Kassim Ahmad humbles JAWI

December 21, 2015

Kassim Ahmad humbles JAWI with the help of Lawyer Rosli Dahlan

by Ho Kit Yen


kassim-ahmad fmt3

The Court of Appeal on Monday allowed Islamic scholar Kassim Ahmad to challenge his Syariah arrest and prosecution by the Federal Territories Islamic Religious Department (Jawi).

The three-member panel of judges, led by Justice Vernon Ong Lam Kiat, ruled that the arrest and prosecution of the 82-year old was illegal.“The arrest warrant on Kassim was clearly defective, it was substituted with words ‘pejabat penguatkuasa terdekat’ (nearest religious department) from the original ‘mahkamah syariah terdekat’ (nearest Syariah Court),” said Justice Vernon. “The warrant was bad in law.”

Justice Vernon, along with Justices Abdul Rahman Sebli and Hasnah Hashim, also ruled that the Jawi officers clearly failed to comply with Section 36 of the Kedah Syariah Enactment, taking him to the nearest ‘kadi’ or Syariah judge, as he was taken to Penang and on board a flight to Kuala Lumpur.

The Appeal Court also found that Kassim was deprived of his constitutional rights under Article 5(3) of the Federal Constitution to consult a lawyer upon his arrest. “He was arrested in the morning of March 26, 2014 and he was only charged in the afternoon of March 27.”

“It clearly exceeded 24 hours, and he was deprived of legal rights,” said Justice Vernon. Besides that, the appeal court ruled that the fatwa in the Federal Territories cannot be used against residents in other states. “It is not disputed Kassim lives in Kedah. Clearly he is not obliged to the fatwa in question,” Justice Vernon said.

The three judges allowed the orders to quash the arrest warrant and the religious prosecution. A cost of RM20,000 was awarded to Kassim, while the damages on the embarrassment and trauma he faced on the wrongful prosecution will be accessed before a deputy registrar.

Rosli_dahlanSpeaking to reporters outside, the academician said he was thankful and happy for the decision.  Alhamdulilah,” he said. “I came all the way from Kedah this morning to hear the decision.” Kassim’s lawyer Rosli Dahlan said he will be writing to JAWI to withdraw the charges in order to end this “conflict and controversy”.

According to the facts, Kassim was arrested on March 26, 2014 when JAWI officers raided his Kedah home in the morning. He was then taken to the Kulim Police station, before flying him from Penang to Kuala Lumpur. He was also interrogated and examined in the wee hours on March 27 by JAWI officers.

He was charged at the Putrajaya Syariah Court later in the morning for insulting Islam and defying JAWI’s order. He then filed for a judicial review to strike out the syarie chief prosecutor’s decision to prosecute him for allegedly insulting Islam and defying the religious authorities. Kassim, as applicant, named Minister in the Prime Minister’s Department Jamil Khir Baharom, Chief Syarie Prosecutor, JAWI and the government as respondents.

On January 6 this year, the 82 year-old academician failed in his judicial review to challenge JAWI’s prosecution against him. The High Court ruled that his case fell under the Syariah jurisdiction and that he should bring the case to the Syariah appeal court.

Get It: Azmi Sharom is an Academic, not a Criminal

November 17, 2015

Get It: Azmi Sharom is an Academic, not a Criminal

by Dr Mohd Nazari Ismail


Azmi Sharom 3

As an academician myself, I am greatly worried by the developments of the Azmi Sharom case.

In my area of International Business, many people have asked me whether the TPPA (Trans-Pacific Partnership Agreement) was actually good for the country or not. I will then express my opinion on the matter, hoping to enlighten the public on the issue, regardless of whether my opinion is in line with the stance of the government. What is important is that I will inform the public truthfully and I am very sure the public will not accept anything less than that from me.

In light of the above, I am therefore feeling very sad and apprehensive over the current legal case involving my colleague at University of Malaya, Associate Professor Dr. Azmi Sharom. He has been charged under the Sedition Act for simply expressing his honest opinion on what happened during the 2009 Perak Constitutional Crisis.

His analysis of what happened was that it was not legal according to the constitution. I am not a lawyer and as such not in a position to judge whether his analysis was accurate or not. However, as an academician and a member of the public, I expect nothing less than Azmi’s honest opinion on the matter. If I want to know more about the issue, I will read the opinions of others who I consider experts in the field on the matter. Later, I will make my own judgment based on those opinions.


Cry Freedom, make your Voices heard, or stay dumb Forever

However, if we academicians are being charged in court and threatened with a stiff jail sentence and a very hefty fine for carrying out our duties, then a very wrong message is being sent to all of us.

We are being told to only voice out opinions that will not land us in trouble. Some may even feel that the best option is to voice out opinions that are in line with the government’s stance on issues in order to stand a good chance of being promoted or to become deans or vice-chancellors of universities.

Students and the public will only be exposed to opinions that are favourable to the government rather than opinions that are closest to the truth of things. This not the way to develop the young minds of our society.


So Free Azmi Sharom

Our society can only prosper when we collectively are able to develop good policies, whether micro or macro, short-term or long-term. But in order to develop good policies, we need lots of critical minds. However, critical minds can never be developed if there is limited space for expressing opinions. Unnecessary curtailment of freedom of expression will stifle the minds of the members of our society.

Of course there are limits to everything. I am not personally advocating an unlimited freedom to express opinions. Such freedom will potentially create a scenario such as in France where even cartoons that insult the Prophet Muhammad are allowed.

In my opinion, those types of opinion are slanderous in nature, can cause genuine hurt and anger among many sections of the society, and thus deserve to be restricted. In my opinion, Azmi’s opinion is nowhere in that category.

As such he does not deserve to be subjected to the current pains and sufferings normally accorded to criminals who have committed harm to society. Azmi is not a criminal. He is an asset to our society and should be treated as such.

* Dr Mohd Nazari Ismail is with The University of Malaya.


