The Public Prosecutor, Politics and the Rule of Law


September 30, 2017

The Public Prosecutor, Politics and the Rule of Law

by Walter Woon For The Straits Times

http://www.straitstimes.com/opinion/the-public-prosecutor-politics-and-the-rule-of-law

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Former Attorney-General of Singapore Walter Woon and the brilliant Ambassador at Large Tommy Koh

The Attorney-General occupies the hottest legal seat in Singapore. This is because the Attorney-General is the public prosecutor. Under Article 35(8) of the Constitution, the Attorney-General “shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence”.

In recent times, we have seen the President of a country, which is not shy about wagging its finger at others while lecturing about the rule of law, threatening to remove prosecutors and special counsel when investigations cut too close to the bone for comfort.

Closer to home, there has also been loose chatter online and off that question the Attorney-General’s decisions to prosecute. This is based on a misunderstanding of the Attorney-General’s function as public prosecutor. Ignorant criticism is unfair to the Attorney-General and his officers. Misinformation, deliberate or otherwise, erodes confidence in the system of justice.

It is necessary first to understand the nature of prosecutorial discretion. As a preliminary matter, a distinction must be made between a prosecution and a civil suit. When a person defames someone else, for instance, the “injured” party (the plaintiff) may seek compensation by means of a civil suit.

The public prosecutor is not involved in this. The commencement of civil litigation is a matter solely for the plaintiff. No one can stop him from suing. If he wins, he gets compensation (which does not have to be a substantial sum). If he loses, he pays the defendant’s costs.

Criminal defamation is an offence under the Penal Code. It is up to the Attorney-General to decide whether or not to lay charges. This is termed a prosecution, in contrast to civil proceedings. The object is not to obtain compensation for an injured party but rather to protect society’s interests by imposing some sort of punishment, often as a deterrent to others.

As provided in the Constitution, the Attorney-General has discretion over this. The accused person (defendant) and the injured party (complainant) are not involved in the decision. The defendant might tender an apology and offer to pay damages to the complainant, but the public prosecutor may decide to press on regardless if he thinks that there is a public-interest issue involved. The complainant cannot “drop the charges”, contrary to popular misconception.

Not every offence is prosecuted in court. If it were mandatory to prosecute every time an offence is committed, the courts would be jam-packed with jaywalkers and litterbugs. This is where prosecutorial discretion comes in. The public prosecutor can decide whether or not to prosecute. The question is, on what grounds?

It is obviously not possible for the Attorney-General to look at every individual file to decide whether to prosecute.

In practice, that is left to deputy public prosecutors (DPPs). There are currently two prosecution divisions in the Attorney-General’s Chambers: the Criminal Justice Division, and the Financial and Technology Crime Division. The legal officers posted to these two divisions are designated DPPs.

Generally, investigatory agencies (for example, the Central Narcotics Bureau, the Corrupt Practices Investigation Bureau, the police, to name a few) send investigation papers to one of the prosecution divisions. A junior DPP will then make recommendations as to whether charges should be laid, and, if so, what charges. The recommendations are considered by more senior DPPs -the heads of the various directorates, the chief prosecutor of the division, the Solicitor-General, the Deputy Attorney-General. The most serious cases end up on the desk of the Attorney-General, where the buck stops. In most cases, however, the buck stops far down the line from the Attorney-General.

Steps towards prosecution

In deciding whether or not to prosecute, there are, in general, four steps:

•Step 1: Find out what happened. This is the job of the investigatory agencies. It is the stuff of novels, TV and films. The DPP can ask for clarifications or further investigation.

•Step 2: Ascertain if an offence has been committed and, if so, what offence. This is a legal question – it is the reason DPPs have to go through four years or more of law school. Laypersons are seldom, if ever, qualified to appreciate the intricacies of Singapore criminal law.

•Step 3: Can the elements of the offence be proven in court? The prosecution must prove the case against the accused beyond reasonable doubt. It is not for the accused to prove his innocence.

At Step 3, the DPP has to decide whether there is enough evidence that will stand up in court. It is often possible to piece together what happened with a fair degree of certainty. However, there are cases where witnesses will refuse to testify in open court. In other cases, a witness may implicate others when questioned, but when it comes to actually testifying, he will have an attack of selective amnesia.

If the DPP thinks that the witnesses cannot be relied on, the prosecution will probably be dropped. If he decides to carry on, there is a chance that the judge may not be convinced beyond reasonable doubt. In that case, the defendant is acquitted.

Again, contrary to popular misconception, a verdict of “not guilty” is not synonymous with “innocent”. In some cases, it just means that there is a reasonable doubt. Thus, for instance, in a rape case the man may contend that the “victim” consented. The woman may be equally vehement in denying that she did consent. If the judge cannot be sure, then the accused is found “not guilty”, even though it may, in fact, have been rape.

Assuming that we have got past Steps 1, 2 and 3, the final step is: Should there be a prosecution at all?

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The writer notes that the Attorney-General of Singapore has two roles: first, that of the Government’s legal adviser and, second, public prosecutor. ST FILE PHOTO

Prosecute or not prosecute

The public prosecutor must decide whether it is in the public interest that the matter should be laid before a judge in open court. He has discretion over this.

This is where the biggest problems arise. For good or ill, the public prosecutor must make a judgment call. There are many reasons why a decision may be taken not to prosecute.

