Executive is thus visible. The relevancy of this would be referred to anon.

Dr.Colvin R. de Silva once pointed out “in the field of independence of the judiciary and of judicial independence it is the upper echelons of the judiciary that most matter being the final guardians of such independence against executive intermeddling and even legislative invasion.” (vide Socialist Nation of 09/08/1978).

The new 1978 Constitution provided for a transitional provision (Article 163) whereby all judges of the Supreme Court and the High Court established by the Administration of Justice Law No: 44 of 1973 holding office on the day immediately before the commencement of the Constitution ceased to hold office thus ensuring that thence onwards the appointments to the Higher Judiciary could be kept within the Executive President’s control.

It is to be noted that Article 164 categorically stated that all minor judicial officers and such officers and employees could continue in service or hold office on appointment under the same terms and conditions as before (the 1978 Constitution came into effect) But why were judges of the superior courts handpicked to “cease to hold office” while the minor judicial officers were allowed to continue? Did it give the then   President the liberty to pick and choose for appointment to the Higher Judiciary those favourable to the Executive, leaving out others?

Since then there has been an unhealthy practice of appointing comparatively very young State Officers from the Attorney General’s Department to the Higher Judiciary in large numbers thus effectively debarring older and experienced Original Court Judges as well as senior members from the Unofficial Bar or even senior educated Academics from the Universities entering and/or reaching the higher echelons of the Judiciary. By virtue of their long stint at the Attorney General’s Department these Judges carried with them a conditioned reflex which favoured the State generally. They were also necessarily quite close to the Executive by virtue of their having had to hobnob with politicians during the course of their day to day official life at the Department. This is perhaps the type of judges who, in the words of Lord Atkins’ famous dissent, become “more executive-minded than the Executive”!

Today the Superior Courts consist of large majority of Judges who entered the Higher Judiciary directly from the Department. They have had no experience at the Original Courts, especially the Civil Courts, except for some who came up from the High Courts, which mainly did Criminal cases at the time they were recruited from the Attorney General’s Department. I had noticed the ability to appreciate the nuances of Civil Law notably lacking among these recruits from the Department when I was on the Bench. You cannot blame them. The appointing authority if it was circumspective and farsighted instead of being offensively selfish could have seen through the consequences of such appointments. A long stint at the Original Judiciary is expected to mature and sober the incumbents before they take on responsibilities in the Higher Judiciary.

The role of the Attorney General and so-called Independent Commissions of Inquiry in relation to the Executive Presidency came into focus a few years ago. The International Independent Group of Eminent Persons (IIGEP) who were invited by the current Executive President himself from a number of countries to observe the work of the Commission of Inquiry to Investigate and Inquire into Serious Violations of Human Rights, in their final Public Statement released before withdrawing from their responsibilities in disgust said as follows “An astonishing event occurred in November 2007 at the plenary meeting held between the Commission and the IIGEP. A letter dated 5th November 2007 from the Presidential Secretariat and addressed to the Chairman of the Commission was revealed to the meeting. It stated that: ’The President did not require the Commission to in any way consider, scrutinize, monitor, investigate or inquire into the conduct of the Attorney General or any of his officers with regard to or in relation to any investigation already conducted by the relevant authorities’”.

The report goe s(vide page 13 under the heading (a) The role of the Attorney General):-on to say “It was the single most important event prompting the IIGEP to decide shortly thereafter that it should bring its presence in Sri Lanka to an end”! In this case the IIGEP had been expressing its concern about the role of the Attorney General from the very beginning of its work saying there was a fundamental conflict of interest since the Attorney General while being legal adviser to all levels of the Government including the armed and security forces and the police was at the same time potentially in the position of being a subject of the inquiry where the incriminating hand by the dependents of the victims pointed at the Armed services, Police and paramilitary armed units.

It would therefore not be wrong to conclude that the Executive Presidency is in a position to interfere with the Judiciary on account of its close relationship with the Attorney General’s Department. The appointment of personnel in large numbers from the Attorney General’s Department to the Higher Judiciary can be seen as an extension of the process of such interference.

It might be argued that in the United States the appointments to the Supreme Court are made by the President. There is a glaring difference. The President of the United States, it must be noted, is hamstrung by the concurrent power of approval conferred by the Constitution on the Senate. As stated earlier, the Senate is not a mere appendage to the Executive, and thus takes its tasks seriously.  The Senate does not toss aside its obligations as a mere formality. That august body delves deep into the integrity, moral uprightness and the general demeanour of the President’s nominee. We saw this independence manifest itself a few years ago with one of the nominees of President George W. Bush.

Let me now come over to the national calamity – the Eighteenth Amendment. The Eighteenth Amendment has fundamentally transformed Sri Lanka’s political system, stripping away even the façade of democracy. It ended Presidential term limits, eliminated the Constitutional Council, increased the Executive’s control over appointments and gave the President the power to regularly attend and address Parliament, without being subject to question. It has removed vital checks on Executive power and has further undermined Sri Lanka’s imperfect democracy.  As we traced at the outset the Executive was already hegemonic.  Now the hegemonic Executive President had been made a juggernaut!

Were the consequences of removing vital checks on the Executive unknown to our Higher Judiciary? Rebecca Buckwalter-Poza of the Asian Human Rights’ Commission had said quite some time ago,that “Presidential term limits are critical to democratization. The concept of Executive term limits has been a part of discussions of democracy since its inception in ancient Rome and Athens. Without term limits, an individual and party may accumulate tremendous power. Incumbency advantages allow them to increase and preserve that power perpetually. The incumbent may rely on popular support, regime tactics, and opposition fragmentation to stay in office and set the country’s agenda ad infinitum. The consequences extend beyond the immediate issue of individual accumulation of power over a lifetime. As power becomes concentrated with a single individual and party, the range of views within the party decreases and opposition parties weaken and fragment, diminishing the representation of diverse views in democracy. The weakening of opposition parties undermines electoral choice, as voters have fewer alternatives to the party in power. Government and politics stagnate.”

She further continued- “In the absence of a Presidential term limit, corruption will increase within and outside of government. As an Executive and ruling party accumulate power, they become more likely to abuse that power. Parties are less vigilant in rooting out vice and officials are more prone to corruption when they perceive little threat of removal or electoral repercussion. Conversely, without the potential for political turnover, businesses and other non-governmental actors have a greater incentive to invest in bribing and corrupting government officials, whose positions are more likely to be long-term and secure.”(unquote)

All that this Political Consultant had said even before the Eighteenth Amendment became Law here, have found confirmation in Sri Lanka later.

The Eighteenth Amendment expanded the power of the Executive to make appointments, eroding the independence and power of other government actors and branches. Changes to the appointment process within the Eighteenth Amendment has presented a special threat to the independence of the Judiciary. The President’s expanded appointment powers has extended to the selection of the Chief Justice and the Judges of the Supreme Court, the President and the Judges of the Court of Appeal, the Members of the Judicial Service Commission other than the Chairperson, the Attorney-General, the Auditor-General, the Parliamentary Commissioner for Administration, and the Secretary-General of Parliament. Additionally, the Eighteenth Amendment’s expansion of the President’s privileges with regard to Parliament has compromised the autonomy of Parliament. The prerogative to address Parliament and the acquisition of full Parliamentary privileges has significantly increased the President’s influence on the Legislative branch, virtually eliminating the separation of powers between the Executive and the Legislature.