Protect and Defend the Constitution and ourselves

November 13, 2015

Protect  and Defend the Constitution and ourselves from UMNO sponsored ultra groups

by Ron J.Backus

“In Malaysia, we have three major races which have practically nothing in common. Their physiognomy, language, culture and religion differ… nothing makes anyone forget the fact of race. So those who say ‘forget race’ are either naive or knaves.” (Tun Dr Mahathir Mohamad, 1970: 175)

Mahathir the Political Construct

While carrying out research in the Senate House Library in London, I stumbled upon a book in the Institute of Commonwealth Studies Books section.

This statement (quoted above) by Malaysia’s fourth Prime Minister in his infamous “Malay Dilemma” gave me the validation that his dictatorship of 22 years, proved that the level of “political ethnicisation” in this country is alarming.

Frederik Holst (2012), in his amazing book “Ethnicization and identity construction in Malaysia,” deconstructs Mahathir’s statement: “He mentions spatial separation, lack of interaction, an urban-rural divide, and social gaps.”.

For Mahathir, these configurations seem to be established. I tried to brush it off, but it is 2015, Malaysians have certainly grown out of those configurations, moreover, most if not all, have migrated in mind and spirit from this dichotomy.

Don’t get me wrong, but we were put on the world map during his reign as the Twin Towers shot up to overshoot the Dayabumi Building and Malaysia developed from being an exporter of rubber and tin, into a manufacturer of electronic equipment and cars.

His “look east” policy and “anti-Colonialist rhetoric” landed him in hot water among his Western counterparts, but it was different back home.

Often a ‘hero’ but among the non-UMNO, his authoritarian rule severed the racial tapestry of Malaysia, which was inherited and willfully crafted eons ago by the colonialists with their “divide and conquer” strategy to keep us apart.

Could I blame Mahathir entirely for this? I paused to think of our past leaders who have stood up for an inclusive Malaysia, but I failed to recognise but one.

As I traced the lineage of racial discordance in Malaysian politics and society, I realised that what Mahathir said could probably be true. Can we really “forget race”? I would like to think that this is a new challenge for Malaysians.

We are stepping into our sixth decade as a nation but cracks are still visible, conspicuous than ever before. In view of the current situation, I decided to look back at our Federal Constitution to find some answers.

If anyone wants to invalidate my findings, please bear in mind that this is solely based on my own close reading.

The much debated Article 153 of the Federal Constitution, because it is often plucked out by many to reaffirm that Malaysia practices ‘constitutional racism’, actually grants equality to all of her citizens.

Part II of the Constitution under “Fundamental Liberties” guarantees all Malaysians have rights regardless if you are Malay, Chinese, Indian, Indigenous or from other ethnic minorities. There is a vast difference, however, between a right and a privilege. A right is an entitlement, while a privilege is not.

As some feminists have defined, a privilege is an “undeserved social granting of a route to accessing cultural resources”.The keyword is undeserved. I cannot think of anyone who would want privilege with such a blaring definition imprinted on it.

Why am I striking the “privilege” chord? Dr. Kua Kia Soong the Suaram Advisor, explains in his 2012 article online “Do Malays have special ‘rights’”, that privileges can be dismantled once the intended results have been met, because they are conditional. A right, however, cannot be revoked.

He also quotes “An Introduction to the Constitution of Malaysia”, by Tun Mohamed Suffian Hashim (1972:245) to give better reference on this sensitive matter. I have personally picked this up as well and I realised there isn’t any reference to ‘Malay rights’.

In Article 153, there is a mention of “the special position of the Malays”. However, what I gauge from that inclusion is that, the main reason for including Article 153 in the Constitution, after it was discussed by the Commissioners, “was to rectify the perceived weakness of the Malay community in the economic field, the public service and the problem of Malay poverty at the time of Independence”.

A microscopic look into the Report of the Federation Of Malaya Constitutional Commission 1957, Chapter 9 Fundamental Rights, “Special position of the Malays”, reveals that although this provision should be made for safeguarding, it is however difficult to reconcile the terms of reference in granting “the special position” permanently to one community, as it will be unfair.

The report continues to explain that the “special position” has always been recognised and after having considered the issues and concerns arising with the need to safeguard, it still eventually falls on the bed of equality and the enjoyment of fundamental rights.

“Our recommendations are made on the footing that the Malays should be assured the present position will continue for a substantial period, but that in due course, the present preferences should be reduced, and should ultimately cease so that there should then be no discrimination between races or communities”.

In “Empires at War: A Short History of Modern Asia Since World War II” by Francis Pike, he discusses the heat of the racial riots in 1969 with regards to Tunku Abdul Rahman and his failure to notice the dissatisfaction of UMNO’s performance.

Pike narrates that Tunku regretted not suspending the general elections as he wanted to declare a State of Emergency instead, and allow people to cool off.

“In this statement, Tunku revealed the peculiar essence of Malaysia’s democracy; it was stable only as long as UMNO and its communal political allies accepted the status quo of permanent Malay rule”.

From this pattern, it is sensed that there lies a key player, in Tunku’s own words, “a group of men usually referred to as the “Ultras… who have maneuvered themselves into position in UMNO” in all future racial relations.

Now if the Constitution provided equality and we formed a nation, what could have been a trigger to ignore the Commissioners recommendations and continue with a discriminatory clause?

“Bumiputera” or not, the conception of this racial privilege dichotomy is one that is cataclysmic and politically motivated used again to separate and subjugate the nation.

Constitutional amendments, initiated by UMNO “and the adumbration and implementation of the post-1969 suite of affirmative action policies, ensured that henceforth political accommodation would be on Malay, and more specifically, UMNO terms, and clearly signalled that Malay power brokers would not tolerate any challenge to their authority”, Carl Vadivella Belle profoundly writes in his book “Tragic Orphans-Indians in Malaysia”.

This idea of superiority and supremacy is like cancer, a constant multiplication of deadly cells. It is a complex and emotional take on the situation, nevertheless we have to come to terms with our history and make analysis for ourselves.

No politician should tell you what to believe in, instead politicians should start believing in the power of the people. If you believe inequality is here and you want it rid, then you must stand up and be counted. It takes both sides of the spectrum to fight this.

