Malaysian Bar Council initiates Campaign to Repeal POTA


May 17, 2015

From Democracy to Dictatorship: At what stage is Malaysia?

In 1887 Alexander Tyler, a Scottish history professor at  University of Edinburgh  had this to say about the fall history-of-democracy-stephen-stockwellof the Athenian Republic some 2,000 years prior:

“A democracy is always temporary in nature; it simply cannot exist as a permanent form of government. A democracy will continue to exist up until the time that voters discover that they can vote themselves generous gifts from the public treasury. From that moment on, the majority always votes for the candidates who promise the most benefits from the public treasury, with the result that every democracy will finally collapse over loose fiscal policy, (which is) always followed by a dictatorship.”

“The average age of the world’s greatest civilizations from the beginning of history, has been about 200 years. During those 200 years, these nations always progressed through the following sequence:

From bondage to spiritual faith;
From spiritual faith to great courage;
From courage to liberty;
From liberty to abundance;
From abundance to complacency;
From complacency to apathy;
From apathy to dependence;
From dependence back into bondage.”

Thank you, Commander (rtd) Thaya Param for sending this to me. Let  our intelligent, clear sighted and articulate readers and commenters decide at what stage Malaysia is in, given the introduction of draconian laws like the Prevention of Terrorism Act,  the Sedition Act and Official Secrets Act, a subdued and muzzled media and subjugated Judiciary, a rubber stamp Parliament, rampant corruption, religious bigotry and racist politics with toxic institutions like the Police, Malaysian Anti-Corruption Commission and Attorney-General’s Office, and  an incompetent civil service.

Worst of all, we have a mismanaged economy by a dishonest, lying, corrupt  and weak political leadership aided and abetted by fawning and self serving politicians of all stripes and colours. Is Malaysia still a democracy? –Din Merican in Phnom Penh.

Malaysian Bar Council initiates Campaign to Repeal POTA

by James Sivalingam@www.freemalaysiatoday.com

Regressive, unnecessary and open for abuse, like the old Internal Security Act, makes judges into rubber stamps’.

Zunar in POTAThe Bar Council began a national campaign today (May 16) to repeal the Prevention of Terrorism Act (POTA), currently awaiting royal assent, calling it “regressive, unnecessary, as well open to abuse” much like the now-repealed Internal Security Act.

Bar Council President, Steven Thiru said the law reduced the judiciary into being a mere rubber stamp or, worse, completely bypasses it. Misuse of the ISA had scarred the country for many years, he said.

Speaking at a forum to begin the repeal campaign, Thiru said the ISA, the terrorism act and recent amendments to the Sedition Act were abhorrent to the rule of law and made major encroachments on and eroded the independence of the Judiciary.

Steven ThiruHe said Malaysia had spoken in favour of a United Nations resolution which called for recognition of human rights, fundamental freedoms and the rule of law as being complementary and mutually reinforcing with effective counter-terrorism measures. However, Malaysia had failed to its obligation to stand its pledge and had taken a short cut by legislating the Prevention of Terrorism Act without learning from the experiences of other nations on the forefront on global counter-terrorism.

“When you take short-cuts on rule of law, when you breach your obligations under the law, you do not make advances in the fight against terrorism. Indeed, you radicalise more people into terrorism. You make it worse,” Thiru said.

He acknowledged that counter-terrorism was a complex issue with no right answer, but felt judicial scrutiny and pota1oversight were crucial in order for far-reaching laws such as POTA not to be abused.

The law contained broad language and definition, and an ambiguous reach, Thiru said, open to be used on everyone and anyone; ministerial assurances that it would not be abused were simply not sufficient.

“Good men come and go. The law remains. It is the law that has to be clear. Having good men to look at the law is a bonus”.

Thiru said the Bar council is obliged to stand up for the independence of the Jjudiciary, in being placed between the might of the Executive and the common man on the street. “If the Bar is relegated, or the hands of the Bar tied in representation, then the men and women on the street are left without protection,” he said.

