On Public Office: The Malaysian Judge misjudges


April 30, 2017

On Public Office: The Malaysian Judge misjudges

Image result for Din Merican

Comment: Najib is first of all an ordinary citizen like you and I. Like us, he is subject to the laws and regulations of Malaysia. Citizen Najib can, therefore, be sued and charged in our courts, and if found guilty he can be sentenced and sent to Hotel Sungai Buloh or Hotel Kajang as a guest of our King.  He has the right to appeal to the higher courts against a conviction.  Next, he is professional politician, an elected Member of Parliament for Pekan, Pahang, currently Prime Minister of Malaysia and incumbent UMNO President.

In my personal opinion as a citizen, Najib is to intents and purposes a public official. It does not take a 31-page opinion to prove that Najib Razak is not. As a public official, Najib has a fiduciary duty to act in accordance with the Constitution which defines his duties as Prime Minister. As an ordinary person, he is not above the law. Is the law an ass? I am unable to understand why High Court Judge Abu Bakar Jais thinks otherwise.  Where did he go to do law, I wonder. –Din Merican

Definition of Public Office Is Who Appoints And Who Pays!

Image result for High Court Judge Abu Bakar Jais

High Court judge Abu Bakar Jais (pic above) in his controversial ruling yesterday that Prime Minister Najib Abdul Razak is not a public official or public officer has detailed his grounds for the judgment in his 31-page decision.

Justice Abu Bakar said Najib’s lawyers argued that in initiating the suit, former UMNO leaders Dr Mahathir Mohamad, Khairuddin Abu Hassan and Anina Saadudin must first prove the offices that Najib occupies – as Prime Minister, Finance Minister, BN chairperson and UMNO President – are all public offices.

“The defendant maintained he is not a public officer and therefore cannot be liable for the tort of misfeasance in public office,” the judge said in throwing out the suit. Najib, he noted, also contended there is no fiduciary duty owed by him as PM, Finance Minister, BN chairperson and UMNO President to the plaintiffs.

“There is no mutual trust and confidence placed between the parties for a fiduciary relationship to exist,” Justice Abu Bakar said.

Our comment

by The Sarawak Report

The public appointed Najib and the public pays Najib.In return, Najib on assuming office swore to serve the public faithfully and honestly. He was given a position of immense trust in charge of the nations finances, which the judge acknowledges he may have abused.

Yet this judge has opined that Najib is nevertheless not accountable to the public and that there is no duty of trust nor any obligation not to betray his terms of office, as would pertain to a teacher, parking officer or judge.

This law officer has decided that Najib is above the law and that democracy is about electing which dictator you want to have steal from you next – your money and your liberties included.

Gauging The Hudud Thing in Malaysia


March 14, 2017

Gauging The Hudud Thing in Malaysia–Political Islamism out of UMNO’s desperation

by Rashaad Ali

http://www.eastasiaforum.org/2017/03/08/gauging-support-for-islamic-law-in-malaysia/

Image result for The Hudud Thing in UMNO's Malaysia

The Desperate Godfathers of Hududism in Malaysia–UMNO’s Najib Razak and PAS’Hadi Awang

The 18 February 2017 rallies both for and against the bill to amend the 1965 Criminal Jurisdiction Act, known as RUU 355, have opened yet another political and social schism in Malaysian society. RUU 355 began as a private member’s bill by the Pan-Malaysian Islamic Party’s (PAS) President Hadi Awang and seeks to raise the penalties for certain crimes that fall under the jurisdiction of sharia courts in Malaysia.

Public opinion appears divided on the issue, as the continued politicisation of religion takes precedence over authentic religious debate on the matter. Some see the bill as a facade for the eventual entry of hudud — Islamic — laws into the country. PAS held the rally in support of the bill, which drew a reported 20,000 people, while the counter rally was organised by the non-governmental organisation Bebas and drew a much more modest crowd of around 200.

Image result for ruu 355

Hudud –The  Political Hypocrisy of  It All

Support for the bill is significant enough. Various surveys, including one conducted recently amongst university students, indicate Malay-Muslim support for the amendment and for the implementation of Islamic laws. The pro-RUU 355 rally emphasises this and the numbers indicate some level of moderate success for PAS — mobilising 20,000 odd people for a rally is no small feat.