The price for playing racial politics is unfathomable, but I tried to understand the reasons people kept voting such politicians and subscribing to racial politics, however it seemed to me that Malaysia wanted and have always tried to portray a ‘moderate’, successful, high income nation to the world. In this process, we sold our souls to unscrupulous parties because we were afraid to challenge the leadership.

Many were comfortable with the success Malaysia had and ignored the underlying fractures. The horror of the 1969 riots will forever remain, but something fruitful has to be taken from that incident.

There must be intellectual discussions about these pressing issues, however under the present circumstances I doubt any discussion will remain civil because the game on fear and subjugation is amplified by threats from thugs, “Ultra” groups, which I suspect are paid, otherwise feeling charitable in these difficult times.

I voted for the first time in the last general elections, but my still heart bleeds for the nation. I am enraged and disappointed.

Novelist Arundhati Roy succinctly says, “If we were to lose the ability to be emotional, if we were to lose the ability to be angry, to be outraged, we would be robots. And I refuse that”.

Let it be clear that the space given to be emotional does not equate to reacting. Reacting ensues emotions that aren’t channelled in a decent manner.

Responding however, is the invitation for one to take these emotions,  which you have let yourself feel, and put it to an intelligible purpose.


Tariq Ismail, the grandson of former Deputy Prime Minister Tun Dr Ismail, got acquainted with me recently on social media and we had many insightful discussions on current issues and the Constitution. He is now reaching out to all Malaysians to sign an online petition to protect our Constitution from being abused.

Now, this is one of the many appropriate ways to show your Malaysian spirit and love for the country by responding. Protect the document that binds you and me together. However, do not be bamboozled that this is all about race. Equality, a discordant term to privileged groups, also extends to gender, class, sexuality and disability.

We are so blessed to share this nation with people from diverse colours, different religious beliefs and sexual orientations, and not ignoring the innate nature of hybrid identities.

The hope and need for Malaysia to be inclusive is vital. One can never pick and choose equality. If you terribly want to be equal, you have to accept everyone.

It is unfortunate that opposition politics also fail to address some of these issues. Until someone or some political force decides to embrace the true meaning of equality and inclusivity, then change will come sweeping in.

Until then, I urge you to protect what we have now. That’s the Constitution and you.


Malaysians must cherish the Constitution

November 6. 2015

Malaysians must cherish the Constitution in the Tun Dr Ismail way

 by FMT Reporters
Tun-Dr-Ismail and ArtTun Dr. Ismail and Art Harun

Art Harun says country’s social and political ills are the result of a warped interpretation of the Constitution but that it’s not too late to do something about it.

Malaysians must go back to upholding the true spirit of the Constitution the same way that the late Tun Dr Ismail Abdul Rahman did all those years ago, said lawyer and social activist Art Harun.

Dedicating the latest edition of his video (above) “Art of the Matter” to Tun Dr Ismail on the occasion of his 100th birthday on November 4, the lawyer praised him as the country’s “unsung hero” and described him as a “reluctant politician” but a “true statesman” who was “the best prime minister Malaysia never had.”

As Malaysia’s Second Deputy Prime Minister, Tun Dr Ismail died while in office at the age of 57 on August 2, 1973.

In the video, Art said the political leader cherished the rule of law and upheld the Constitution, and related how his most poignant statement was the one he delivered on television after the racial riots of May 13, 1969, in which he declared: “Democracy is dead.” He was Home Affairs Minister at the time.

Art said that although a Malay himself, Tun Dr Ismail did not believe in “Ketuanan Melayu” (Malay supremacy) as did the country’s leaders of today but believed instead that: “We (Malays) want to be dominant, but we wouldn’t want to dominate.”

He praised Tun Dr Ismail for standing firm against any attempt to promote polarisation, when he asked, “Why did we fight for Merdeka? (Independence) So the different races can be divided? I hope a new discussion will start. Why are we building Malaysia? What Malaysia are we building? What kind of symbol is Malaysia supposed to be?

“That statement made years ago, still rings true now,” Art said, more so now as the country is in a sad state.

Reaching out to Malaysians to sign an online petition to protect the country’s Constitution, started by Tariq Ismail, Tun Dr Ismail’s grandson, Art said, “We have disrespected our own Constitution for far too long especially in the past 10 years.

“I think, we have abandoned the true spirit of the Constitution, have given a warped interpretation of the Constitution.”

He said the people needed to go back to the Constitution, study its history and ask themselves honestly if they were doing justice to it.

He added, “The social and political problems in the country – corruption and abuse of power, the rise of Islamisation, racial polarisation, all these problems if reviewed objectively can be tied up to one thing – the Constitution.”

Malaysian Couple gets Death Sentence for Murder of a Cambodian Citizen

October 31, 2015

COMMENT: This is a piece of good news coming out of Malaysia. AlthoughDin MericanYcapital punishment is not sanctioned in many countries, I feel that justice must done. No one has the right to kill someone’s daughter or son, brother or sister and anyone else for that matter, and get away with it.

For this Malaysian couple, the time has come for them to face the consequences of their brutal murder of a Cambodian national who came to work for them. Justice is served when the Appeal Court reversed the High Court decision. The convicted couple has, however, been granted the right to appeal to the Federal Court whose decision will be final.

Let this serve as a start to reminder to all Malaysian employers that they have a duty to take good care of their staff and respect their human rights. I congratulate to The Royal Government of Cambodia for its decision to stop the employment of maids and workers by Malaysians.–Din Merican.

Malaysian Couple gets Death Sentence for Murder of a Cambodian Nasional

by Ida Lim


Death sentence

The Court of Appeal today (October 30,  2015) convicted a Malaysian couple for the murder of their Cambodian maid, who they starved to death in 2012.

In its unanimous decision, the Court of Appeal found that there were merits in the prosecution’s bid for the duo to be convicted under the original charge of murder, which carries a mandatory death sentence.

“We set aside the conviction and sentence imposed by the High Court and substitute with an order of conviction and sentence under Section 302 of the Penal Code,” Court of Appeal judge Datuk Seri Zakaria Sam said when reading out a three-man panel’s decision.