Thus the 18th Amendment has destabilised the Sri Lankan political system. Its effects will only grow with time. The drama taking front pages in the Newspapers these days is only proof of such demoralizing effects. The Amendment has removed essential limits on Executive power and has crippled the Judiciary and reduced the independence and influence of the Parliament; further, it has ensured political stagnancy and precluded progress. By, passing the Eighteenth Amendment, Sri Lanka has destroyed what democratic framework that was in place rather than improving it.   When the Supreme Court decided on this issue it ought to have borne in mind the precarious balance of power and ought to have realised that changes of this nature change the essential structure of the Constitution and as such the very nature of a democracy.

Thus the Executive power under the 1978 Constitution, which is the Constitution still in vogue with many amendments so far, is reposed  absolutely in the President. But the checks and balances on his arbitrary activities have been effectively blunted. The office has all the hallmarks of a veritable dictator.  The desire to hold on to power by any means seems to have motivated the enactment of the existing Constitution which was passed effectively with the help of the steamroller majority that Mr.J.R.Jayewardene  enjoyed during his tenure of office  and now the majority enjoyed by the present incumbent has given birth to the Eighteenth Amendment. Use of violence, deception, and unethical means   characterized JRJ’s tenure in office. Stoning of Judges’ residences found its origins during J.R.’s time.

He effectively established a constitutional structure which appeared democratically feasible but in actual fact was a design for dictatorship. His deception lies in his successful enactment of the present Constitution. The present incumbent seems to be proving himself to be a worthwhile political progeny. And he is a self-confirmed artiste with histrionic abilities!

It is in the light of such constitutional provisions one has to look at the unfortunate assault effected on the Secretary to the Judicial Service Commission and the Impeachment process now enacted on the present incumbent to the post of Chief Justice.

No one had dared to assault a Judge until recently, just like none had stoned Judges’ houses until it was done during J.R’s time. It is the gumption that none would punish them because they are protected that allows such thugs to resort to such acts. There are some politicians who would raise the bogey of foreign conspiracies, and magnify insignificant incidents, as reasons for such happenings, forgetting that such occurrences, whatever be the reasons that prompted them, cannot be condoned.

Then again the process adopted to impeach the present holder of the office of the Chief Justice has been roundly condemned as unconstitutional and violative of any notion of Natural Justice or fair play.  The public domain is filled with learned discourses on this debacle and there is little that can be added, except that it is the logical extension of the process of aggrandizement of power by the Executive to the detriment of the judiciary and democracy.  And if I may say so, honest reflection will show that the Judiciary played its role in allowing this to happen.

To state that the extrinsic dimension of the independence of the Judiciary is in a perilous state would be an euphemism.  Let me now move over to the intrinsic dimension.

Whatever may be the extrinsic outward offensives undertaken and orchestrated by ill-advised political stooges and others vis a vis the Judiciary, there is an inner dimension which Judges must not lose sight of. By virtue of his or her office a Judge has per force to be independent. If a Judge has a condition of mind that sways judgment to one side or the other and renders such Judge unable to exercise his or her functions impartially in a particular case then his or her Independence could be said to have been lost. It is an elementary rule of natural justice that a person who tries a cause should be able to deal with the matter before him or her objectively, fairly and impartially.

No one can act in a judicial capacity if his or her previous conduct gives ground for believing that he or she cannot act with an open mind. The Law requires even handed justice from those who occupy judicial office. It expects the Judge to come to his or her adjudication with an independent mind without leaning towards one side or the other in the dispute. A judge must not be oppressed by the high status of a party in the dispute. In Courts of Law there cannot be a double standard- one for the highly placed and another for the rest. A Judge should have no concern with personalities who are parties to the case before him or the lawyers appearing for them but only with its merits. Judicial bias may be inferred sometimes from the manner in which a judge conducts the proceedings. Not granting a fair hearing to one of the parties may also lead to an inference of judicial bias.

While it would be naïve to think that the extrinsic aspects have no effect on the intrinsic elements of independence, the ultimate power to resist adverse extrinsic elements lies in how Judges control the intrinsic elements. It is the proper exercise of the intrinsic elements that is the true source of power for a judge.  A judge who deals purely on the merits of cases and who respects the Bar whilst being firm will get the reciprocal respect from the Bar.  There is no substitute for this respect.

There is also nothing that a tyrant fears more than an independent judge. A Dictator is not as worried about protesting or striking judges as he is about judges who uphold the Law.  As Judges we must remember that manipulating crowds and processions are in the domain of the political animal.  Judges who, by virtue of their office, are isolated cannot win that battle easily. The battle that can be won of course is the battle in their domain – the legal domain. 

Being independent does not mean holding against the powerful, but being unafraid to do so.  A reaction which results in holding against the Executive merely because the Executive is interfering with the Judiciary is as bad as being afraid of the Executive or seeking to curry favour from the Executive.  Such a situation will only play into the hands of those who seek to undermine the Judiciary.  Balance, though difficult at times, must be maintained. 

 After I made my speech in all three languages on being welcomed by the Bar consequent to my elevation to the Supreme Court, there was heavy criticism by a senior lawyer which appeared in the papers. This irritated my close friends. I laughed it off. A week or so later that senior lawyer appeared before me. I had studied the case the previous night and found merit in his case. I allowed both Counsel on either side to address me, as they would normally do and gave the determination in favour of the senior lawyer who had castigated me in the papers.

My lawyer friends were even more annoyed. One of them phoned and said “You have lost a good opportunity to teach that fellow a lesson” meaning the senior lawyer who criticised me. “You should have dismissed his case and taught him a good lesson” he said. I retorted “What nonsense! A lawyer fights his client’s case. If a Judge does not like the Counsel and therefore make a one sided order purposely, his client would suffer. My problem with the lawyer is something else. Don’t talk like that” I warned him. I did not allow the conduct of the lawyer turning abusive towards me, to colour my judgment.

Let me point out some of the common contributory causes, which lead to judicial bias-

Political pressures brought about directly or indirectly.

Desire on the part of a Judge to curry favour for his or her future prospect.

Pecuniary interest of the Judge in the subject matter of the case before him or her.

A desire to patronize any former colleague at the Bar or elsewhere.

Inherent tendency in a Judge to show favour to certain classes of cases.

Interest of the Judge in one or the other litigating parties for any reason whatsoever.

There are many more.

 A Judge needs to be alert with regard to his or her conditioned reflexes when hearing a case. We are all human. But it would do us good if we know ourselves – know our biases, prejudices, predilections and so on.  Inter alia gender bias, communal bias, racial bias and political bias have been noticed in recent times.