The offence may be a trivial one, not worth tying up prosecutorial and judicial resources over. A person who drops torn-off tabs from parking coupons on the ground may be guilty beyond reasonable doubt of an offence but, in most cases, this will not end up in court. Composition fines may be imposed instead.

Sometimes, the prosecutor may decide that the accused should be given a second chance. For example, if two teenagers are caught having consensual sex, this is an offence if the girl is under 16 years of age. But would it be in the public interest to prosecute a 17-year-old boy for having sex with his 15-year-old girlfriend?

The prosecutor may (note, “may”, not “will”) decide that, under the circumstances, a conditional warning is better. If the boy does not heed the warning and repeats the offence, he will be prosecuted for the previous offence as well as the new one. But if he mends his ways, then there is no prosecution.

When Politics may cloud the picture

Politically charged cases are often a source of controversy.

Suppose that an opposition politician is charged with deliberate incitement of racial unrest. It is a given that his supporters will scream that the prosecution is politically motivated.

When one analyses the issue dispassionately, if the accused is indeed guilty of deliberately inflaming racial feelings, it does not matter whether the decision to prosecute is politically motivated. But the fact that it is perceived to be so undermines the credibility of the public prosecutor, especially if ruling party politicians are not similarly treated.

The public is not stupid. People have a sense of justice. That sense is outraged if double standards are practised – a lenient one for the rich and politically influential, a stricter one for ordinary persons and the strictest one for oppositionists. The public prosecutor has to maintain a scrupulous neutrality so as to avoid being accused of partiality.

Take a purely hypothetical example: Say that a powerful minister is accused of embezzling a substantial sum of money from a government-linked company. How does he avoid retribution? Bribing judges is risky – this can backfire spectacularly. Interfering with investigations is more promising, but in the age of social media, this may not stop the process. The best bet is to nobble the prosecutor.

There are many ways to pressure the public prosecutor. In some places, the threats are physical. I attended a conference of prosecutors in Canada some years ago. Several of my colleagues said that they carried guns for protection. One colleague from a Caribbean country did not even live there – his life would have been worth nothing in his home country.

But physical threats are crude. There are better ways.

The favoured way, as seen in some countries elsewhere, is to appoint as Attorney-General someone who can be counted on to bend when pressure is applied. If the Attorney-General decides that charges will not be laid, no one can challenge that decision. Not even the Chief Justice can compel him to prosecute, legally and practically.

So the question is: What can be done to strengthen the system? We accept it as a given that judges should be politically neutral and not take instructions from politicians.

I would argue that the same must hold true for the public prosecutor. Indeed, one should remember that if the public prosecutor declines to prosecute, the case will never reach a judge, even if there has been a blatant breach of the law.

Two Roles of the A-G

Many people mistakenly think that the Attorney-General is part of the political executive. This may have been so in colonial days, but under our present Constitution, it is not so.

Unlike in many other countries, the Attorney-General of Singapore is not a party politician or a member of the Cabinet. This mistake arises because the Attorney-General has two roles: first, that of the Government’s legal adviser and, second, public prosecutor.

When giving advice on civil cases by or against the Government, on legislation, on matters of international law, the Attorney-General is the Government’s Attorney-General. He is obliged to defer to the Cabinet when it comes to issues pertaining to civil litigation, international law and the drafting of legislation. If he is instructed to fight a case, he must follow his client’s instructions just like any other lawyer, even if he thinks the case cannot be won or that it is ill-advised.

But when it comes to his role as public prosecutor, the Attorney-General is not the Government’s Attorney-General. He is given discretion over prosecutions by the Constitution. It cannot be the case that he should just prosecute if a senior minister wants that to be done.

The rule of law is not the natural state of human society. For most of history, in most societies, the system has been rule by the powerful. The rule of law cannot be imposed by force or governmental decree. Citizens must accept it and actively cooperate in upholding it. Prosecutions are a tangible manifestation of the rule of law.

When the prosecutorial machinery is abused for political ends, ordinary citizens’ faith in the rule of law is shaken. If people do not believe that the system is fair, they will subvert it. Building a society based on the rule of law takes a generation and more – tearing it down can be the work of a single electoral term.

A quick look at the state of the world will show that pressure on prosecutors is common, even in countries that consider themselves to be shining examples of the rule of law.


It is foolish to wait until a hurricane hits you to strengthen your roof. Fix it now, when the sun is shining and the dark clouds have not gathered.

If one accepts the premise that the public prosecutor should be independent, the first step is to separate the two functions of the Attorney-General. As the Government’s legal adviser, he must take instructions from the Cabinet, whatever his own judgment may be. Take this function away from the Attorney-General. Give it to the Solicitor-General, for example. The three non-prosecution divisions of the Attorney-General’s Chambers – civil, legislation and international affairs – can come under the Solicitor-General or whoever is designated as the Government’s legal adviser.

The prosecutorial function should be left with the Attorney-General, who would have the two prosecution divisions in his charge. It is necessary for the Attorney-General to be the public prosecutor. A certain stature is required to resist politicians, foreign diplomats, domestic pressure groups and non-governmental organisations, not to mention the assorted people who try to influence prosecutions. In the legal hierarchy, the Attorney-General ranks immediately after the Chief Justice.

The next question is: Who should appoint the Attorney-General? At present, the Constitution provides that the Attorney-General is appointed by the President on the advice of the Prime Minister. The President does not have to accept the Prime Minister’s advice, which is the major safeguard against blatant abuse by appointing a political hack to the post.