This means that Soh Chew Tong and his wife Chin Chui Ling, aged 46 and 43 respectively, will face the death sentence unless today’s decision is overturned.

Chin broke down and sobbed after the decision by the panel chaired by Court of Appeal judge Datuk Tengku Maimun Tuan Mat and also composing of Datuk Ahmadi Asnawi.

When met outside the courtroom, their lawyer Datuk K. Kumaraendran confirmed that his clients have instructed him to file an appeal with the Federal Court.

On May 16, 2013, the Penang High Court convicted the duo of the lesser charge of culpable homicide not amounting to murder under Section 304(a) of the Penal Code, sentencing them to 24 years’ imprisonment each for causing the death of 24-year-old Mey Sichan.

The crime was said to have occurred at the couple’s residence at a shoplot in Bukit Mertajam, Penang between January 1 and April 1, 2012.

The 148 cm-tall Mey was found dead at the shoplot on April 1, 2012 and weighing only 26.1kg.

At the Penang High Court, the Judge reportedly noted that 29 old and new injuries were found on Mey’s body, including lacerations and bruises.

These injuries and the lack of fatty tissue or muscle layer at her body’s abdominal parts and chest led to the forensic pathologist’s conclusion that she had lacked food for several months, the High Court judge said.

Both the lack of food and injuries was said to have worsened her gastric ulcer which led to acute peritonitis and her subsequent death.

The Mind, Master-Mind and Conscience in Dispensing Justice.

October 25, 2015

6th Logan Memorial Lecture 2015
James Logan Memorial Lecture 2015

The Mind, Master-Mind and Conscience in Dispensing Justice.

by  Justice Dato Syed Ahmad Idid

Justice Dato Syed Ahmad IdidJames Richardson Logan “should not be forgotten. ..had much to do with making Penang what it is today” (Penang Economic Monthly by Shakila Rajendra in 2010). He “even petitioned for prominent secret societies to be recognised as organisations”. He coined the name “Indonesia”.

Logan’s memorial expounds the four cardinal virtues of justice, prudence, temperance and fortitude. I hope our conversation this evening will encapsulate some of the virtues that human beings crave to achieve.

I understand all of you are very busy. The time, after Friday prayers, is now for you to rush to where you can find love .. at home or elsewhere! And you are in jovial mood, all primed for the happy evening!

Most lectures let the guest speaker talk on and on. But, with your co-operation, let us change this to one where you respond, contribute ideas and answers and enjoy the session. I understand it will be sinful if I go over 6.00pm. We must not commit any sin today.

But uppermost in our minds must be the desire to cover and finish discussions on the topic. You must have wondered if the topic is on psychology and that only the psychiatrists will be keen to learn. You may be right or, in the infamous video, “correct correct correct”. Here we shall try to “korek korek korek” (did dig dig for) information regarding some aspects of human values which are necessary in the administration of the judicial & legal system and in those entrusted to dispense justice.

Some of you say that this topic is very difficult. All of us realise the intricacy of the human mind. Can I claim that no speaker (in Malaysia or the World) has dealt with it or talked on it? I shall do my best to interest you and hopefully bring a fresh perspective to the justice system.

I could have chosen to speak on “Court Jesters”. You know many! Or on “justice by night” or the Sexy Judge or “Hukuman Hitam” or something which we can easily respond to. Instead I have specially selected to converse on “Roles of the Mind, Master-mind and Conscience in Dispensing Justice”.

There seems to be two near-impossible actions: {One} is to put someone else’s money into your pocket. (cf James Freedman).And {two} to plant your ideas in someone else’s head (or brain or mind).

Loke Thye Kee Restaurant, Kopitiam & The Bridge Grill, where we are, is well known and popular on this beautiful island. PLAC has selected this spot for the dishes it serves! Let me offer you some food for thought!

Principles of Law (Civil and Criminal)

One of the first principles in contract law is “consensus ad idem” (meeting of the minds). Yet in dispensing justice there is no such consensus. And there is no agreement by both parties or their counsel that the Judge is right. And we all go on with our lives!

Before a judge decides in a criminal case, he or she considers the elements of criminal responsibility. This must have the actus reus (the act or omission that forms the physical component of the crime) and mens rea (the intention or knowledge of wrongdoing that is part of the criminal act). Those not versed in Latin may be forgiven if they misspell this as the “men’s rear”…(example: sodomy and un-natural act with a cow.)

Let me quote Latin: “actus reus non facit reum nisi mens sit rea” or the act is not culpable unless the mind is guilty (“guilty mind”). Remember Blackstone’s formulation: “It is better that 10 guilty persons escape than that one innocent suffer”. Don’t you prefer that all ten guilty persons be properly convicted and suffer their due punishment?

What roles do the claimants vs defendants (respondents), prosecutors vs the accused/defendants, counsel for the Prosecution vs those for the defence/the other party, court clerks, Research Officers, Registrars and any others involved legitimately in the administration of the judicial system .. with one objective: to achieve justice (and not “just” “ice”).

I must confess my topic may not have much to do with the contents in the Books. One is “How Judges Think” by Richard A Posner (Appellate Court Judge). I am thankful to my US arbitrator friend, Mr Michael Heihre, who presented me this Book when he heard that I was going to write a Book on “How Judicial Decisions Are Arrived at” (or something around that issue). In Posner’s book, among other matters, he discusses (i) the mind of the legislating judge and (ii) judges are not law professors.

The second Book is by Steven Pinker “How the Mind Works” where, among several more, he discusses (i) Thinking Machine, (ii) The Mind’s Eye and (iii) Hot heads, Family Values. The third may be nearer your home. This is written by Britain’s former senior Law Lord,. Tom Bingham’s The Rule of Law (Winner of the Orwell Prize for Best Political Book 2011). This was presented to me by a retired English Judge, John Beashel, who studied law with me in London in late 1960s. We had not met for 42 years. And then he visited this island the year before. We met for dinner at your E & O. We visited Frasers Hills. See how our minds worked!

Brain? Mind?