I know of a Lady Judge who would not seriously consider the need to have corroborative evidence to support that of the complainant in a rape case, regardless of how reliable the evidence was. I know of a Judge of an Original Court who refused to read a judgment of the Supreme Court produced in his Court by Counsel, which recommended corroborative evidence to support the confession given by the accused in a case under the Prevention of Terrorism (Special Provisions) Act with regard to the actual happening of the event mentioned in the charge sheet. The principle there was, even if a confession might be considered to have been voluntarily made, if the act confessed did not take place in reality how could an accused be convicted. Since the Judge refused to accommodate the Supreme Court Judgment in his anxiety to convict the accused, the matter is now in appeal.

There are other interesting cases of judicial bias. A senior High Court Judge told me this about thirty years ago. This Judge had been recently appointed a High Court Judge and sent to this station. A senior lawyer who practiced in that Court had been a batch mate of the High Court Judge at the Law College. The lawyer would daily come into the Judge’s Chambers and wish him “Good Morning” and inquire about his health and conveniences at the Official Bungalow, about his family, children and so on. The Judge attributed the lawyer’s concerns to their friendship at Law College until one day the Judge casually walked up to the window overlooking the pathway within the Court’s premises. The lawyer had just left after inquiring into the health and well being of the Judge. Standing behind the curtain in his Chambers, the Judge overheard the lawyer telling a client in Sinhalese “Work is done. I have given the Judge’s dues. You will be acquitted. You must bring me extra Rs.5000/- before evening today after you are acquitted”! The Judge was shocked. On looking into that day’s trial cases he found the one in which his Law College friend appeared, there was hardly any evidence to convict the accused. The lawyer knowing that the accused would be acquitted had made use of the Judge’s name to make a fast buck.

The Judge was furious. What did he do? He while hearing the case put many matters into witnesses’ mouths, made out a case which was not there and convicted the accused sentencing him with maximum punishment. I inquired from him “Sir! Was it correct to punish the client for a mistake made by the lawyer?” He said “May be you are right. But at that time I was furious and until I convicted him I could not control my anger. I refused permission to any lawyer thereafter to come into my Chambers.” Judicial bias thus could be the outcome of anger and annoyance.

A senior lawyer had played out several clients. While hearing the criminal cases against him I had shown my disapproval of his conduct at some stage. That was good enough for the accused and his lawyer to say I was prejudiced and have the case transferred to another Judge when in fact the lawyer’s cases were at their tail end after leading so much of evidence. I was annoyed with the transferring authority for not asking me anything or calling for my observations. I discussed this with Justice Jameel, who was then a High Court Judge. He said “The fact that you are annoyed and angry confirms the fear of the accused. What does it matter if a few cases are less for you? Whether this lawyer will ultimately get convicted or not is not your concern. You have done your part. Just leave it at that!” The lawyer died soon thereafter – due to natural causes of course!

Faith in the administration of justice is one of the pillars on which democratic institutions function and sustain. To establish that faith, Judges must do what is right both legally and morally. Whatever difficulties you face from outside agencies you must try your best to do what is legally and morally expected of you. For that we must require a degree of detachment and objectivity in judicial dispensation. If we think that we might not be impartial in a case it is best to have it transferred to somebody else. Nothing should be done which creates even a suspicion that there has been an improper interference with the course of justice. But if it is necessary to act without fear or favour, you must do so.

When I was District Judge/Magistrate, Mallakam the Army had shot dead a lame person traveling in a cycle near their Camp in Atchuveli. I had to go for the Inquest. They said in consequence of a shot from the direction in which the cyclist was traveling they had shot in self defense. Since the killers were known I asked the Police to take into custody the two soldiers who had shot and after Inquiry into the question of self defense they could be released. This had irked the Army. The next day when I walked up to my Chambers from my Official Bungalow behind the Courts there were over 25 soldiers with guns pointed at my direction standing outside the Courthouse. There were a number of Trucks and Jeeps inside the premises of the Court.

When I went into my Chambers I inquired from my Arachchi why they were there. “May be because you had ordered the arrest of two soldiers” he said. I asked him to call the Commanding Officer of that unit. One Major Wijeyeratne came into my Chambers. When questioned he said that they had come to give protection to the two soldiers. I told him protection to all prisoners is given by the Police. I further said there was need for the Army to be in the Court premises. Then I looked into his eyes and told him “I give you two minutes to take the Army personnel and your vehicles out of the Court premises.”He just stood there stunned. “I hope you heard me Officer!” “Yes Sir!.” There was a salute and the vehicles were all out within two minutes.

But another Officer could have refused. I had thought if that happened the Court was not going to function that day, prisoners were to be in Police custody and litigants and Staff would wait for the Army to leave even until 4.30 p .m. I was going to inform the Chief Justice of what was happening.

The Officer, Major Wijeyeratne, I must say was a gentleman! Therefore I had no problem! If you are known to be serious in carrying out your duties I believe those who are used to violence still respect you.

I know these days there is much stress in carrying out your duties. Your personal security is at stake.  Interference extends not just to your duties, but to other areas as well.  Even this Conference was sabotaged. That is why I attempted to give one tenth of my pension to your Association as my meager contribution to defray your expenses. But your President said I am a Guest and that they would not like to tax me.

I, however, see a silver lining at the end of all this. If the powers that be feel threatened by the Annual Conference of the Judges, surely that is a sign of fear.  That is a sign of weakness.  That is a sign that what you do and say matters.  That is a sign that together you are strong.  That is a sign that the tide has turned, that a battle has been won and that intrinsic independence shines strong amongst you – the younger members of the Judiciary.

You must continue performing your duties however challenging they are, bearing in mind the need to be balanced.  You must continue to remain together, for you can be certain that there will be moves to split asunder the unity.  You must continue this historic struggle for extrinsic independence.  Not just for the judiciary but for democracy. Thank You!

* Keynote Address at the 2012 Annual Conference  of the Judicial Service Association of  Sri Lanka on December 22, 2012


Character and Leadership

December 29, 2012

Character and Leadership

by Dato’ Ariff Sabri@http://sakmongkol.blogspot.com

Samuel SmilesThe Government of a nation itself is usually found to be but the reflex of the individuals composing it. The Government that is ahead of the people will inevitably be dragged down to their level, as the Government that is behind them will in the long run be dragged up.

In the order of nature, the collective character of a nation will as surely find its befitting results in its law and government, as water finds its own level.

The noble people will be nobly ruled, and the ignorant and corrupt ignobly. Indeed all experience serves to prove that the worth and strength of a State depend far less upon the form of its institutions than upon the character of its men.

For the nation is only an aggregate of individual conditions, and civilization itself is but a question of the personal improvement of the men, women, and children of whom society is composed.