Since the President has an independent mandate from the people and constitutional discretion, he (or she) should be the one to make the decision, ideally in consultation with the Chief Justice and the incumbent Attorney-General. This will ensure that, optically, the Attorney-General is not seen to be a political creature of the ruling party.

This is a vital consideration. All too often, when someone who opposes government policy is prosecuted, accusations will be made of political motivations.

Even where it is clear that the accused has broken the law (for example, by making a nuisance of himself in public), there will always be those who will say that the Government is trying to silence the opposition.

People posing as human rights activists will attract the knee-jerk support of foreign human rightists. Prosecute a journalist or blogger for insulting religions and you can be sure that there will be howls at home and from abroad about political persecution and restriction of freedom of speech.

These criticisms will be flung even if the Attorney-General has acted in good faith and the politicians have scrupulously avoided trying to influence him. This is grossly unfair to the Attorney-General and his officers, not to mention the politicians themselves. If the public prosecutor is truly independent and seen to be so, it will go a long way towards refuting such criticisms.

Finally, the Attorney-General’s term of office should be long enough to be useful. The Constitution originally envisaged that the Attorney-General would serve until the age of 60.

This provision was amended to allow the appointment of an Attorney-General for a fixed term. The norm in recent years has been two to three years.

Frequent changes of the Attorney-General are disruptive and not good for the morale of the DPPs. Different attorneys-general have different views about how prosecutorial discretion should be exercised. For the sake of stability, I would suggest a five-year term, renewable by the President at his or her discretion.

Some may ask, why change the system at all? If one believes that all is well and that the system will not buckle in future under the pressure of an unscrupulous powerful executive , then fine, don’t change anything.

But if the system can be abused, then the right thing to do is to address the weakness before it does become a problem. A quick look at the state of the world will show that pressure on prosecutors is common, even in countries that consider themselves to be shining examples of the rule of law.

It is foolish to wait until a hurricane hits you to strengthen your roof. Fix it now, when the sun is shining and the dark clouds have not gathered.


  • The writer, a Senior Counsel, is a former Nominated MP who was also attorney-general and public prosecutor of Singapore from 2008 to 2010.
A version of this article appeared in the print edition of The Straits Times on September 29, 2017, with the headline ‘The public prosecutor, politics and the rule of law’. Print Edition

 

Losing outstanding minds to Singapore and elsewhere because UMNO practices racial discrimination


May 28, 2017

Losing outstanding minds to Singapore and elsewhere because UMNO practices racial discrimination

by Mariam Mokhtar

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In 2010, another Ipoh born caused a sensation in the newspapers. He did his parents proud, his teachers were equally elated, his birthplace was euphoric to claim he was one of them, and his country would have been ecstatic. His name is Tan Zhongshan and he was born in Ipoh. He chose to read law at university because he said, “Being in the legal line gives you a chance to make changes that have a far-reaching effect.”

Won the “Slaughter and May” prize

In June 2010, Tan received a first–class honours in Bachelor of Arts (Law) at Queen’s College, Cambridge, one of the world’s topmost universities. Cambridge, England’s second oldest university, usually contends with Oxford for first place in the UK university league tables.

Tan excelled as the top student in his final-year law examinations, but he also won the “Slaughter and May” prize, awarded by the Law Faculty for the student with the best overall performance.

In addition, he managed to bag the Norton Rose Prize for Commercial Law, the Clifford Chance Prize for European Union Law and the Herbert Smith Prize for Conflict of Laws.

Tan distinguished himself and was a source of help to his fellow students, according to his tutor and the dean of Queen’s college, Dr. Martin Dixon.

Dr. Dixon said, ““He is probably the best Malaysian student I have seen in the last 10 years. He is the most able, dedicated and one of the most likeable students I have taught in more than 20 years at Cambridge. He works really hard, has great insight and intuition. He is a problem-solver, listens well and learns.”

However, the 23-year-old Tan shrugged off his accomplishments which he said was due to “consistent work and a detailed understanding of the subjects.”

Tan, who plays classical guitar, was modest about his success, “It was a pleasant surprise as it is hard to predict the end results.” Sadly, this brilliant, young Malaysian will not be working in Malaysia.

Tan, who went to Singapore in August 2010, completed his Bar examinations at the end of 2011 and then joined the Singapore Legal Service.

 Malaysia’s loss is Singapore’s gain

 

After completing his A-levels at the Temasek Junior College, the Singapore Ministry of Education awarded Tan an Asean scholarship. Tan will not be the first nor last Malaysian who we let slip through our fingers.

It makes many ordinary Malaysians quietly fill with rage that the policies of our government reward the mediocre or the ‘can-do’ or so so” types and ignore the best and the brightest. When will this madness end?

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Our judiciary was one of the best in the region, but today…Sadly, we have clowns and fools to dictate how our courts are run. The best comedy act was played out in the Teoh Beng Hock trial when renowned Thai pathologist Pornthip Rojanasunand was cross-examined by presumably the best of the Attorney General’s bunch of merry-men.

If that is how Malaysian lawmakers prefer to project their image to the world, then they really need their heads examined.

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Follow Malaysia by setting up a Talent Corp

We are haemorrhaging our best talent to countries that receive them with open arms. Record numbers of Malaysians are leaving – doctors, surgeons, nurses, lawyers, accountants, lecturers and academics, engineers, quantity surveyors. We are experiencing the biggest exodus in our 59-year history.