Malaysia–End of Freedom of Speech


May 16, 2015

Phnom Penh by The Mekong

Malaysia–End of Freedom of Speech

Prime Minister Najib Razak has chosen to go back to the politics of race and religion and use draconian laws to suppress political opposition and people’s dissent. You can expect more as Najib struggles to survive politically. As Prime Minister, he has let the nation down by flip-flopping on policy,  and by pandering to the demands of extremist elements in his party and ultra nationalist NGOs like PERKASA and ISMA. The evidence is clear and that is Malaysia in heading towards being a failed state headed by a weak leader who is no longer trusted by a majority of Malaysians.

najib-n-obamajpgObama and his Malaysian Poodle–TPPA Agenda

What surprises me is that the Obama Administration has chosen to ignore this reality because Najib has become their poodle. The United States, the so-called champion of democracy, freedom and justice, remains muted in its criticisms of the UMNO-Barisan Nasional regime. As someone who was educated in the United States and is an admirer of the sterling qualities of the American people including their generosity,I can understand what is happening because the politics in Washington  DC which is driven by corporate vested interests and strong lobby groups does not necessarily represent the feelings and views of Americans.

Malaysia without AnwarThe Obama Administration knows that Malaysia is no longer a moderate Muslim country; yet it chooses to ignore the views of the Malaysian people  as depicted in the Al-Jazeera video (below). Najib’s Coalition of the Moderates is a hoax. The country is being led by thieves of state (kleptocrats) who can act with impunity. This is because our institutions of governance has been destroyed by UMNO and its complicit partners, which has ruled Malaysia for nearly 60 years. –Din Merican

Democracy at work in the United Kingdom


May 11, 2015

 Phnom Penh by The Mekong

COMMENT:  Public duty? Yes, in the United Kingdom, the cradle of democracy. Why? Because politiciansDin Merican lastest there treat politics as a call to public service. Men and women  who enter politics are individuals with outstanding credentials and generally clean record of service to Britons. They are part of the system that is open, transparent and accountable. The 2015 British Elections is shining example of true democracy at work. It was conducted peacefully and there is no talk of rigging and cheating. Clean and fair elections  was the order of the day.

In Malaysia, politics in recent years has become an opportunity for politicians to further their self interest. We no longer have leaders like Tunku Abdul Rahman, Tun Abdul Razak and Tun Dr. Ismail Abdul Rahman, Tun Tan Siew Sin, Tun Sambanthan and Tun Hussein Onn, who gave their lives in the service of the country. Today, our politicians are thieves of state, to whom the idea of public duty and national service is not their ethos.

Tunku, Razak, IsmailWe started out as a democracy with a  strong constitution which treats all citizens as equals under the law, guarantees freedom of  assembly, expression and speech, freedom of religion,  and clear separation of power between the Executive, the Legislature and the Judiciary. The British left us with an outstanding civil service , an education system which was second to none, a judiciary system that we all can be proud of , and a dedicated Police Force. But the British were no angels. They also left with draconian laws like the Internal Security Act and the Sedition Act.  But democratic politics was their legacy.

After nearly 58 years of UMNO-Barisan, our democratic system of governance has broken down and is in need of urgent reform. Over the last 6 years, we have seen our fundamental freedoms taken away from us. Our Parliament is a rubber stamp; our judiciary is compromised; our civil service is mediocre and incompetent led by a bunch of apple polishers;  our Police Force  which is headed by an Inspector General of Police treats us like enemies of state, not as taxpayers and citizens who should be protected from criminals; our fiscal management is in a total mess because we have a Finance Minister who regards our national coffers as if it were his own and mismanages our economy.  We  have rampant corruption and abuses of power.