But as the subject of this bill is central to the party’s aims, larger numbers could have been expected. This suggests a difficulty in appealing to urban folk and that mobilised supporters from other, more remote parts of the country account for the majority of the turnout.

Image result for zaid ibrahim dapThis Guy does not  know where he is coming or going in Malaysian Politics–UMNO to PKR to DAP and what next?

The counter rally, held at the same time but at a different location to the PAS gathering, better demonstrates the mood regarding the bill. While the opposition Democratic Action Party (DAP) was critical of the bill when it was first announced, it eventually distanced itself from the counter rally completely. The only DAP name who attended was Zaid Ibrahim, and that was in his individual capacity rather than as a party member.

The DAP’s absence is unsurprising as the issue puts it in a difficult position: the DAP may not support the bill, but attending the counter rally would cement the perception that they are an anti-Malay and anti-Muslim party. The discourse surrounding this issue has been very black and white; support for the bill is seen as a Muslim’s religious duty, while opposition to it is deemed vehemently anti-Islamic.

The general public’s low attendance at the counter rally suggests that the issue was not significant enough to take to the streets in numbers. For Malay-Muslims, the fear of reprisal for attending a rally seen as anti-Islamic is a significant factor in keeping people away. It appears easier for the pro-RU 355 rally to draw Malays, as the narrative is more populist, keeps with a conservative Islamic position and is supported by major Malay parties like the United Malays National Organisation (UMNO) and PAS.

As for non-Muslim participation, it appears this issue is neither relevant nor attractive enough to drag would-be participants out of bed in the morning. They can hardly be blamed as many voices from the pro-RU 355 camp constantly state that the amendment will not affect non-Muslims.

Although this amendment does not mean that non-Muslims are suddenly going to be tried under sharia law, having two legal systems for two different groups of people brings the notion of equality before the law into question. For a multicultural country that should seek to be inclusive instead of exclusive, these amendments are not helpful, especially when considering the knock-on effect it will have on the country as a whole.

Past cases of overlapping jurisdiction between sharia and civil courts, such as conversion cases or burial rights of non-Muslims indicate that the separation of the courts is not clearly defined. While the bill aims to raise the penalties for certain crimes under sharia law such as murder and theft, some constitutional experts argue that these crimes fall strictly under the purview of federal, not sharia, law. This bill exacerbates an already highly polarised society divided along racial and religious lines.

It is also another episode in the overall Islamisation trend happening in Malaysia that directly and indirectly affects all groups in society. Various incidents in the past few years point to how religious relations in the country can easily sour. A church was forced to take down its cross display in 2015, there have been recent issues with the usage and distribution of paint brushes containing pig bristles and there is now moral policing of dress code at government buildings.

The issue is complicated further because it is primarily for political rather than religious purposes. Putting aside PAS’ ambition to see this through, the bill is an obvious affirmation of the party’s own religious credentials. In the current climate, this helps to regain the trust of its core supporters, which also explains why the UMNO has jumped on the bill’s bandwagon. It helps the UMNO bolster its image at a time when the administration has suffered a dip in popularity. The timing of this issue is also convenient, as elections are due to be held by 2018.

As it stands, it would not be surprising if the bill passes next month when it comes to parliament. Opposition members who oppose the bill are likely to be absent from the vote for fear of being branded anti-Islamic. If the amendment passes, the biggest concern is whether it will worsen existing racial and religious polarisation in the country. Given the political dimension of the bill and the looming general election, a more inclusive Malaysia is not yet on the horizon.

Rashaad Ali is a research analyst with the Malaysia Programme at the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University, Singapore.

This article was first published here on RSIS.

 

 

Malaysia: We’re not pro- or anti-government, says Chief Justice


March 14, 2017

Malaysia: We’re not pro- or anti-government, says Chief Justice

 Ok as long as the Judiciary is really independent, not Pro-Najib Razak like our Attorney-General
Chief Justice Arifin Zakaria does not think that today’s judicial colloquium on the sharing of good practices on international human rights law, organised by the Asean Intergovernmental Commission on Human Rights (AICHR), is part of an effort against the government.