It is estimated that there are over 1 million Malaysians living and working abroad, many of whom are highly qualified personnel. If the government thinks that it is only the non-Malays who are leaving then they are wrong. Malays are also leaving in large numbers.

Feeling appreciated

What other countries do is to offer Malaysians opportunities – something which is not available, to the majority of Malaysians, of whichever racial origin. Our government fails to realise that people need to feel appreciated and thrive in conditions which stimulate personal development.

Government interference in the things that affect the personal lives of its citizens is what has kept many overseas Malaysians away. At the end of the day, most people value the things that have to do with their quality of life (not just for themselves but especially for their families), the laws, bureaucracy and tax.

Malaysia will soon pay the price for its crippling policies which our government feels unable, incapable or fearful of changing.

MACC is serious about combating Corruption in BolehLand?


May 9, 2017

COMMENT: I always enjoy reading TK Chua’s plain speaking articles and have often featured them on my globally read blog. I thank http://www.freemalaysiatoday.com for hosting them and my friend Nelson Fernandez for allowing me to use them. Mr. Chua never fails to call a spade nothing but spade. But this is something elsehttp://www.freemalaysiatoday.com/category/opinion/2017/05/06/hail-to-the-macc-chief-for-being-bold/.

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The last of the Anti-Corruption Mohicans was the late Justice Tan Sri Dato’ Harun Hashim. He was competent, fearless and very professional. He had no regard for politicians because he was a public servant par excellence and an outstanding member of our Judiciary who served King and country with dignity and distinction.

Today, most of our civil servants starting from the top are apple polishers who are out to suck up to politicians in power. The manner in which the 1MDB scandal was handled is my case in point.  The Auditor- General, the Attorney-General and others  let us down. They did not have the conviction and courage to do what is right.

Yes, Mr. Chua, I note you used the word “resolve” in quotes. The present MACC Chief Commissioner is the new broom. I am not optimistic about what the Chief Commissioner can do to refashion the organisation, even with the benefit of the advice and wisdom of  former  UN Kofi Annan’s ethics crusader Tunku Abdul Aziz.

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Remember his predecessor, Tan Sri Abu Kassim.  Abu Kassim promised a lot but failed to do his duty faithfully.  Why? Because  there is no political will to fight corruption. After all, our Prime Minister himself is corrupt and worse still, he is incompetent.–Din Merican

MACC is serious about combating Corruption in BolehLand?

by TK Chua@www.freemalaysiatoday.com

I want to support the Chief of the Malaysian Anti-Corruption Commission (MACC) in his “resolve” to make the anti-graft agency more respectable in combating corruption in the country.

However, I would like to comment on some of his statements. First, one swallow does not a summer make. The arrest of a Tan Sri here and a Datuk Seri there does not signify that the MACC has become bold to “venture” into the turf of the rich and powerful.

I have seen enough of many agencies having the tendency to indulge in the “flash in the pan” syndrome. They do things to impress, not with the enduring objective to solve a problem at hand.

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The New Broom at The Malaysian Anti-Corruption Agency (MACC)

Efforts against corruption must be relentless, imminent and without fear or favour. When too many perceive that the rich and powerful are being protected, usually it is because such a view has some semblance of truth to it.

To prove otherwise requires efforts more than arresting a Tan Sri or a Datuk Seri. A Tan Sri trying to broker a royal title is very different from other Tan Sris in charge of millions in government funds.

Persistence and being resolute are key to curbing corruption. The rich and the powerful have become bold and blatant in their deviant ways because they perceive the likelihood of being hauled up, too slim.

Most of us are creatures of greed. Given an opportunity, many would abuse the law and enrich themselves. But if the consequence of our corrupt practices is clear and imminent, I think many would think twice before committing it.

Another point the MACC chief mentioned was the lack of personnel and funding in combating corruption. According to him, the MACC has only 1,900 enforcement officers whereas there are 1.6 million civil servants to be monitored. Please forgive me for being harsh, I just find this excuse so typical of most government agencies.

No organisation, including the MACC, has unlimited resources to play with. Ultimately it is always the 80-20 rule and the need to prioritise.

Certainly not all the 1.6 million civil servants have the same opportunity to be involved in bribery. The MACC ought to know the departments and the agencies that are more prone to corruption.

This is where priority and concentration come in – MACC’s should focus on the 20% to give them the 80% result.

If the MACC chief knows that RM5 million is paid each month by syndicates to foil enforcement actions, it shows that corruption has become institutionalised and endemic. More than that, it shows that corruption is now a retainer.

If he knows the amount paid each month, he ought to know the personnel and the agencies involved.

By the way, it is quite illogical to assert that MACC’s action against corrupt politicians just prior to the next general election is considered as indulging in politicking. On the contrary, it is the lack of action that has given rise to the impression that the MACC is not above the politicians.

Action should be rightly based on offences committed and evidence adduced, nothing else matters.

TK Chua is an FMT reader.

Ethics and Integrity First: Jeff Sessions must go


March 3, 2017

Ethics and Integrity First: Jeff Sessions must go

by Richard W. Painter

http://www.nytimes.com

In the wake of Wednesday’s revelation that Attorney-General Jeff Sessions spoke with Russia’s Ambassador to the United States while working with the Trump campaign, despite denying those contacts during his confirmation hearings, key Republican and Democratic lawmakers are calling for him to recuse himself from overseeing any Justice Department investigation into contacts between the campaign and the Russian government. Some are even saying he needs to resign.