As a result, we are far being a democracy as originally envisioned  by our founding fathers. In stead, we have become a nation divided by class, race and religion with a Prime Minister who answers to no one and who acts with impunity and in defiance of what you and I think of him and his Cabinet of incompetent, inept, mute and self serving Ministers. In short, we have become a racist and theocratic state led by men and women who no longer uphold the traditions of public duty–Din Merican

Democracy at work in the United Kingdom

by Mike Tan @www. the antdaily.com.my
The UK elections are over, and the Conservatives, under David Cameron, won an overwhelming 331 seats, its first such victory since 1992.
Ed Miliband, Nick Clegg, David Farage

While David Cameron takes his time to select his Cabinet, his rivals lost no time in taking responsibility for their parties’ poor showing in the elections. Three UK political party leaders – Ed Miliband of the Labour Party, Nick Clegg of the Liberal Democrats and Nigel Farage of the UK Independent Party (picture above) – all resigned after their parties suffered big losses in the election.

All four men may have different political perspectives and ambitions, but they share one thing in common – the wisdom of knowing when to step down when their time is up. They neither hesitated nor shied from their final act of duty as leaders of a political party, announcing their resignations the day after the results were known.

They leave with the knowledge that their parties will continue with the political struggle, that there will be others who will take their place and helm the respective parties in the future. Their parties are full of ambitious and knowledgeable politicians, not mere sycophants and yes-men. This is why democracy is alive and well in UK.

Contrast that with MCA president Liow Tiong Lai, who recently announced that MCA will work hard to reform the party. “MCA needs to work harder in the future. We need to effectively show the party’s role as part of the government to gain more support from the Chinese community,” he said.

It is no secret that support for MCA is at an all-time low, with the once-mighty party now only having seven parliamentary seats and 11 state assemblymen. MCA had suffered consecutive defeats in the previous two general elections, and is close to becoming irrelevant in the eyes of the Malaysian public.

To be fair, MCA was helmed by Dr Chua Soi Lek at that time, who had declared that MCA should not accept any government posts following its worst electoral defeat ever. In doing so, Chua did something no Malaysian political leader had ever done before.

Perhaps Malaysian politicians feel they have earned the right to ministerial positions in other ways than a good showing in elections, unlike their counterparts in the UK.

Chua ultimately made way for Liow in December 2013.Liow quickly reversed Chua’s decision, taking the much-coveted Transport Minister’s post for himself. Chua’s son, Chua Tee Yong, became deputy finance minister as well. Yet MCA remains as it always has been – doing the same thing, or rather, not doing anything at all, if you listen to its critics.

Liow has yet to lead MCA as president into a general election, and thus he remains untested. His track record thus far, however, has not been good.Under his leadership, MCA avoided contesting the Bukit Gelugor by-election and lost the Kajang by-election, both held in 2014. In all honestly, MCA had little if no chance of winning, so it made the right move to avoid contesting against DAP, but had to put up a fight in Kajang, where it predictably lost.

Liow would argue that he and MCA have not been given a chance to prove themselves in a general election. He might even claim that his call for reform will be the first step to a drastic change in MCA and ultimately lead to Chinese voters supporting the party once again.

It’s true, Liow hasn’t proven himself yet. But rest assured, nothing will stop him from taking a ministerial position after the next general election, unless he is forced to step down, like his predecessor.

In UK, political party leaders lead their parties to victory before becoming ministers. In Malaysia, they become ministers before leading their party into elections, and even if their parties suffer humiliating defeats.

That is the difference between the democracy practised there and what goes on here in our country. And in a way, this somewhat explains why Malaysia will never ever be great like Great Britain. – The Ant Daily

Attorney-General A Gani Patail: Time to Go


May 3, 2015

Phnom Penh by The Mekong

Attorney-General A Gani Patail: Time to Go, says UMNO-owned Mingguan Malaysia

http://www.themalaymailonline.com/malaysia/article/a-g-no-longer-up-to-the-burden-awang-selamat-claims

Gani Patail 2Under-fire Tan Sri Abdul Gani Patail likely no longer wants the “burden” of being Malaysia’s Attorney-General, UMNO-owned Mingguan Malaysia said today citing his allegedly poor health.

Saying that Gani was again facing a new wave of criticism over past failures to prosecute cases of sedition involving insults against Islam and the royalty, the editors writing under the Awang Selamat pseudonym said the A-G was being viewed as an obstacle to demands for stern action.