Samuel Smiles (a Scottish author and reformer pic above) wrote the above. Every leader of any nation has grappled with the issue. What is the secret ingredient of a good government? Smiles had the answer- the secret of good government is having good people heading it.
singapores-lee-kuan-yewLee Kuan Yew (left) tackled this issue a long time ago, and set out to cultivate good people to lead the Singapore government. He must have done something right, because Singapore is now the richest country in the world.
North of the causeway, the UMNO leader who ruled for 22 years as Prime Minister and many years as, Senator, Minister and Deputy Prime Minister, must have done something wrong. Our country is getting top placing for the wrong reasons.
Mahathir has admitted his failure to improve the Malays, yet the Malays still want to support him? Mahathir has admitted that after 55 years, Malays are still beggars in their own country; Malays are urged to continue supporting UMNO? Are Malays political masochists? You get high as you are abused more. You want people molded after Mahathir’s image to come back and lead us so that they can whip us further to get us high?
We are looking for people with commitment, deep-seated beliefs in democracy, resolute in putting the interests of others before self. These traits are not inherited. Otherwise we will not have Najib Razak and Hishammudin Hussein. They didn’t inherit the characteristics of the fathers.
Just look at the state by which we are governed, it is clear that indeed the worth andTun Dr. Ismail strength of a State depend far less upon the form of its institutions than upon the character of its men. We are like this because our leaders lack character and integrity. The man, who says he is Prime Minister to all, keeps quiet when citizens are set upon and harm inflicted upon them.
The Home Minister in charge of the Police is equally mute suggesting that he has no character and integrity to hold such office. The rakyat are being bullied and set upon, the characterless people leading the State, the Ministry, the institution keep quiet. Tun Razak, Tun Dr Ismail (right) and Tun Hussein will never countenance these things.
We look around us, we don’t see Malaysia being deficient in the number of institutions that we have. We have the judicial institutions, the law enforcement agencies, we have the state legislative councils, we have Parliament, and we have Kings. Indeed we have everything. What is missing is the character of the men heading those institutions.
Where is the democratic right to move freely across this country? Interests groups are stopped from going into FELDA schemes because some supporters of the government will not allow NGO’s opposed to FELDA to speak to settlers. What is there to hide? If the people doing the explaining break the law, charge them under that particular wrong. The FELDA settlers are people who can think for themselves.
When I wrote about the FGV listing a long time ago, I received many e-mails suggesting that I was envious of FELDA people getting money. Now, FELDA people are realizing that have been conned into transforming their tangible assets into paper assets tradeable in the stock exchange where control over the assets depends on the quality of people managing those assets. Well, you have people like Isa Samad and his sycophants watching over the FELDA assets, I am sure settlers can sleep peacefully at night.
Opposition parties hold ceramahs under the watchful eyes of the Police, and the Police did not stop other groups from causing disturbances and bodily harm. We know these trouble makers are UMNO people- yet the Prime Minister for all the people, maintains his silence on this infringement of democratic rights. Is UMNO, which is now led and headed by many people lacking in character and integrity, condoning violence and aggression on people?
Zam2I was listening to an old video clip showing Zainuddin Maidin’s response to questions posed to him by Al Jazeera. The TV station showed scenes of demonstrators being fired upon by water cannons and teargases. The response ex tempore, by Zainuddin as Minister of Information then would make any Malaysian citizen cringe in embarrassment.
An Information Minister was talking like a person with a passable lower certificate of education. Not only could he not answer the questions in a rational sounding manner, he went immediately into a tirade accusing the media of manipulating the news.
How could a person of this caliber represent Malaysia as an Information Minister- he was simply gibberish. Fast forward to now, we can get a clear picture as to why the same person, not a Minister any longer can give the answers he gave when asked to assess former Indonesian President’s visit to Malaysia recently. Only a person of this mental caliber can come up with similarly hostile and hopelessly incoherent statements about BJ Habibie’s recent private visit to Malaysia.
And the Prime Minister of Malaysia, equally vacuous and pathetic, rationalized the incident by saying that these deranged statements are to be expected during `erection’ year.

The Choice: TIME’s Person of the Year

December 29, 2012

The Choice: TIME’s Person of the Year

By December. 19, 2012

In 1782 an expatriate French aristocrat named J. Hector St. John de Crèvecoeur who lived in New York’s Hudson Valley published a book in London called Letters from an American Farmer. The third letter was titled “What Is an American?” That question reverberated in the late 18th century as the Old World tried to make sense of the New. It’s still relevant 230 years later, in part because Americans are changing even as America itself remains much the same.

Crèvecoeur wondered, “What then is the American, this new man?” He was a citizen by choice, not birth — he had decided to come here. Such a thing had never existed before. In many ways, Barack Obama is the 21st century version of this new American. But he’s more than just a political figure; he’s a cultural one. He is the first President to embrace gay marriage and to offer work permits to many young undocumented immigrants. There has been much talk of the coalition of the ascendant — young people, minorities, Hispanics, college-educated women — and in winning re-election, Obama showed that these fast-growing groups are not only the future but also the present. About 40% of millennials — the largest generational cohort in U.S. history, bigger even than the baby boomers — are nonwhite. If his win in 2008 was extraordinary, then 2012 is confirmation that demographic change is here to stay.

Obama is the first Democratic President since FDR to win more than 50% of the vote in consecutive elections and the first President since 1940 to win re-election with an unemployment rate north of 7.5%. He has stitched together a winning coalition and perhaps a governing one as well. His presidency spells the end of the Reagan realignment that had defined American politics for 30 years. We are in the midst of historic cultural and demographic changes, and Obama is both the symbol and in some ways the architect of this new America. “The truth is,” the President said in the Oval Office, “that we have steadily become a more diverse and tolerant country that embraces people’s differences and respects people who are not like us. That’s a profoundly good thing. That’s one of the strengths of America.”

Time-Barack ObamaAll elections are about change, and 2012’s was as well. Pretty much everyone voted for change of some kind: 49% of voters wanted to change the President, while 51% of voters wanted the change that Obama promised four years earlier.

The pollster Frank Luntz told me that 40% of America is ecstatic, 20% is accepting and 40% thinks the country is going to hell. “The only other time we’ve seen this was FDR in 1936,” he said. “Those who are alienated believe the President and his policies are not grounded in American values.”But whose America is that? Is there a battle between the old America and the new?

Obama would say no. He sees his time in office as a kind of convergence of past and future. “I think about this eight-year project,” he says, as one in which “we’ve also accommodated all the demographic changes and cultural and technological changes that are taking place and been able to marry those with some of the old-fashioned virtues of hard work and discipline and responsibility — all in a way that allows us to succeed and to thrive.”

That’s the new America. And it’s finding its voice: the President we heard at the wrenching memorial service in Connecticut was more assertive, more personal, more willing to risk his political capital for what he truly believes.

At the end of Invisible Man, Ralph Ellison’s great 1952 novel about racial injustice, the central character says, “America is woven of many strands; I would recognize them and let it so remain … Our fate is to become one, and yet many — This is not prophecy, but description.” Just 12 years ago, Obama was so invisible that he attended the 2000 Democratic National Convention in L.A. and watched it on the Jumbotron in the Staples Center parking lot. Today he is universally visible — and known. But he would agree with Ellison’s observation that this change is indeed description and not prophecy.