It’s a bombshell of a story. And it’s one with a clear and disturbing precedent.

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Jeff Sessions–Get the Message and Resign–Integrity in High Office is Non-Negotiable. This is not Politics. Its Integrity and Responsibility, President Donald J. Trump, not Loyalty.

In 1972 Richard G. Kleindienst, the acting Attorney-General, appeared before the Senate Judiciary Committee in a confirmation hearing on his nomination by President Richard Nixon to be Attorney-General. He was to replace Attorney-General John N. Mitchell, who had resigned in disgrace and would later be sent to prison in the Watergate scandal.

Several Democratic Senators were concerned about rumors of White House interference in a Justice Department antitrust suit against International Telephone and Telegraph Corporation, a campaign contributor to the Republican National Committee. They asked Kleindienst several times if he had ever spoken with anyone at the White House about the I.T.T. case. He said he had not.

That wasn’t true. Later, after Kleindienst was confirmed as attorney general, the special prosecutor, Leon Jaworski, and his team uncovered an Oval Office tape recording of a phone call in which Nixon told Kleindiesnt to drop the I.T.T. case. Kleindienst claimed that he thought the senators’ questions were limited to a particular period, not the entire time during which the case was pending.

Jaworski didn’t buy it. He filed criminal charges against Kleindienst, who was forced to resign as attorney general. Eventually Kleindienst pleaded guilty to failure to provide accurate information to Congress, a misdemeanor, for conduct that many observers believed amounted to perjury. He was also reprimanded by the Arizona State Bar.

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Last month, during Mr. Sessions’s confirmation hearing for attorney general, Senator Al Franken, Democrat from Minnesota, asked Mr. Sessions what he would do if he learned of evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of the 2016 campaign.

“I’m not aware of any of those activities,” Mr. Sessions answered, adding, “I have been called a surrogate at a time or two in that campaign, and I did not have communications with the Russians.”

Mr. Sessions also, on his written Senate confirmation questionnaire, denied having had any communications about the 2016 election with the Russians.

We now know that Mr. Sessions had at least two conversations with the Russian Ambassador to the United States in July and September 2016 while Mr. Sessions was an adviser to the Trump campaign.

Once again, we see an Attorney-General trying to explain away misleading testimony in his own confirmation hearing. A spokeswoman for Mr. Sessions says that “there was absolutely nothing misleading” about his answer because he did not communicate with the ambassador in his capacity as a Trump campaign surrogate. His contacts with the Russian ambassador, he claims, were made in his capacity as a member of the Senate Armed Services Committee.

That may or may not have been the case (individual senators ordinarily do not discuss committee business with ambassadors of other countries, particularly our adversaries). Regardless, Mr. Sessions did not truthfully and completely testify. If he had intended to say that his contacts with the Russians had been in his capacity as a member of the Senate Armed Services Committee and not for the Trump campaign, he could have said that. He then would have been open to the very relevant line of questioning about what those contacts were, and why he was unilaterally talking with the ambassador of a country that was a longstanding adversary of the United States.

He did not reveal the communications at all, however. He did so knowing that Senator Franken was asking about communications with the Russians by anyone working for the Trump campaign, including people who, like Mr. Sessions, had other jobs while they volunteered for the Trump campaign. Mr. Sessions’ answer was at best a failure to provide accurate information to Congress, the same conduct that cost Attorney General Kleindienst his job.

And this time, unlike in 1972, the Attorney-General’s misleading testimony involves communications not with the president of the United States, but with a rival nuclear superpower. In 1972, any federal employee who provided such inaccurate information under oath about communications with the Russians would have been fired and had his or her security clearances revoked immediately, and probably also would have been criminally prosecuted.

The Cold War may be over, but Russia in the past few years has once again sought to destabilize the democratic process not only in the United States, but also in much of Europe. Russian support for Communist parties is gone, but Russian support for far right and nationalist movements globally is on the rise, as is Russian spying.

President Trump has already fired his National Security Adviser, Michael Flynn, for misleading Vice-President Pence about his conversations with the Russians. Misleading the United States Senate in testimony under oath is at least as serious. We do not yet know all the facts, but we know enough to see that Attorney General Sessions has to go as well.

Richard W. Painter, a professor at the University of Minnesota Law School, was the chief White House ethics lawyer from 2005 to 2007.


 

Caring about Malaysia


January 15, 2017

Caring about Malaysia

by Dean Johns@www.malaysiakini.com

Who cares about Malaysia? This is the question that fellow Australians most frequently ask me, and indeed that I frustratedly keep asking myself, about why I keep writing about Malaysian politics.

And it gets more difficult every week to come up with a convincing reply.

Back when I started in 2006, however, my motives seemed as simply and plausibly explicable to others as they were clear in my own mind.

My main motivation, as I recall explaining in the introduction I wrote for the my first book of collected columns, ‘Mad about Malaysia’, was to make some meaningful contribution to the country that my wife, daughter, extended family and a great many good friends and valued colleagues called home, and in which, though a foreigner, I was temporarily welcome to work.