Brain is that “3 pounds of convoluted mass of grey and white matter” and it “refers to the machine made of neurons and a live mind is the product of that machine”. Brain and mind are not the same. Brain can be seen (and held in your hand!) and it is the tangible part of the body. Mind is invisible.

{Take an orange .. about the size of a brain. “I change my mind”. Take an apple. Brain has a definite shape but mind does not. When one is angry with a subordinate, one tends to utter or shout “I will give you a piece of my mind”. And if one gives away pieces, nothing should remain! Is that not so?} But no part of the mind can be given away!

I was at a dinner on 19th at the Malaysian Petroleum Club on Level 42 of the Twin Towers. I met an old Arbitration friend from the UK, Professor Jeffrey Blum. With us were Tuan Haji Abdul Rahman Azubir (senior lawyer and host) and Mr Wan Idris Wan Ibrahim, a chartered accountant.

During our conversation the Professor and I exchanged information on latest arbitration “defences”. He had just landed in KLIA without his luggage which was still in Abu Dhabi. He was pleased to share with us, from his h/p, a voice of the mind:

“If you have an apple and I have an apple and we exchanged apples, then you and I will still each have one apple. But if you have an idea and we exchange these ideas then each of us will have two ideas” (George Bernard Shaw (1856-1950) Irish playwright and journalist. (Within the Winning Behaviours – Creating a Winning Culture).

To many people, brain and mind are the same and oftentimes used interchangeably. Mind is related to the brain. Brain is physical while mind is mental. We shall not argue over the semantics or the characteristics of each or of language but, for purpose of our conversation, can we add that mind refers to the part of oneself that is capable of thinking. To use the computer lingo, brain is the hardware while the mind is the software.

The Mind likes to see patterns. In Courts, we permit our Judges to refer to old cases and hail them as a principle of “stare decisis” or judicial Precedence. But in the World Court or the ICJ at The Hague judges may depart from previous pattern (decisions) and decide differently. Put this in another way, we say that “one important function of the brain/mind is to make sense of the situation”.

Brain/Mind stitches together the various information (in court we call this “evidence” and the statements as “testimony”). It is said the judges use their senses and their minds to fill in the gaps, guess what is out there. Conscious mind is a product of one’s brain.

In days gone by (and in several societies) threats of ghosts and danger and harm can over-power weak minds. People then obey and do what their parents place upon the children or political leaders on the voters and the nation. Remember the old Justice who committed suicide here in Penang? Some stress or heavy burden must have overcome him until he could not control his mind to remain calm and rational.

Here you can see that Judges, being human beings, can lose control of their minds. And the resultant decision(s) may be those he/she, in normal circumstances, would not have come to. Please give me a few examples of judgments which have gone haywire or which did not follow logic or the law. (You do have a lot!)

At a Round-table Forum, a former Bar Council Chairman shared his personal experience of a case where the Court of Appeal “did not know the law” .. and he intervened to help them with the law. In order to know the law and to apply, Judges must have clean and clear minds. And knowledge is power. Judges (and the AG) must know the law constantly.

I know this aspect will interest you. I have much material on it . We can talk/discuss for a week! So our mind now tells us: “Move on dear Guest Speaker. We cannot risk going to our dinner late” . On that my mind tells me we skip this and go back on “the pattern” and discuss what concerns the topic!

Jiddu Krishnamurti talked of the mind and mentioned “biological density, computers, Mind Control and how the Communists tried that”. The mind is the most powerful tool. You must have heard of “The Power of the Mind”. But you do not hear of the “Power of the Brain? Of the Leg? Of the Ears?”

I read that 98% is sub-conscious mind. What shapes that? Can the computer soon enough develop a mind of its own? We have AI or Artificial Intelligence. We can develop a computer into which the Courts input the evidence (for and against, and hopefully truthfully and in full) and the computer then churns out a decision or verdict! Until that time, our Judges have to juggle with the intricate evidence (especially in complex cases with complicated data) and decide. Let us pray and hope our Judges have the capacity and capability to perform this essential task with honour and honesty.

You will say that judges must possess empathy and so feel the emotion of others, identify and understand the feelings and motives and see the situation from their (Counsel’s, witnesses’) perspective and then mix and turn and reach a sound decision! {Even in this simple example, the parties and their counsel can be at loggerheads with one party, usually the losing side, not accepting what the judges say!)

I read Jonathan Turley of The George Washington University article on “9 Greatest Supreme Court Justices of the US” among about 120. He stated that “only a few managed to see a legal horizon far beyond what their contemporaries could”.

So perhaps Justice Sonia Sotomayor may not fit the bill because to her “judging is keeping an open mind limited to what the law says”. There is no standard profile for the selection of great justices. I once addressed the Bar Council’s International Conference a dozen or more years past where I set out the criteria.

One is health. You cannot have judges who sleep while the trial or proceeding is on. You cannot have a judge suffering from piles or High Blood Pressure. He’ll yell at you when the pains come on. These instances show you that external factors can impinge on the mind to act in ways you do not want in the people who must dispense justice.

Coming back to the “US 9” the writer added that “among the 9 there was the ability to use their MINDS, to rise above conventional thinking and prejudices”.

We are strapped for time. I shall distribute a brief paper outlining their decisions which set them apart. Among the others, some were mediocre in the US. We can bring up our Malaysian judges who were or are incorruptible and made/make sound decisions. And to quote Turley these judges (in the US) “possessed extraordinary insight (minds) that allowed them to transcend their time and articulate far-reaching views of the laws”.

Another instance where I decided on discussing the MIND is the story of China’s Submarine tests before the WW2. I have not found any authority on this but from gossips when I visited (and stayed in Kunming for a month) it appeared that the Chinese Naval Command trained their submarine crew in the Poyang Lake, its largest fresh-water lake covering 3500 sq km (or 1400 sq miles) … to mislead the US whose planes were flying on the coastal seas to spot these submarines! . {Qinghai Lake (or Mongolian “kokonor”) meaning Blue Lake is the largest lake but it has saline}

Here in War (and Peace) enemies and friends mislead one another. But I submit in the service towards justice, the lawyers, witnesses, court staff/officials and judges must never mislead nor put in wrong information or false testimony. Remember: ours is the honourable profession.