 

Justice Arifin said the event – which began today and ends on Wednesday – is to provide a platform for dialogues among the judiciary, AICHR and the civil society.

Stressing that it is for the good of the people of Asean, he said the commission would like to develop jurisprudence, so that a common jurisprudence on what is meant by rights can be determined.

“This is indeed the first time we are having this kind of dialogue.It doesn’t mean we are against the government or are pro-government. The Judiciary, as I always mention, will always remain independent, not only of government, but also of other bodies, civil societies too.We have to be independent. Integrity has to be maintained at all time,” Justice Arifin said at a press conference during the event today.

However, he explained, this did not mean that the Judiciary was in favour of human rights to the extent that everything in relation to human rights would be upheld.

“We have to go and consider the law and the principle of human rights. Most importantly, it’s our own law. Whatever is ratified by the government, if it is not implemented in Malaysia, through our own Act in Parliament, (then) of course we can use this convention and declarations on human rights as an aid to the interpretation of our laws,” he said.

Meanwhile, Malaysia’s representative to AICHR, human rights lawyer Edmund Bon said the event was an effort to link human rights protection with the Judiciary, pointing out how Asean’s work had always been with the executive sector.

“A lot of the senior Asean officials have meetings with the governments. They come from the governments, but we have not had sufficient links with the judiciary. Malaysia, together with Laos and Thailand, have conceptualised this colloquium, so that all Asean judges can come together and try to explore certain commonalities in the region,” Bon said, citing that all the countries have signed the relevant human rights declarations and conventions.

The three-day programme will involve panel discussions as well as working group sessions on the role of the judiciary in the promotion and protection of human rights, among others.

The Foreign Ministry, which is part of the organising team for the programme, said in a statement today the colloquium involves more than 100 participants, including 20 senior judges from the highest judicial branches of Asean member states, representatives of the council of Asean chief justices, international judges and AICHR representatives.

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.

Image result for Aristotle Quotes on Ethics

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.

Image result for Senator Al Franken

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.


 

How uneven are our scales of justice?


January 9, 2017

How uneven are our scales of justice?

by Dr,Lim Teck Ghee@www.malaysiakini.com

Image result for Ambassador Tommy Koh of Singapore

Professor and Ambassadoor Koh is the first Singaporean to receive the “Great Negotiator Award”, given out by the programme on negotiation at Harvard Law School, which comprises of students and faculty from the university as well as the Massachusetts Institute of Technology and Tufts University.

COMMENT In an exchange with Tommy Koh at a seminar on ‘Japan as an economic power and its implications for South-East Asia’ in 1974, the Singaporean diplomat reminded me that members of the legal profession did not comprise members of the world’s oldest profession, perhaps only second. That’s probably untrue as they could be third or fourth on this list.

Whatever anyone’s opinion of lawyers derived from personal experience is – we should not forget that lawyers generally sell their services to the higher bidder – there needs to be concern about how unevenly tilted the scales of justice in Malaysia have become.

Image result for Dr Lim Teck Ghee

Surprisingly or not surprisingly, there has been little discussion of this important topic though we have had a courageous whistleblower, Justice NH Chan, who called attention to the shortcomings of some of his former judicial colleagues in his book, ‘Judging the Judges’, subsequently printed in its second edition as ‘How to Judge the Judges’.

Image result for Justice NH Chan

Although Justice Chan, who sadly passed away recently, directed his criticism principally against his senior colleagues, his reiteration of the fundamental underpinnings of justice administration resonate in its relevance to the entire judiciary and other members of the legal profession.

Image result for Malaysia's Judiciary

Members of the Judiciary–The judge must be fair and impartial. At the same time, it is important that even litigants who lose should feel that they had a fair trial.–Lim Teck Ghee

To him, the epitome of justice is a fair trial and this requires that the judge must do justice according to law – “this is what the rule of law is all about”. The judge must be fair and impartial. At the same time, it is important that even litigants who lose should feel that they had a fair trial.