Image result for Steven Gan and Premesh Chandran and Malaysiakini Staff

The courageous men and women of Malaysiakini led by  the now globally famous duo, Premesh Chandran and Steven Gan. I am proud to be associated with them as SEACEM Fellow a few years back. These committed Malaysians work hard and put in long hours to keep us all informed. Great 2017 and Keep Going.–Din Merican, Phnom Penh, Cambodia

Less altruistically, but just as sincerely, I also felt driven to be involved with, and if possible help support, Steven Gan, Prem Chandran and their staff in their courageous struggle to ensure the survival of their inspired creation, the country’s first source of true news and independent views in living memory, Malaysiakini.

These days, however, now that Malaysiakini is no longer merely surviving but mightily thriving, and my wife and daughter have long-since embraced life in and become citizens of Australia, it’s not so easy to explain to myself or anyone else why I persist in writing columns calumnising the criminal regime that’s still apparently endlessly running and in the process ruining Malaysia.

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Din Merican’s Favorite Mat Salleh Dean Johns–He and I  and other Fellow Journeymen care about Malaysia since being dumb and  remaining silent is for us not an option.

Mainly what keeps me persisting in this frustrating and thus-far utterly futile endeavour, of course, is my feeling of sympathy, solidarity and comradeship with all those intrepid and truly patriotic Malaysians who have chosen to struggle to save their beloved country, not by leaving it and criticising its criminal misleaders from a distance, but staying at home to fight.

But despite their fighting with all their might, and my own and others’ efforts to support them from beyond the battle-lines if not out of sight, the vast majority of Malaysians are still apparently failing or refusing to see the UMNO-BN blight in its true lying and larcenous light, and so Malaysia remains in a terrible plight.

As the head of the allegedly blatantly UMNO-BN biased Election Commission (EC) Mohd Hashim Abdullah lamented recently in a laughable attempt to portray himself and his officers as politically-impartial, 4.2 million Malaysians citizens who are qualified to vote have not taken the trouble to register, and millions of those who have registered can’t be bothered turning up on election days to cast their votes.

A distraction from ‘manipulation of constitituencies’

What Mohd Hashim failed to mention, however, was that a great many voters have become hopelessly cynical about and thus alienated from participating in the electoral process by the EC’s shameless alleged manipulation of constituencies, which are constitutionally required to be of similar voter-population size with a maximum permitted variation of 20 percent, but currently range from around 5,000, as in the blue-ribbon UMNO seat of Putrajaya, to 150,000 or more.

He was also using his regret at low levels of voter registration and turnout as a distraction from this and also the lamentable reality that in many electorates a great many of those who do both register and show up to vote only do so in the expectation of allegedly receiving gifts or outright cash payments for supporting UMNO-BN candidates.

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The fawning UMNO henchman–Using Power of his Office to defend Malaysia’s No. 1 Criminal, Prime Minister Najib Razak.

Another UMNO-BN bigwig working hard this week to convey an illusion of care for the country more than for himself and his own privileged position as a prominent member of the UMNO-BN regime was Attorney-General (AG) Mohamed Apandi Ali.

Despite the universally-known fact that he was promoted over the politically dead body of the former AG to pander to Prime Minister Najib Abdul Razak’s allegedly dire need to be declared innocent of any larcenous intent or even meaningful involvement in the massive 1Malaysia Development Berhad (1MDB) financial misappropriation and money-laundering scam, Apandi had the gall and audacity to hector his audience at a Conference of the Attorney-General’s Chambers’ Legal Officers in Malacca on the topic of corruption.

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Dean Johns and Din Merican are fighting to get rid of this toxic and bygon resistant termite –Najib Razak (and his consort Rosmah Mansor too).

“Corruption is like a termite infestation that will slowly weaken the country without the people realising it,” he thundered, as if his own legal officers, like the rest of us in Malaysia and around the world weren’t aware that the UMNO-BN regime he represents, or rather misrepresents, wasn’t a nest of the nation’s allegedly most notoriously voracious – and at the same time least veracious – political termites.

Just as former Chief Minister of Sarawak, Abdul Taib ‘The Termite’ Mahmud, built a multi-billion mound of money by allegedly chomping his way through his state’s rainforest-timber resources, Najib has devoted his time as Prime Minister to systematically white-anting the entire nation of Malaysia.

With the aid, support and protection of his hordes of alleged sycophants in Government, the Judiciary, the Police Force, the ‘mainstream’ news media, the aforementioned electoral commission and all the other public services, he has allegedly consumed countless billions of Malaysian people’s rightful share of public money and natural resources, and allegedly undermined as many as possible of the Malaysian citizens’ civil rights and legal protections.

Yet there he was this week trying to kid attendees at the Prime Minister’s Department monthly assembly that the recent and current string of graft charges against civil servants “is a reminder that those in government must not take away what rightfully belongs to the people.” The sheer hypocrisy of it all!

The rest of us know very well that this just another Najib-style lie to conceal the fact that those being targeted for corruption are either small termites, or slightly larger termites who have made the mistake of failing to pass the expected cut from their country-consuming scams up the line to the termites at the top.

So, who cares about Malaysia? Certainly not Najib, Apandi, Mohd Hashim Abdullah or any other members, cronies or supporters of the UMNO regime. Which leads me to the conclusion that it’s up to all the millions of Malaysians who claim that they care about Malaysia but do nothing to show it, to finally summon-up the interest, energy, integrity, courage or whatever else it takes to demonstrate that they truly do give a damn about making a difference.