The new America is not so much the old e pluribus unum — out of many, one — but, as Ellison says, one and yet many. That is Obama’s America. For finding and forging a new majority, for turning weakness into opportunity and for seeking, amid great adversity, to create a more perfect union, Barack Obama is TIME’s 2012 Person of the Year.

Time Magazine’s Person of the Year: President Barack H. Obama

By December. 19, 2012

Twenty-seven years after driving from New York City to Chicago in a $2,000 Honda CivicObama for a job that probably wouldn’t amount to much, Barack Obama, in better shape but with grayer hair, stood in the presidential suite on the top floor of the Fairmont Millennium Park hotel as flat screens announced his re-election as President of the United States. The networks called Ohio earlier than predicted, so his aides had to hightail it down the hall to join his family and friends. They encountered a room of high fives and fist pumps, hugs and relief.

The final days of any campaign can alter the psyches of even the most experienced political pros. At some point, there is nothing to do but wait. Members of Obama’s team responded in the only rational way available to them — by acting irrationally. They turned neckties into magic charms and facial hair into a talisman and compulsively repeated past behaviors so as not to jinx what seemed to be working. In Boca Raton, Fla., before the last debate, they dispatched advance staff to find a greasy-spoon diner because they had eaten at a similar joint before the second debate, on New York’s Long Island. They sent senior strategist David Axelrod a photograph of the tie he had to find to wear on election night: the same one he wore in 2008. Several staffers on Air Force One stopped shaving, like big-league hitters in the playoffs. Even the President succumbed, playing basketball on Election Day at the same court he played on before winning in 2008.

But now it was done, and reason had returned. Ever since the campaign computers started raising the odds of victory from near even to something like surefire, Obama had been thinking a lot about what it meant to win without the lightning-in-a-bottle quality of that first national campaign. The Obama effect was not ephemeral anymore, no longer reducible to what had once been mocked as “that hopey-changey stuff.” It could be measured — in wars stopped and started; industries saved, restructured or reregulated; tax cuts extended; debt levels inflated; terrorists killed; the health-insurance system reimagined; and gay service members who could walk in uniform with their partners. It could be seen in the new faces who waited hours to vote and in the new ways campaigns are run. America debated and decided this year: history would not record Obama’s presidency as a fluke.

So after his staff arrived, he left his family in the main room of the suite and stepped out to talk with his three top advisers, Axelrod, political strategist David Plouffe and Jim Messina, his campaign manager. He wanted to tell them what this victory meant, because it was very different the second time. “This one’s more satisfying than ’08,” he said. “It wasn’t just about what I was going to do as President. It’s what I’ve done.” In the end, the outcome would not even be very close, and this realization was sinking in, unleashing something, dropping a shield he had been carrying for a long time. Over three days in November, the man known for his preternatural cool won re-election and cried twice in public. And then, trying to find meaning in a tragedy in Connecticut, he did it again, all but breaking down in the White House Briefing Room.

In mid-December, as Obama settles into one of the Oval Office’s reupholstered chairs — brown leather instead of Bush’s blue and gold candy stripes — the validation of Election Day still hovers around him, suggesting that his second four years in office may turn out to be quite different from his first. Beyond the Oval Office, overwhelming challenges remain: deadlocked fiscal-cliff talks; a Federal Reserve that predicts years of high unemployment; and more unrest in places like Athens, Cairo and Damascus. But the President seems unbound and gives inklings of an ambition he has kept in check ever since he arrived at the White House to find a nation in crisis. He leans back, tea at his side, legs crossed, to explain what he thinks just happened. “It was easy to think that maybe 2008 was the anomaly,” he says. “And I think 2012 was an indication that, no, this is not an anomaly. We’ve gone through a very difficult time. The American people have rightly been frustrated at the pace of change, and the economy is still struggling, and this President we elected is imperfect. And yet despite all that, this is who we want to be.” He smiles. “That’s a good thing.”

Bjarne Jonasson for TIME

The Campaign Team: David Simas ran Obama’s opinion-research team, including focus groups; Stephanie Cutter managed the daily effort to defend Obama and dismantle Romney; David Axelrod, co-author of the Obama campaign story, oversaw the entire strategy from Chicago; Jim Messina, the campaign manager, designed, built and ran the whole campaign from scratch; Jim Margolis, the TV adman, relentlessly bombarded swing-state airwaves for months; Jeremy Bird, the grassroots organizer, created a smarter, larger Obama army than in 2008

Two years ago, Republicans liked to say that the only hard thing Obama ever did right was beating Hillary Clinton in the primary, and in electoral terms, there was some truth to that. In 2012 the GOP hoped to cast him as an inspiring guy who was not up to the job. But now we know the difference between the wish and the thing, the hype and the man in the office. He stands somewhat shorter, having won 4 million fewer votes and two fewer states than in 2008. But his 5 million-vote margin of victory out of 129 million ballots cast shocked experts in both parties, and it probably would have been higher had so much of New York and New Jersey not stayed home after Hurricane Sandy. He won many of the toughest battlegrounds walking away: Virginia by 4 points, Colorado by 5 and the lily white states of Iowa and New Hampshire by 6. He untied Ohio’s knotty heartland politics, picked the Republican lock on Florida Cubans and won Paul Ryan’s hometown of Janesville, Wis. (Those last two data points especially caught the President’s interest.) He will take the oath on Jan. 20 as the first Democrat in more than 75 years to get a majority of the popular vote twice. Only five other Presidents have done that in all of U.S. history.

There are many reasons for this, but the biggest by far are the nation’s changing demographics and Obama’s unique ability to capitalize on them. When his name is on the ballot, the next America — a younger, more diverse America — turns out at the polls. In 2008, blacks voted at the same rate as whites for the first time in history, and Latinos broke turnout records. The early numbers suggest that both groups did it again in 2012, even in nonbattleground states, where the Obama forces were far less organized. When minorities vote, that means young people do too, because the next America is far more diverse than the last. And when all that happens, Obama wins. He got 71% of Latinos, 93% of blacks, 73% of Asians and 60% of those under 30.

That last number is the one Obama revels in most. When he talks about the campaign, he likes to think about the generational shift the country is going through on topics like gay marriage — an issue on which he lagged, only to reverse himself last spring. He connects it to the optimism he felt as a young man, the same thing he always talks about with staff in the limo or on the plane after visits with campaign volunteers. “The arc of the moral universe is long, but it bends toward justice,” reads one of the quotes stitched into his new Oval Office rug — an old abolitionist cry that Martin Luther King Jr. repurposed while marching on Selma, Ala. Obama believes in that, and he believes he is more than just a bit player in the transition. “I do think that my eight years as President, reflecting those values and giving voice to those values, help to validate or solidify that transformation,” he says, “and I think that’s a good thing for the country.”