“That is the general perception. But sometimes Awang sympathises with the A-G, Gani Patail who is always being bashed for the weakness of others. “Rumour has it that Gani is on leave due to health issues… Personally, Awang feels Gani should not be further burdened with this heavy and challenging duty. His commitment and service for the past 12 years is undeniable,” they wrote.

The paper added that Gani’s contract is due to expire soon, and said he was not likely to want to remain in the post even if offered an extension as he is at a point in life when family and health are of greater importance.

“Let someone new navigate the challenge. Who will this be?”

Selective Prosecution

Gani is regularly accused of selective prosecution from both sides of the political divide. Pro-establishment voices claim he is not stern enough with incidents involving perceived insults against the Malays, Muslims and the Malay Rulers. Opposition leaders in turn accuse him of intentionally targeting them as well as dissenters against the government while ignoring provocation against non-Muslims.

Gani came under intense criticism last year after it was revealed that his office chose not to prosecute PERKASA President Datuk Ibrahim Ali for the latter’s call for Muslims to burn copies of the Bible, purportedly as the Malay Rights leader was acting in defence of Islam.

POTA violating laws, rights in terrorism fight


April 12, 2015

POTA violating laws, rights in terrorism fight

http://www.malaysiakini.com

COMMENT: The Malaysian Bar, the Sabah Law Association, and the Advocates’ Association of Sarawak vehemently oppose all forms of detention without trial, and view the passage into law of the Prevention of Terrorism Act 2015 (“Pota”) in the early hours of 7 April 2015 with grave concern.

POTA is clearly an attempt by the government to resurrect the Internal Security Act 1960 (“ISA”), Restricted Residence Act 1933, Banishment Act 1959, and Emergency (Public Order and Prevention of Crime) Ordinance 1969.

POTA is objectionable, ignores due process, infringes upon our constitutional rights, and is repugnant to the rule of law.

POTA brings about the re-emergence of detention without trial laws, the limiting or denial of legal representation, and the ouster of the jurisdiction of the courts.

Ill-defined targets

POTA is unclear in its scope inasmuch as it is directed at an ill-defined group of persons. It is purportedly directed at persons who are “engaged in the commission or support of terrorist acts involving listed terrorist organisations in a foreign country or any part of a foreign country”.

However, words like “engaged”, “commission”, “support” and “involving” have not been defined in POTA.  Thus, the reach of the legislation is extremely wide and lends itself to abuse.

It opens up the real possibility that almost anyone could be targeted under POTA. It cannot be conveniently seen as simply targeting “terrorists”.

We have seen how the ISA, which had been meant to deal with the communist insurgency, was used to stifle political dissent and imprison political opponents. POTA gives false hope in the exclusion of “political belief and political activity” as a ground for detention.

Organisations not registered as political parties under the Societies Act 1966, or not registered under the Societies Act 1966 at all, may be subjected to the wide powers of POTA.

We also note that in the past, politicians and political activists had been detained under the ISA for activities that were nonetheless viewed as prejudicial to national security or public order.

We fear POTA will be similarly abused as a tool for political oppression.

Executive taking over judicial powers

The Malaysian Bar, the Sabah Law Association and the Advocates’ Association of Sarawak are also very troubled by the encroachment into judicial discretion in criminal matters.

POTA, a person can initially be remanded for investigative detention for a maximum of 60 days. A magistrate has no discretion to refuse a request for remand, and is reduced to rubber-stamping requests by the police and Public Prosecutor.

Likewise, a Sessions Court Judge has no discretion to refuse any application by the public prosecutor to order that an accused person be attached with an electronic monitoring device.  Discretionary powers that exist to enable the judiciary to confront the excesses of the executive are now effectively extinguished.

The intrusion on judicial discretion permitted by Pota is serious, as it is tantamount to vesting judicial power in the executive.  We remind the government that under our constitutional scheme, judicial power is vested in the Judiciary, and the vesting of judicial powers in any other body is unconstitutional.