You might have been the subject of anger or hatred of a judge. You found that you had difficulty when you appeared in his/her court. Decisions made by any court (or tribunal) against a party just because the judge or arbitrator harbours hatred or anger can never be good or rational. If a judge places his personal feelings and/or extraneous factors in coming to a decision, that ipso facto brings disrepute to the Judiciary. The mind of such a judge or arbitrator is skewed. He/she must be removed.

A recently retired CA Judge, in the Sabah Daily Express, said that a “judge must not decide a case in accordance with his religious or political leanings”.

I was invited to a very interesting historical building in KL .. the Loke Mansion … on Friday 16th. The Law firm of Cheang & Ariff, together with other law firms, hosted the “dinner honouring Dato’ Mohd Hishamudin Mohd Yunus” (who made the statement which I just quoted!) .. My wife and I were at Dato’ Ariff’s table together with Prof Emeritus Datuk Dr Shad Saleem Faruqi and another retired CA Judge Dato’ Syed Ahmad Helmi and his Datin. What did our minds discuss?

In India, there is a different story. According to a September 22, 2015 Supreme Court notice, the Chief Justice of India, HL Dattu , rebuked the lawyers of the Madras High Court for instilling a “fear psychosis” in the minds of the judges, with a constant threat that these lawyers with “mob mentality” might enter Court rooms and shout slogans.

Can we permit the Judges to change their minds? See Fed Ct Lombard Commodities v Alam Vegetable (2010) 1 CLJ 137. Someone said my lecture at the ALA conference in Hanoi (Recognition of Foreign Judgments) managed to balance the minds of one judge from his earlier (wrong?) decision?

Judges must never react. The new Google CEO, Sundar Pichai, expounded the “Cockroach theory”. He reminded us (and more so our Judges) that “reactions are instinctive whereas responses are well thought-out”.

This plainly is the reason why those who appear before the Courts should be given a written “ground of judgment”. The written piece can show the MIND of the judge. And before that, those prosecuting must show their MINDS in the way they present their evidence. Is it not a crime if the people prosecuting especially serious crimes have haphazard thinking and are lacking in enthusiasm in their work? Say a man, accused of murder, has eight elements present in the charge but the prosecutor only offers evidence on three or four AND, in dereliction of duty, purposely hides the other 5 or 4. The Court pronounces the murderer “Not Guilty”. Quite rightly for lack of evidence. The minds of the prosecutors must be examined and the intention to torpedo the case uncovered (and, if not too late, be cured or remedied in each and every case).

Did the prosecutor benefit financially from such inaction? Or did a Master-mind instruct him to do so? In a recent disclosure, via Sky-NEWS, +“Cowardice” sent wrong man to Death Row+. There a prosecutor confessed that his failure to follow up alternative leads in the robbery and murder of a jeweller led to a man being wrongly put on death row for nearly 30 years. The prosecutor admitted: “I was arrogant, narcissistic .. caught up in the culture of winning.”

In the US, the DOJ has constantly monitored such misconduct and rated them as crimes. (Watch Korea’s “Blood Thirsty Prosecutor” (Isn’t he more an Investigator?) in the Kix Movies). Get more information on “What our eyes can’t see, the brains fill in” from researchers in the University of Glasgow : Institute of Neuroscience and Psychology. This is heavy stuff for our session today !

Again we meet the MIND … the wrongful thinking; the misuse of the brain. The extrinsic thought should not play any role in the decision. That is why judges cannot agree with the Management Guru’s lesson of “Thinking Outside the Box” for Judges. They must consider all but within the principles, the facts, customs and the tenets of justice. See “US 9” above.( Remember what Sotomayor said above? She limits herself)

Can we permit the Judges to change their minds? See Fed Ct Lombard Commodities v Alam Vegetable (2010) 1 CLJ 137. Someone said my lecture at the ALA conference in Hanoi (Recognition of Foreign Judgments) managed to balance the minds of one judge from his earlier (wrong?) decision?

Judges must never react. The new Google CEO, Sundar Pichai, expounded the “Cockroach theory”. He reminded us (and more so our Judges) that “reactions are instinctive whereas responses are well thought-out”.

This plainly is the reason why those who appear before the Courts should be given a written “ground of judgment”. The written piece can show the MIND of the judge. And before that, those prosecuting must show their MINDS in the way they present their evidence. Is it not a crime if the people prosecuting especially serious crimes have haphazard thinking and are lacking in enthusiasm in their work? Say a man, accused of murder, has eight elements present in the charge but the prosecutor only offers evidence on three or four AND, in dereliction of duty, purposely hides the other 5 or 4. The Court pronounces the murderer “Not Guilty”.

Quite rightly for lack of evidence. The minds of the prosecutors must be examined and the intention to torpedo the case uncovered (and, if not too late, be cured or remedied in each and every case).

Did the prosecutor benefit financially from such inaction? Or did a Master-mind instruct him to do so? In a recent disclosure, via Sky-NEWS, +“Cowardice” sent wrong man to Death Row+. There a prosecutor confessed that his failure to follow up alternative leads in the robbery and murder of a jeweller led to a man being wrongly put on death row for nearly 30 years. The prosecutor admitted: “I was arrogant, narcissistic .. caught up in the culture of winning.”

In the US, the DOJ has constantly monitored such misconduct and rated them as crimes. (Watch Korea’s “Blood Thirsty Prosecutor” (Isn’t he more an Investigator?) in the Kix Movies). Get more information on “What our eyes can’t see, the brains fill in” from researchers in the University of Glasgow : Institute of Neuroscience and Psychology. This is heavy stuff for our session today !

Let us try a small case:

A 45-year old woman was charged for “possession and custody of narcotics, 2kgm” found hidden among fruits in an unsealed box placed under her seat in a bus from Thailand to Malaysia. Her defence: “I am an old woman, this is my first journey to visit Haadyai. I bought the fruits (oranges, apples and durians) for my grand-children. I do not know who placed the drugs in the box. It was not sealed and anybody could have hidden the drugs in my box”.