Few experts predicted two years ago that Obama would be busy writing his second Inaugural Address. Pre-election polling showed depressed enthusiasm among young people and Latinos, for example, amid soaring interest among white evangelicals and the elderly. But the poll questions did not account for Obama’s secret weapon: the people who don’t much care for politics. A sizable chunk of the President’s most ardent backers don’t admire either party yet think Obama is somehow above it all, immune to all the horse trading and favor mongering that politics entails. These voters aren’t political in the cable-TV sense of the word. But in 2012, they stuck by Obama. In the last month of the Obama campaign’s voter registration, 70% of those signed up were women, minorities or people under 30.

The President feels a responsibility to advance the values he sees reflected in the changing electorate. Of the nearly 66 million people who pulled the lever for him, Obama says, “The choice that they made was less about me and more about them, more about who they saw themselves to be.” It’s a lovely sentiment for a winner, but even if Obama’s right, the question now is, Who exactly do they want to be? And can Barack Obama take them there?

Bjarne Jonasson for TIME

The Geek Squad: from left: Harper Reed, the chief technology officer, tweeted “My boss is awesome” after Obama won; Dan Wagner, the chief analytics officer, oversaw a team of number crunchers five times the size of the 2008 group; Dylan Richard engineered much of the software behind the campaign; Andrew Claster used analytics to develop new ways of targeting and predicting voter behavior

The election that Obama won, as he has said repeatedly, was in the end a choice, not a referendum. He proved to be a better option than Mitt Romney, who was an imperfect candidate by most measures. On the issues, Obama did not fare quite as well. While 51% of voters in exit polls in 2008 said they wanted the government to do more, only 43% said so in 2012, and Obamacare still polls badly.

But Obama doesn’t see his legacy in terms of an ideological imprint, like Ronald Reagan’s claim that “government is the problem” or Bill Clinton’s admonition that the “era of Big Government is over.” He says he just wants smarter government and a set of results that he can claim as he leaves office in early 2017: “That we had steered this ship of state so that we once again had an economy that worked for everybody, that we had laid the foundation for broad-based prosperity and that internationally we had created the framework for continued American leadership in the world throughout the 21st century.” Recent history and current headlines suggest he will fall short of achieving all those goals. But if he succeeds, it wouldn’t be the first time this leader beat expectations.

Since the moment Obama arrived on the national scene in 2004, the very idea of leadership has been under assault. Many of the old institutions that once anchored the American Dream have been bled of public confidence. Banks, Big Business, the news media and Congress all polled at or near record lows during his first term. Obama himself was the target of uncommon vitriol, but he has somehow managed to keep the public’s faith.

To understand how he kept his job, the best place to start is where he did. In early 2011, David Simas, a former registrar of deeds in Taunton, Mass., who had become a senior White House aide, switched on what might be called one of the largest listening posts in U.S. history. For months on end, two or three nights a week, Simas and his team secretly gathered voters in rented rooms across the swing states, eight at a time, the men separated from the women. The Obamans poked at their guinea pigs’ animal spirits, asked for confessions and played word-association games. (Among swing voters, Democrat often elicited Barack Obama, and Republican would yield words like old and backward.) Live feeds of the focus groups were shown on computer screens at campaign headquarters in Chicago. The first discovery Simas made held the keys to the kingdom. “Here is the best thing,” he said of Obama when he went back to home base. “People trust him.”

In an age of lost authority, Obama had managed to maintain his. In group after group, the voters told the researchers they believed the President was honest, lived an admirable personal life and was trying to do the right thing. “Here’s what I heard for 18 months,” Simas says. “‘I trust his values. I think he walked into the worst situation of any President in 50 years. And you know what? I am disappointed that things haven’t turned around.’ But there was always that feeling of ‘I am willing to give this guy a second shot.’”

In different rooms, behind different one-way mirrors, Republicans made the same discovery. “There was almost nothing that would stick to this guy, because they just liked him personally,” Katie Packer Gage, Romney’s deputy campaign manager, said after the election. Most of those who had voted for Obama in 2008 were still proud of that vote and did not see the President as partisan or ideological. When Republicans channeled their party’s many furies, attacking Obama as an extremist, it backfired among swing-state voters. “The kind of traditional negative campaign that the Obama campaign did was not available to our side,” explained Steven Law, who oversaw more than $100 million in anti-Obama advertising for American Crossroads and Crossroads GPS.

So even before the first ad ran, Obama had an edge and a way of framing the race. While Romney tried to focus on Obama’s weak economic record, Obama made his race about confidence. The most important poll question in Chicago was, Which candidate is looking out for voters like you? “What we saw these undecided voters doing for literally a year,” Simas says, “looking at two very different people outside fundamental message, tactics and strategy, is, they were making a very trust-based assessment between Obama and Romney.”

This became the through line of the brutal and at times unfair Obama attacks on Romney — the cracks about car elevators, the specious mention of his potentially felonious Securities and Exchange Commission filings, the false claim that he supported an abortion ban without a rape exception, the endless harping on a Swiss bank account once held in his wife’s name. It all spoke to a central message built around trust: One man, despite his failures, had voters like you in mind. The other man, by contrast, knew how to make a lot of money for people you will never meet.

Bjarne Jonasson for TIME

The Geek Squad: from left: Michael Slaby, a veteran of the 2008 effort, hired the tech and data teams and kept them on track; Chris Wegrzyn built the infrastructure and software behind the massive data operation; Teddy Goff, the digital director, ran social-media, online and mobile outreach; Joe Rospars, the architect of online fundraising for Howard Dean in 2004 and Obama in 2008, oversaw digital efforts; Marie Ewald focused on e-mail fundraising, helping raise $690 million online

Of course, Romney turned out to be Obama’s biggest ally in that narrative. But back at campaign headquarters, Simas slapped a poster on his office wall that told an even bigger story. It had three lines: two showing the rise of per capita GDP and productivity in the U.S. since 1992 and one flat line showing household income. He opened all his presentations with the same chart. “Above it was just a phrase from a focus group — ‘I’m working harder and falling behind,’” Simas says. “That was the North Star. Everything we did and everything we said was derivative of that sentiment.” The words of the faceless focus-group participant passed from the rented room to the computer screens in Chicago and eventually right into the President’s stump speech. “As long as there are families who are working harder and harder but falling further behind,” Obama told crowds, “our work is not yet done.”

Message is one thing. but in modern presidential politics, it can’t go very far without a machine, and the machine is what really made Obama cry — first at his final rally, in Des Moines, Iowa, and then at his headquarters the day after the election. Appropriately enough for a campaign that redefined the limits of viral politics, the second set of tears became a YouTube sensation, seen some 9 million times in the weeks after the election, more than any other campaign video of the cycle.