DEAN JOHNS, after many years in Asia, currently lives with his Malaysian-born wife and daughter in Sydney, where he coaches and mentors writers and authors and practises as a writing therapist. Published books of his columns for Malaysiakini include ‘Mad about Malaysia’, ‘Even Madder about Malaysia’, ‘Missing Malaysia’, ‘1Malaysia.con’ and ‘Malaysia Mania’.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

Malaysia’s Political Gridlock and Why Najib is not going to Jail


January 12, 2017

Malaysia’s Political Gridlock and Why Najib is not going to Jail

by Ooi Kok Hin

Despite protests, political realities will keep the prime minister’s coalition in power through 2017 – and beyond.

http://thediplomat.com/2017/01/why-malaysias-najib-razak-isnt-going-anywhere/

Image result for Bersih 5.O November 19, 2016

On November 19, tens of thousands of Malaysians assembled in the capital to demand for a free and fair election and the resignation of Prime Minister Najib Razak, who is implicated in a massive financial scandal. Yet, Najib’s ruling coalition looks set to prevail in the next general election, rumored to be held this year.

Why is this so? I argue Malaysia’s political gridlock is prolonged largely by four factors: electoral malpractices, institutional failures, political fragmentation, and societal fault lines. Until and unless these are changed, reforms will be flimsy at best, and cosmetic at worst.

Electoral Malpractices: Keeping the Incumbent in Their Seats

In the previous general election, the ruling coalition won 47 percent of the popular vote but nearly 60 percent of the parliamentary seats. The opposition coalition won 51 percent of the votes but only 40 percent of the seats (the remaining 2 percent of the vote was split among marginal parties). The discrepancy is caused by the uneven weighting of popular representation. A constitutional clause grants over-representation for rural voters either spanning a large landmass or difficult to reach areas. However, even after taking this clause into account, electoral malpractices are severe.

In a study I co-wrote with fellow analysts from the Penang Institute, we found that at least 68 parliamentary seats and 162 state seats are either excessively under-represented or excessively over-represented under the latest redelineation proposed by the Election Commission. If the proposal comes into effect during the next general election, the outcome is effectively a forgone conclusion because of severe malapportionment and gerrymandering.

Malapportionment isthe disparity of constituency size caused by redelineation. It results in inequitable representation because it provides unequal vote value. For example, one voter in Putrajaya has a value equivalent to one voters in Kapar, as both constituencies have one seat each — even though Putrajaya has roughly 15,991 voters and Kapar has 144,159.

Even within the same state, the disparity of constituency size is striking. In the state of Selangor, Damansara is four times the size of Sabak Bernam. Any of the three excessively under-represented parliamentary constituencies in Selangor are bigger than the three small constituencies combined.

This is not a purely mathematical disparity of constituency size. It is a deliberate packing of opposition supporters into a mega-size constituency, diluting their ability to win other seats and making the neighboring marginal seats more winnable for the ruling coalition. Not surprisingly, Damansara is held by the opposition and Sabak Bernam is held by the ruling party.

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Gerrymandering, meanwhile, is the practice of deliberately drawing constituency boundaries based on the voting pattern of constituents so that a party may benefit. Malaysia’s redelineation does this in three ways: the creation of constituencies spanning multiple local authorities, the arbitrary combination of communities without common interests, and the partition of local communities and neighborhoods. Voters living on the same street find themselves in different electoral constituencies. The confusion is compounded by the lack of information and publicity about the changes made to constituency boundaries and, crucially, voting districts.

Political Fragmentation: Weaker and Disunited Opposition

Given the steep electoral obstacles which the opposition has to overcome, it is no surprise that the National Front (Barisan Nasional, BN) is one of the longest ruling coalitions in the world. The then fully united opposition coalition, Pakatan Rakyat, failed to unseat BN in the 2013 general election. The erstwhile alliance brought together three major opposition parties: the People’s Justice Party (PKR), Democratic Action Party (DAP), and Pan-Malaysian Islamic Party (PAS). Any hope of taking advantage of Najib’s crisis has been dampened by the collapse of Pakatan Rakyat due to a quarrel over a chief minister’s position and the Islamist party’s insistence on the implementation of Sharia laws.

Amidst the open animosity between the opposition parties, pragmatist PKR is negotiating a miracle. They are appealing for a one-on-one fight; a scenario which even the most hardcore opposition supporter would find unlikely.

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The Fractured Opposition

Hostility is mutual between PAS and DAP/Amanah. Bersatu, the new party setup by ousted Deputy Prime Minister Muhyddin Yassin and former Prime Minister Dr. Mahathir Mohamed, is beset with internal issues and looks the least of a threat to Najib’s UMNO. A united opposition is anywhere but visible in Sabah and Sarawak, the two states which won the election for Najib, whose coalition took 47 out of 56 seats.

If PAS explicitly teamed up with UMNO, there is some hope that their grassroots and longtime supporters (who view UMNO as a nemesis) may vote for the opposition coalition as a protest against their leadership. Tacit cooperation is more likely, however, and in three-cornered fights, the ruling party will sweep all the marginal seats.

Institutional Failures: Culture of Unaccountability, Graft, and State Repression

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Institutional failures have doomed any formal case again Najib for the financial scandal centered on 1MDB. Former Attorney General Gani Patail was terminated just as he was allegedly drafting a charge sheet against Najib. The chief of the Malaysian Anti-Corruption Commission was replaced, its senior officers transferred out, and one investigating officer’s home was raided by the police. Three out of four figureheads of the special taskforce setup to investigate 1MDB were replaced within months.