Justice Chan also felt that the public should have sufficient knowledge to enable them to judge the performance of the judges.

However, even when there is public scrutiny – which rarely happens except in the most attention-grabbing of cases, say one in every tens of thousands – it appears to be well-nigh impossible to bring anyone from the judiciary – from the lowest subordinate magistrate level to the highest level of federal supreme judge – to book for any abuse of power, corrupt practice or judgment or judicial behavior seen to be unfair or unjust.

The Royal Commission’s no-action decision on the notorious VK Lingam case serves as a good example.Being fair and impartial means that each and all members of the judiciary especially have to rise above the factors of class, race or religion in arriving at judgment. Do integrity and impartiality constitute the norm or is the judiciary – as with the rest of the civil service – influenced by extraneous factors in the cases they hear?

To what extent, for example, are members of the judiciary influenced or affected by the racial identity of the accused and/or of the lawyers in the cases they hear? Are they likely to be more lenient when sentencing members from the rich and powerful strata of society or from members of their own racial grouping?

Are they biased against those from the poorer classes who do not have the services of sharp and expensive lawyers to ensure that they get a fair trial or against those from different racial or religious groups?

Seldom raised in public realm

To my knowledge, these and similar questions have seldom been raised or discussed in the public realm. Colleagues from the legal fraternity to whom I have addressed this question in private, although generally agreeing that the judiciary is far from being independent or free from political influence, argue that the scales of justice are generally evenly and fairly administered in Malaysia in terms of the influence and impact of race and religion.

The most recent findings in the 2016 Rule of Law Index conducted by the World Justice Project appear to contradict this view. This is Malaysia’s score on the following components of civil and criminal law

Civil Justice

No discrimination – 0.5
No corruption – 0.5
No improper government influence – 0.38
Accessibility and affordability – 0.5

Criminal Justice

No discrimination – 0.51
Due process of law – 0.57
No improper government influence – 0.39
Timely and effective adjudication – 0.53

Source here, p110.

What the data by this organisation seems to indicate – the index is based on over 100,000 households and 2,400 expert surveys to measure how the rule of law is experienced, but we do not know the details of this sampling for Malaysia – is that one out of every two cases of civil and criminal justice in the country is tainted by discriminatory or corrupt action by the law enforcement agencies, including the judiciary.

Public attention – local and international – has tended to focus on issues related to fundamental rights and freedoms, constraints on government powers, and open government.

However in a robust and thriving democracy, it is equally important to ensure that the rule of law – as experienced in practical, everyday situations by ordinary people – is also subject to scrutiny and reform so that it is fair and impartial in all aspects.

A good example of such public examination is that recently conducted by British Columbia in its 2012 Justice Reform Initiative which resulted in a white paper and road map for justice reform in the state. We are sorely in need of such an initiative or minimally a clear and useful dialogue on this often neglected aspect of the Rule of Law. Perhaps the Bar Council can take the lead in this exercise.


LIM TECK GHEE is a former World Bank senior social scientist, whose report on bumiputera equity when he was director of Asli’s Centre for Public Policy Studies sparked controversy in 2006. He is now CEO of the Centre for Policy Initiatives.

 

Anwar Ibrahim’s Quest for Freedom denied by Federal Court


December 14, 2016

Anwar Ibrahim’s Quest for Freedom denied by Federal Court

by Hafidz Yatim

http://www.malaysiakini.com

This outcome is not unexpected because our Judiciary is not independent.  Out of the window goes our system of checks and balances when the Executive Branch overpowers our Judiciary and Parliament (the Legislative branch), and the Rule of Law is absent.

As my friend  Stanford University’s Dr. David Cohen said at a seminar at The University of Cambodia Human Rights Forum a few days ago that without the Rule of Law a citizen is denied Justice. “The Rule of Law is the foundation of Human Rights and good governance is an essential element of the Rule of Law.”–Din Merican

The Federal  Court today dismissed PKR de facto leader Anwar Ibrahim’s review of the Sodomy II conviction and sentence. With this, Anwar, formerly Malaysia’s opposition leader, is expected to remain in jail until mid-2018.