You can see him walk to a microphone, looking easy and confident, chewing his gum. He starts telling the story of his first years as a community organizer on Chicago’s South Side, when he was 25 and trying to find his way, with little success. “It’s not that you guys actually remind me of myself,” he says to the young staff before him. “It’s the fact that you are so much better than I was in so many ways. You’re smarter, and you’re better organized, and you’re more effective … Even before last night’s results, I felt that the work that I had done in running for office had come full circle,” he continues, “because what you guys have done means the work that I am doing is important. I’m really proud of that. I’m really proud of all of you.” Then he breaks down. Tears well and drop.

Obama didn’t have to do much to build this machine the second time around. The same obsessive staff, who had never really left his circle, returned with the same set of techniques, a mixture of old-school community organizing and high-tech social networking: one-on-one conversations with supporters, repeat telephone calls, staffers focused only on organizing volunteers, registration drives where no presidential campaign had tried registration before. But Obama was also obsessed. On a tour through Iowa in September, his state director, Brad Anderson, told him that the campaign had arranged for an early-vote location at a Latino grocery store. “The President loved that,” says Plouffe, who traveled with him. “The Latino community in Iowa is relatively small, but we were trying to harvest every vote possible.” The President even got to play shop foreman at times, as if he were back in the projects overseeing voter-registration teams. A couple of days before the election, he confronted a salaried staffer at a staging office in Ohio who asked the President for a photo. “You’re a field organizer,” Obama replied reproachfully, citing the well-known rule that staff’s first job is to organize others. “You gotta be looking out for your volunteers.”

In its second incarnation, the Obama campaign began to blur and then obliterate the line between politics and daily life for millions of Americans. The President held off-the-record calls with FM disc jockeys in black and Hispanic communities. Aides signed up Latinos at amateur soccer leagues, circulated clipboards in bars and nightclubs and canvassed blockbuster-movie-premiere lines for new voters. “In Chapel Hill for a wedding,” White House aide Tommy Vietor e-mailed Plouffe in mid-September from North Carolina. “Multiple people with Obama clipboards have tried to register me to vote in the 5 hours I’ve been here.” Later that night, Vietor read the specials scribbled on a chalkboard at a bar. The Obama was a shot of Jack Daniel’s and a Pabst Blue Ribbon for $7. The Romney was a shot of Johnnie Walker Gold and a bottle of 1995 Altamura cabernet for $870. The message was breaking through.

And so were the new methods devised by a geek squad convened from multinational ad agencies, corporate consultancies and high-tech start-ups. The goals were the same as ever: more money in the bank, more door knocks, more phone calls, more voter registrations and more voters at the polls. But the methods for achieving those ends in 2012 bordered on the revolutionary. A squad of dozens of data crunchers created algorithms for predicting the likelihood that someone would respond to specific types of requests to accomplish each of those goals. Vast quantities of information were collected and then employed to predict just which television shows various target voters in certain cities were watching at just what time of day — the better to decide where to place TV ads. Facebook, which was an afterthought in 2008, became the new electronic telephone call, employed to persuade more than 600,000 Obama supporters to reach out to 5 million swing-state friends online with targeted messages in the days before the election. One woman in central Ohio who was living with her young voting-age daughter reported that her house got four different visits on the morning of Election Day, each from a different neighbor making sure both women had remembered to vote.

Bjarne Jonasson for TIME

The White House Staff: from left: Jay Carney, the spokesman, handled the White House press; David Plouffe, the political strategist, steered the campaign’s White House outpost; Alyssa Mastromonaco, the deputy chief of staff, kept the President focused; Pete Rouse, the senior adviser, was the go-to troubleshooter; Valerie Jarrett, Obama’s closest adviser, was his sounding board; Dan Pfeiffer, the communications director, decided how to deliver the message

The geek squad also found new ways to make voters turn out their pockets. They refined meet-the-candidate lotteries into an art form, invented a system for texting dollars from a mobile phone that required entering only a single number and experimented with the language of e-mail pitches until they stung. Of his $1 billion campaign-cash haul, Obama was able to raise $690 million online in 2012, up from about $500 million in 2008. More than $200 million of that came in donations of $200 or less, a 10% increase over the history-making frenzy of 2008. In a campaign that big super-PAC money was supposed to dominate, Obama’s operation proved that many small efforts were more powerful than a few big ones. No one in either party thinks campaign finance will ever be the same.

How much of this survives for future Democrats when Obama exits the stage? Obama’s advisers are quick to say it won’t be around for others to tap. Too much of the Obama coalition, they say, is about Obama himself. It might reject anyone who tries to take up his mantle in a few years. “This organization is not transferable,” says a senior campaign adviser. “The next nominee on either side is going to have to build their own coalition.” But the Obama effort is going to try to live on. Bob Bauer, the campaign’s attorney, has been working on a plan for a new organization — likely to be incorporated as a nonprofit beyond the reach of the Democratic National Committee — that will be announced in the coming weeks. The idea is to create an outlet for Obama’s supporters, more than 80,000 of whom said after the election that they were willing to run for public office. A similar effort stumbled in 2009, when Obama reined in his grassroots supporters to avoid ruffling feathers in Congress. But the one thing Obama has learned in his first term is that he won’t be able to accomplish much in the second without an active outside game.

The fifth year of any presidency is always a sweet spot, a golden hour between re-election and lame-duck status, when a President has a chance to think more about history than about the tracking polls. And so the President must now decide how high to reach and what to accomplish while he still can. “I’m more than familiar with all the literature about presidential overreach in second terms,” Obama said at his first press conference after the election. “On the other hand, I didn’t get re-elected just to bask in re-election.”

He began to navigate the issues in the days after the election by scribbling his hopes on a yellow legal pad. Obama has always thought best by writing, and for that reason he struggled to keep a diary during his first term, a task at which he hopes to redouble his efforts over the coming years. “In my life, writing has been an important exercise to clarify what I believe, what I see, what I care about, what my deepest values are,” he says. “The process of converting a jumble of thoughts into coherent sentences makes you ask tougher questions.”

But the yellow pad he began to fill after the election was not for himself or his next memoir. Instead, he wanted to work out what he should try to get done in the next four years, beyond his inbox and legislative to-do list for the next nine months. The immediate goals are clear: a major push on immigration reform and a way to lower the medium-term deficit through a combination of raising tax rates, reforming the tax code and finding some temporary truce between the parties on entitlements. He gathered his staffers for a “40,000-foot” view of what was possible.

They soon discovered that the yellow pad included some things spoken of only rarely during the campaign: dealing with the problem of climate change, for instance, emerged as a major thread, despite all the money the campaign had spent in southeastern Ohio praising Obama’s commitment to coal. He spoke of increasing opportunities for early-childhood education and finding new ways to lessen the burden of college costs. The long lines that forced millions to wait for hours to vote led him to talk about a broad sweep of potential electoral reforms, which would likely include a popular push on campaign-finance reform and new legislation to force states to improve ballot access. He also said he wanted to look at the criminal-justice system. “There’s a big chunk of that prison population, a great huge chunk of our criminal-justice system, that is involved in nonviolent crimes,” he tells TIME. “I think we have to figure out what are we doing right to make sure that that downward trend in violence continues, but also, there are millions of lives out there that are being destroyed or distorted because we haven’t fully thought through our process.”