The various institutions that were supposed to hold the government accountable have all faltered in one way or another. A concentration of power has enable the state leviathan to dismiss any institution that could actually hold it accountable.

Ideally, legislative institutions should uphold the principles of democracy and justice enshrined in the Constitution. But under the forceful thumb of the executive, they continue to either pass or fail to repeal draconian laws stretching from the colonial era. The Sedition Act, which criminalizes any speech deemed hateful or contemptuous towards the ruler or government, is routinely abused due to its vague clauses. The notorious detention without trial, another colonial legacy, gave powers to the executive to imprison political opponents for lengthy periods without a day in the courtroom. Most recently, the leader of a civil rights movement calling for free and fair elections, Maria Chin Abdullah, was detained under one such law.

The list of institutional failures includes that of the media. Some outlets fought and went down, like The Malaysian Insider. The mainstream press is owned directly by political parties or businessmen friendly to the establishment. Periodic license renewals keep them on their toes. Newspapers editors who did report on 1MDB were called in for police investigation.

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Malaysia’s Infamous Auditor-General

Institutional failure and lack of accountability are not limited to 1MDB. Year after year, the Auditor General has revealed staggering cases of mismanaged public funds. Government bodies bought wall clocks at RM 3,810 a piece (the market price is easily below RM 100) and scanners for RM 14,670 (market price: RM 200). The “normalization of corruption” is deeply embedded in the existing hierarchy, from the top to the bottom. In the newly released report, the auditors found that the Federal Land Development Authority (FELDA) lost hundreds of millions due to multiple transactions without proper authorization, dubious planning and execution, and complete mismanagement. It made news for two to three days before disappearing, like pretty much every other scandal. Corrupt acts are committed and revealed, followed by public outrage. But with no institution to exercise accountability, the news eventually disappears. It has become a normal cycle.

Late last year, the National Security Council Act was passed to enable the prime minister to declare an area of emergency as he deems necessary, without the approval of any other institution. Which raises the question: Are there any institutional safeguards to guarantee a peaceful transition of power even if the government fails to recapture popular support in the election?

Societal Fault Lines: One Cleavage Too Many

The fault lines of Malaysian society are too many and too deep, with groups frequently divided along ethnic and religious lines. Due to this, Najib can easily turn a once-unified opposition against one another.

Dr Jamil Khir Baharom, a minister in charge of religious affairs under Najib’s cabinet, paraded a bill amendment to increase the power of the Shariah court. PAS’s dream is to establish an Islamic state by implementing Islamic law, which cannot be fully enforced given the current restrictions on the maximum punishments the Shariah court can spell out. Under the revised version of the proposed amendment, the Shariah court will be strengthened by raising the punishment ceiling to 30 years in prison, a RM 100,000 fine, and 100 strokes of caning.

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Playing with the Islamic Fire

Najib’s olive branch to PAS is working, enticing the party away from cooperation with the opposition and thus sapping the opposition’s strength among the all-important Malay and rural areas.

In Malaysia ,where nearly everything is seen through the lens of race and religion, the push for Islamic law will effectively split society. Since all Malays are Muslims in this country (one’s professed religion is one of the constitutional definitions of being an ethnic Malay), debates on the bill can dangerously be turned into a sectarian conflict.

In the run-up to the November 19 rally, thugs dressed in red threatened the Bersih convoy. The Red Shirts, as they came to be known, are all ethnic Malays led by an UMNO division chief. Threats of violence aside, the racial rhetoric has become too discomforting. Last year, what was a typical robber and shopkeeper brawl turned into dangerous racial gatherings as the two groups called their friends, resulting in a mini-riot that night. In the aftermath of the previous election, the prime minister and the party’s de facto mouthpiece, Utusan Malaysia, denounced the Chinese as a scapegoat of opposition agents. All these societal fault lines testify to the enormity of the task to to unseat Najib.

The by-elections last year might provide some hint as to how the general elections will turn out. Najib’s coalition won both of them. I was in the suburban areas when opposition parties held a town hall panel session, inevitably speaking in English, touching on issues such as the removal of the Attorney-General. While these are big, national issues, it felt out of place. There is a visible gap between the politicians, the city folks, the demonstrators who so urgently and desperately want reforms, and the voters outside the cities, who voted for candidates affiliated to Najib’s party.

To speak plainly, people don’t mind the status quo as long as they are not affected at the most immediate and personal level. The whole 1MDB scandal has been too complicated to be explained to non-English literate voters with no understanding of the complex technical terms, in a five-minute rally. Financial scandals grow more complicated and people just lose interest. Maybe they underestimate the cost of it all, maybe they don’t care enough or just don’t lose enough; either way they are not angry enough to want to change the status quo.

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The partnership that can rattle the beleaguered Al-Kebas aka Malaysian Official 1–Najib Razak

What’s next? Even the unholy alliance between Anwar and Mahathir won’t be able to fight off the structural inequality of power and institutional failures. If political change is not sufficient, will it take an economic downturn to bring change in Malaysia, like Indonesia? In 1998, a combined factor of internal dissidents and economic instability brought the dictatorial Suharto era to an end and ushered in the Reformasi period. If neighboring Indonesia can live embedded in a dictatorship for 40 years and then undergo rapid democratization in so short a time, we can’t and shouldn’t rule anything out yet in Malaysia. But it will take a miracle.

Ooi Kok Hin is an analyst with the Penang Institute. He writes on political and social developments and Southeast Asian affairs.

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