Verdict: Not guilty. (Doubts .. unsealed box, so accessible to anyone to put in the narcotics.) But proper investigations revealed (but the Prosecutors did not place the evidence in Court):

From her passport and immigration stamping, she was a regular visitor to Thailand. She chooses to be a passenger on the bus, and selects the same seat. She herself placed the box of fruits under the seat. Nobody could gain access to the box. Intelligence collected indicated she met narcotics gang in Thailand and , upon her return to Malaysia, would bring the box to an address which the Customs had been shadowing as a contact point for narcotics. How will your MIND now respond?

What I can say is that the Minds of a Judge, a Politician and a Businessman are different. The Judge essentially must protect and comfort all humanity with true justice. The politicians are expected to render services and make people’s lives worthwhile. Or they will be voted out if there are leakages and renters. But the businessmen’s first priority is the bottom line. They cannot care less for ethics. They cut corners when they grope for profits. I am sure you know of other differences.

Let us move on to the Master-Mind. Usually the description is used in bad or negative sense. But there are companies who hold out as master-minds. (Research on Mastermind Group Sdn Bhd and Mastermind Training Academy – audience may wish to look into these and others merely as a matter of intellectual exercise.).

It is said that “the mastermind is greater than the sum of the individual minds” or that it is “creative intelligence”. Or that he has outstanding intellect. If he is in the spirit to help build a nation or country selflessly and as a contribution to humankind, that is a good Master-mind.

If his ideas are towards corruption, evil, crimes and harming other people, then he must be the usual “master-mind” that most novels portray. But in real life, they exist and survive and seem to thrive.

You can include someone who can plan and execute, especially skilfully a complex activity, (in real life in Europe and the US bank robberies .. do you know of Ocean’s 13? … in such details to ensure success? There is the Bali 9 where Andrew Chan was described as either the master-mind or Kingpin or Godfather .. and currently on one of the channels you have the Blacklist and its “hero” Raymond “Rex” Reddington is the mastermind.)

A group has selected 20 of the “Greatest Tech Masterminds” for us. Twitter 3 founders, then Mark Zuckerberg, Google 2 founders, the inventor of flash USB drives, then the Brit who give us e-mail-wifi-World Wide Web, Father of the internet: Steve Jobs, and then Bill Gates (who prefers “Windows”). Then the inventor of the Industrial Robot, father of cell-phones, Intel co-founder.  To be fair to the ladies, one Tall Person among the greats was COBOL Common Business Oriented Language Rear Admiral Grace Hopper of the US Navy.

The U.S. Navy guided-missile destroyer USS Hopper is named for her. Can we name our submarine after any Malaysian lady? We should ! Can you pick out any or many Malaysian females with minds or intellect so outstanding that you consider they can be listed as “master-minds”?

There is a Malaysian Chinese who could be credited as an inventor but he sold out too quick, too cheaply. Check the list above and tell me which item he “invented”! (USB=(first single chip) Universal Serial Bus/Pen drive.)

Some studies had been made of the characteristics of the master-minds. First they are clear headed. They are well ahead in brain-storming sessions by giving the approaches to situations and how to come up top. I like to add that they are logical and pragmatic as well as attentive. They do not usually lead unless they are invited. They can plan (this is obvious as master-minds must have an excellent mind) and they can articulate their decisions. (Thanks to Wikipedia.)

With such qualities should not all judges be master-minds in arriving at their decisions judiciously and in good time? Do you have any names of judges of this calibre in Penang? In the other States? In Putrajaya?

But wait! .. master-minds are also top-class people! And they learn how to get their tasks done at professional level of quality. So some of the names you pick out may now have to be dropped (?). They are driven to solve complex problems and to create organised solutions. Masterminds tend to make positive statements instead of negative ones. Again here you will have to drop other names as some of the decisions and the way they structure their judgments call for huge and urgent improvements! And now you may drop all other names because Masterminds insist on researching all the available data

Or do you consider your list has people in the class of Isaac Newton? Ben Bernanke? Dwight D Eisenhower? Stephen Hawking? (from Wikipedia). I am sure the list is not exhaustive and may not have considered Judges from the US, UK. Europe including Russia, Australia & New Zealand, China, India, Philippines and other Asian countries like Indonesia, Taiwan, Singapore and our Malaysia. (Shall we call ourselves “3-in-1”).

It is already accepted procedure that there are appeals from the High Courts (HC) to the Courts of Appeals (CA) and thence on to the Federal Court (Fed Ct). There are cases where the CA disagree with the HC decisions and then the Fed Ct may or may not agree with the decision of the CA.

But the worrying piece is where, like in the Soviet era in Russia and its satellites, the courts can only decide as outlined by a hidden hand (the Master-mind Supremo). I used to laugh out loud when I heard this whilst reading for the Bar at the Inner Temple in London. I said to myself “This cannot be because Judges must be true humans with the clean inner core and God above”. But later I was told the Courts could claim to be Open Courts and could receive testimony and evidence. But the Supremo would decide the outcome! The members of the Supremo/”Committee” (or Trio?) were not in the court to listen to the parties! They consciously decided on political considerations.

Hence many cases in favour of the accused or, in civil cases in favour of the defendants, were decided against the body of evidence. A guilty man, in league with the Prosecutors or the Ministers, would go scot free while an innocent man, arrested but nowhere connected to the crime, was convicted. The Commissar/Supremo telephoned the Judge simply to say “Find him Guilty” (or “Claimant must win”) and the Judge had to write and twirl and twizzle some sort of “grounds” to support that decision.

So you see some of those decisions were clearly unsupportable by facts and law. Yet the party was wronged (by the State). This was the way the Master-Minds worked in the Courts in some countries.(Not in Malaysia)

I hope I can end your suffering soon when we finish discussing on Conscience! My authority is the Merriam Webster. “Conscience – that part of the mind that makes you aware of your actions as being either morally right or wrong” or “a feeling that something you have done is morally wrong”.

Let me digress briefly to the politician. According to Al Gore in his “An Inconvenient Truth 2006”, “It is a politician’s natural instinct to avoid taking any stand that seems controversial unless and until voters demand it or conscience absolutely requires it”.