Prison reform won’t become a top priority of his Administration, but his interest in it signals his determination to expand the boundaries of what a second-term presidency might be. When two states, Washington and Colorado, legalized marijuana for adults in November, Obama decided that federal law-enforcement resources should not be deployed to bust individuals who are complying with state law. “When it comes to drug enforcement, big-time drug dealers, folks who are preying on our kids, those who are engaging in violence — that has to be our focus,” he said.

Obama2In the wake of the killings at a Newtown, Conn., elementary school, Obama asked if the country and its President had done enough in his first term to deal with mass shootings. “I’ve been reflecting on this the last few days, and if we’re honest with ourselves, the answer’s no, we’re not doing enough,” he said before promising to “use whatever power this office holds to engage my fellow citizens, from law enforcement to mental-health professionals to parents and educators, in an effort aimed at preventing more tragedies like this.” He had made similar vows before, after other shootings. But this one affected him more. Never had he cast the issue so starkly as a question of moral and political courage. Never before had he so clearly reproached himself for failing to take action.

White House aides draw a distinction between what is possible legislatively and what they can do rhetorically and through public education. It’s not just what Obama gets passed, they muse; it’s the legacy he leaves for the next occupant of the Oval Office. “You recognize you’re not going to arrive with — you’ll never arrive at that promised land, and whatever seeds you plant now may bear fruit many years later,” Obama says. Only time will tell just how he fulfills that vision.

Which is O.K. with the President. In mid-November, White House aides arranged a postelection screening of the new Steven Spielberg movie Lincoln, inviting the director and much of the cast, including actors Daniel Day-Lewis, who plays the 16th President, and Sally Field, who plays his wife. Obama called the experience of watching the horse trading, corruption and compromise that allowed the passage of the 13th Amendment, which banned slavery, “incredibly powerful.” For Axelrod, who attended the screening and who fought alongside the President through the disappointments and triumphs of the first few years, the story echoed the bruising and at times chaotic battle for health care reform, something he mentioned to his boss.

“Part of what Lincoln teaches us is that to pursue the highest ideals and a deeply moral cause requires you also engage and get your hands dirty. And there are trade-offs, and there are compromises,” Obama says of his favorite President. “Anything we do is going to be somewhat imperfect.”

Obama says he long ago decided that he should not compare himself to Lincoln. But he nonetheless begins his second term with a better sense of what is possible in his job as well as what is not, something Lincoln struggled with as well. “You do understand that as President of the United States, the amount of power you have is overstated in some ways,” Obama says. “But what you do have the capacity to do is to set a direction.” He has earned the right to set that direction and has learned from experience how to move the country. After four of the most challenging years in the nation’s history, his chance to leave office as a great President who was able to face crises and build a new majority coalition remains within reach.

My (surprise) picks for Persons of the Year

December 29, 2012


My (surprise) picks for Persons of the Year*

by Johan Jaaffar

Johan JaaffarWAS mulling over my choice of this year’s Person or Persons of the Year when Heyley Chow gave me an idea. Our encounter was brief but it was certainly an eye-opener. We were at a very interesting wedding reception. The theme was Hindi, so the look, décor and sounds were, what else, very Hindi. Hindi songs filled the air.

Heyley was seated near me. I asked her, if she liked the songs. She shook her head. “You like Gangnam-Style?” I asked. She nodded without hesitation. Heyley was hardly 7 mind you, but she gave me an idea. She likes Oppa Psy or Park Jae-Sang, so do I. I don’t know about her mother Jacynta, but she can’t possibly be a contrarian in this one.

Pys’ Gangnam-Style is biggest ever music video in the history of mankind. On YouTube it has passed the one billion-view mark, overtaking Baby by the teen sensation, Justin Bieber. One in every seven humans has seen Psy in action. He needs just one song to do that.

So Psy is one of my favourites to be the Person of the Year. No, I am not looking for a quarrel with Time magazine which has chosen President Barack Obama as its Person of the Year. This is a free world. I like Obama. And I have high expectations for him. Perhaps it is true Obama is the 21st century version of “a new American” — one that is a citizen by choice and not birth.

He has all the tributes of a great man and a great president. He is articulate, brilliant and a visionary. He won the re-election in one of the most bruising campaigns in US history. I am trying to figure out his achievements so far other than getting the SEALs to kill Osama Bin Laden or sending the most number of drones to kill the most number of US enemies in Afghanistan and the tribal areas of Pakistan. I will be happier if he makes good his promises to the Muslim world and if he uses his office to solve the Palestinian problem.

Seriously, I have Datuk Paul W. Jones high on my list of Person of the Year. I think he is the most engaging, affable and committed US Ambassador we have ever encountered. He is very concerned about how his country is perceived by the local populace. And he has travelled extensively, meeting people, eating the food and enjoying the country. Perhaps he knows this country better than most other ambassadors. How many of them send out tweets in Bahasa Malaysia anyway?

I was contemplating to name the Prime Minister as my Person of the Year. Without having to sound mengampu, it is an obvious that he is working extremely hard for his people. Like most Malaysians, I subscribe to his “One Malaysia” concept. A bit too late for such a concept in a multiracial country like ours, but better late than never. But I believe he has many more years at the helm, so for now I will not choose him.

I have Datuk Nicol David, who recently won her seventh world title in squash. I hope she will win our first Olympic gold in Brazil. Datuk Lee Chong Wei is also my favourite. Seriously, I have Datuk Ibrahim Ali on the list, too, for his tireless pursuit to make the age-old mantra “tidak Melayu hilang di dunia” his crusade, for better or for worse. I will include Datuk Zuraidah Atan whose tireless effort to create awareness and understanding of the cancer scourge is legendary, among her many interests.

Seriously, I want to include those at the Election Commission as Persons of the Year. They simply have to live through hell these last many years, taking beatings yet their efforts are never appreciated. And the Malaysian Anti-Corruption Commission guys who are trying hard to do their work in an environment filled with prejudices and suspicion of their integrity and commitment. And Mercy Malaysia is also top on my list, the volunteer relief organisation that has brought goodwill to the people of the world.

Finally I am looking at those using the social media for the goodness of mankind and to spread the words of peace and harmony and to share knowledge and information indiscriminately and with conviction. They are changing the landscape of the social media realm for the better. They make the cyberworld a better place, not a lawless and indisciplined one where hate and anger prevails. They are the unsung heroes of the modern world. They are my Persons of the Year.

 *Have fun with this Johan Jaaffar’s article. I chose to put this article for no other reason than the fact he mentioned Oppa Psy or Park Jae-Sang, whose song is posted here for having received more than a billion hits on youtube. An article that can entertain the thought of considering Datuk Ibrahim Ali, the arch racist, the toothless Malaysian Anti-Corruption Commission and the biased Election Commission as Persons of the Year cannot be taken seriously. To me, it is one big joke. Maybe it is Johan’s cynicism and strange journalistic style. –Din Merican