Image result for Justice Zulkefli Ahmad Makinudin

Chief Judge of Malaya Justice Zulkefli Ahmad Makinudin

The Five-member bench led by Chief Judge of Malaya Justice Zulkefli Ahmad Makinudin ruled there was no bias or procedural unfairnes in the decision of the previous Federal Court panel.

On the issue of the premature and swift response from the Prime Minister’s Office to the Sodomy II verdict on February 10 last year, Justice Zulkefli said while the statement, as argued by the appellant, had given the public the impression that Anwar did not receive a fair and independent hearing, the court took the view it was not within the control of the court to stop the issuance of the statement.

“As a separate branch of the government, the Judiciary and the courts operate independently in their decision-making process, with no interference from other branches of government.There has to exist a clear separation of powers between the judiciary and the other two arms of the government in order to uphold the rule of law,” he said.

Ruling further that there was no merit in the allegation that the statement was issued prematurely, he added this did not fall under the ambit of Rule 137 (that allowed a review).

“There is no evidence to show that there was any communication whatsoever between the PMO and the Federal Court, either prior or subsequent to the decision on the case,” Justice Zulkefli said in the unanimous decision.

The other judges were Chief Judge of Sabah and Sarawak Justice Richard Malanjum, along with Federal court judges Hasan Lah, Abu Samah Nordin and Zaharah Ibrahim.

However Justice Malanjum was not on the bench today as he had to attend the funeral of a relative who had passed away.

Shafee’s conduct no bearing on outcome

The Federal Court also dismissed the questioning of the conduct of senior lawyer Muhammad Shafee Abdullah, who led the prosecution team in the Sodomy II appeals in the Court of Appeal and Federal Court, by Anwar’s lawyers.

Image result for Shafee Abdullah

Justice Zulkefli said while the appellant contended that Shafee’s speech at a roadshow had tainted the prosecutor’s office in conducting the trial fairly, the court was of the view that the alleged misconduct, if any, had no bearing on the outcome of the decision of the Federal Court.

“We noted there is no evidence furnished or averment of any sort made by the applicant to suggest that this alleged misconduct of the lead prosecutor had influenced the decision of the Federal Court on Feb 10, 2015,” he said. The judge further cited Shafee’s appointment as prosecutor by the Attorney-General’s Chambers.

On the earlier Federal Court’s judgment by Chief Justice Arifin Zakaria, which made mention of previous sodomy incidents that had been ruled as expunged by the High Court, Justice Zulkefli said this issue of misevaluation of evidence, improper direction and non-direction of the trial judge were not within the permitted circumstances that the court could exercise its inherent jurisdiction to review.

“We would like to state on this issue now raised before us that we found that it was not raised before the Federal Court. It is for this reason that we think the Federal Court did not address this point at all and hence no reason was given on the issue of the admission or rejection of the alleged inadmissible evidence,” he said.

On the issue of complainant Mohd Saiful Bukhari Azlan not bringing the lubricant KY Jelly, the Federal Court said according to the record of proceedings in the High Court, it was dealt with extensively by both the defence and the prosecution.

Justice Zulkefli said the earlier judgment by the Federal Court court held there was no conclusive proof that KY Jelly had spilled on the carpet and it was of the view that the carpet was not a critical piece of evidence to the prosecution’s case. “It is therefore our judgment that this issue of KY Jelly raised by the applicant is a non-issue and it had not caused injustice to the applicant,” he said.

While Anwar’s defence team maintained the integrity of the crime scene was compromised as Saiful had claimed the incident took place on the carpet in Unit 11-5-1, whereas the carpet was found in Unit 11-5-2, the court held that it could not accept the argument as the earlier panel ruled the issue of how the carpet was moved was not critical to the prosecution’s case.

“We do not think that we should look into what that other compelling evidence was as found by the Federal Court,” Justice Zulkefli said.

The court also ruled there was no merit to Anwar’s defence contention that there was a break in the chain of evidence, saying there was no serious injustice in the chain of custody of the exhibits.

“For the above reasons, we find there is no merit in the application and this is not a fit and proper case for the court to exercise its inherent jurisdiction to make any order for the case to be reviewed,” Justice Zulkefli said.