Henry Fielding: “Conscience is the only incorruptible thing about us”. And a German proverb says: “A clear conscience is a soft pillow”. Madame Anne Louise Germaine de Stael: “The voice of conscience is so delicate that it is easy to stifle it; but it is also so clear that it is impossible to mistake it.”

Martin Luther warned: “It is neither right nor safe to go against conscience”. And American Martin Luther King Jr added: “There comes a time when one must take a position that is neither safe nor politic nor popular but he must take it because conscience tells him it is right”.

And Albert Einstein also cautioned in similar vein: “Never do anything against conscience even if the State demands it”. It is the inner sense of what is right or wrong in one’s conduct or motives, impelling one towards the right action. Also it involves the complex ethical and moral principles of right thinking people. I say “right thinking” because if we get the “wrong-thinking” groups then we are in grave trouble.

And surprise! Surprise! Jessel MR in Re-National Funds Assurance Co (1878) declared that “the Court is not, as I have often said, a court of conscience but a Court of Law”. There you are. One can easily take this stand and decide within the narrow parameters of law and facts. But if our Courts are Courts of Justice, then judges need to do more.

“Justice is conscience, not a personal conscience but the conscience of the whole of humanity. Those who clearly recognise the voice of their own conscience usually recognise also the voice of justice”. (Alexander Salzhenitsyn 1967).

If we go back thousands of years, it was known as Solomon (or Sulayman) Wisdom. But today, except for the barbaric and inhuman corrupt regimes of the world, civilised nations adhere to laws and the constitution. The major worth is to achieve justice. As I said some years ago and repeated a few minutes ago, it is NOT “just” “ice”.

Mahatma Gandhi said: “There is a higher court than Courts of Justice and that is the Court of Conscience. It supersedes all other courts”. Stokely Carmichael: “There is a higher law than the law of Government, This is the law of conscience.”

Toba Beta warns: “Betrayal is common for men with no conscience”. So anyone involved in the administration of justice must have his/her conscience and obey it. If they decide not to bow to conscience then they are open to committing crimes. They can betray our Nation. Watch out for those on the pedestal (“ivory tower”) while the pedestal swings about!

And those in the administration of justice who do not believe in conscience do not also believe in justice. They are most dangerous. Perhaps they want to make money while on the Bench? And live a life of sheer luxury with palaces and castles and maids, drivers and Spas? But be warned by a Chinese proverb: “He who sacrifices his conscience to ambition burns a picture to obtain the ashes”. What is this discussion all about?

Take a case. At the High Court, the Judge makes a decision. The CA reverses it. If that is a criminal case it ends there. In Civil/Constitutional matters, it goes to the Fed Ct.

Where in that structure would the Master-minds enter the picture? If every judge possesses a strong conscience would the master-mind be able to “interfere” and undermine? With the entrance of the master-mind even an iota of justice will fly away. What if I add that the master-mind need not be political or anyone in the Government. What if we agree the master-mind is a business tycoon handing out bribes, either by his “macai” or his counsel, and altering the decision?

We shall not test your collection of cases where injustice has occurred (and more cases can be forthcoming?) where, through master-minds the courts were (or will continue to be) made the instruments to destroy people and families. The Bar, the Judiciary and the Public have to “stand and stare” (William Henry Davies).. and “let the heavens fall”? {Fiat Justitia ruat calum}Do you care? I sincerely hope you do!

Just before we conclude – in the Courts, people are the most important!mIf we select the wrong type, we certainly will pay a high price for our folly. I shall just add here a hypothetical scenario of three “groups”. We must avoid descriptions of race, colour, creed, religion, ethnicity or nationality. Who will you select?

But cannot the persons in the group change and improve?NGroup A: When alone, he tours his own country. When in pairs he tours foreign lands. If they become three or more, they colonise other countries.

Group B: When alone he reads and learns. When in pairs, they begin trade in their land. And when they become three, they visit foreign lands to internationalise their business. Group C: When alone he sleeps. When they are two, they waste time in petty talks. When they become three, they quarrel.

This is to encourage participants to think seriously of person’s MINDS and how, by their actions, they influence their habits and intellect and so conduct their business or duty. It is the MIND that makes the difference between judges and others, between greatness and the mediocre, between bad and good and between true calibre and a hoax. If this talk leads you to thinking after this session, then I am very happy for you.

As a final statement on this session, may I say that people involved in the administration and dispensing of justice must be men of quality and integrity and with the best MINDS the nation can nurture. We have good people in you. (Note Warren Buffet’s 3 qualities .. integrity is topmost.)

In concluding, I have a personal secret which I am anxious to share with you. When I was first approached by Mr Abdul Fareed bin Abdul Gafoor to address Penang lawyers, I was motivated. You must have passed by the Tengku Syed Hussain Idid mosque (now re-named the Masjid Lebuh Aceh or Penang’s Acheen Street Mosque). The wakaf was created in 1820 by my Great3 (or great great great) grand-father.


It was Captain Francis Light who invited my Great3 Grand-father “to move from Aceh to Penang to help spur the island’s economic growth”. Wong Chin Hooi, in the NST of August 30 1993: “Achenese, Bugis, Dayaks, Javanese and Indian Muslims fostered an urban society and lived in harmony in the Islamic spirit”.. and alongside the Chinese, Indians, English, Europeans and others.

And what do we know! My Great3 Grand-father arrived from Aceh in 1792 and passed away in Penang in 1840. James Logan was born in 1819 in Scotland. He moved to Penang in 1839 where he died in 1869. This can mean that both my Great3 Grand-father and Logan were on this island in 1839 and 1840. My My! Those “pendatangs” left their hallmarks.

You do remember that Penang was conferred “City” status twice, first by the British Monarch QE2 and lately by the Federal Government! This is rare and something the residents of this island can be proud of.

It now leaves me to sincerely thank you and the Organisers for inviting me here to meet you. I thank you for your participation. I hope this is fruitful for you. I have gained from your views and thoughts. I certainly will input many of them in my Book. I hope it can be on “How Judges Make their Decisions”.