Rights of arrested denied

Further, there is no provision for the person remanded to be informed of the grounds of arrest, nor is there any guarantee that legal representation will be allowed. This is because the police are prone to applying the exclusion under section 28A(8) of the Criminal Procedure Code to deny access to legal representation.

This is another serious matter, as access to legal representation for persons facing serious allegation of terrorism and the prospect of loss of liberty should not be denied.

Pota also confers draconian powers on the inquiry officer – who is not expressly defined in Pota – tasked with investigating the allegations against the accused person and presenting the evidence to the prevention of terrorism board (“POTB”).  In this regard the normal rules of evidence and criminal procedure are excluded, and the inquiry officer may procure evidence by any means.

The inquiry officer then presents his/her report to POTB and there is no provision for POTB to inquire into the report or require further investigation. POTB has extensive powers – it may grant a detention order of up to two years, or a restricted residence order of up to five years.

These periods of detention or restricted residence may be subsequently renewed for an indeterminate period.

These orders are to be made by POTB without due process, inasmuch as the accused person is denied the right to make any legal representation to the POTB.

Secret hearings

Next, the argument that POTA cannot be compared with the ISA because it is no longer the Minister of Home Affairs who decides on the detention or restriction order, is specious.

Members of the POTB are appointed by the Yang di-Pertuan Agong (but following convention, upon the advice of the government) and can be dismissed by the Yang di-Pertuan Agong at any time.

This absence of security of tenure undermines whatever independence POTB purports to have.  Only the chairman is required to have legal experience, and there is no provision that he or she must be, or must be qualified to be, a judge. We have seen from the practice of the Prevention of Crime Act 1959 that the names of the members of the prevention of crime board have not been made public.

It is likely to be no different for members of POTB. The fact that POTB hearings will not be held in public means, in effect, that POTA will allow secret hearings by a secret panel. There will be no transparency.

One of the most offensive aspects of POTA is its absolute ouster of judicial scrutiny. No judicial review of the detention order or the restriction order is possible. This is an affront to the Judiciary and is further contrary to article 8 of the federal constitution, which guarantees equality and equal protection before the law.

The small concession that courts can review procedural compliance is illusory in practice since POTB determines its own procedures.

Violating laws to fight terrorism

The Malaysian Bar, the Sabah Law Association and the Advocates’ Association of Sarawak take the view that the answer to the fight against terrorism does not lie in oppressive laws that violate our adherence to the rule of law, due process and constitutional safeguards.

The war against terrorism requires the strengthening of our ability to detect, gather evidence, investigate and deal with the threat of terrorism in a holistic manner.  We must eschew shortcuts or quick fixes that seemingly provide short-term solutions but no long-term result.

We are aware of the evolving threat of global terrorism and the efforts by the government to adapt in order to counter it domestically.

We are supportive of these efforts, but maintain that the war on terrorism must be won without compromising the rule of law, human rights and principles of natural justice.

The Malaysian Bar, the Sabah Law Association and the Advocates’ Association of Sarawak reject this attempt by the government to revive detention without trial, repeated renewals of such detention, the ouster of the jurisdiction of the judiciary, and the limitation or denial of the rights of suspected persons to due process of law.

We urge the government to withdraw POTA from being tabled in the Dewan Negara.


The statement is jointly issued by STEVEN THIRU, president of the Malaysian Bar, GBB NANDY @ GAANESH, president of the Sabah Law Association and LEONARD SHIM of the Advocates’ Association of Sarawak.

Attorney-General Abdul Gani Patail interfered in MACC work


April 9, 2015

Attorney-General Abdul Gani Patail interfered in MACC work

by Hafiz Yatim@www.malaysiakini.com

Attorney-General Abdul Gani Patail barred the Malaysian Anti-Corruption Commission (MACC) from stopping its prosecution against lawyer Rosli Dahlan in the ‘Copgate affair’.

TS Robert PhangThis was revealed in the High Court in Kuala Lumpur today by former MACC Corruption Prevention and Consultative panel member Robert Phang, who said this was related to him by MACC Chief Commissioner Abu Kassim Mohamed.

Phang said Abu Kassim told him this during his tenure as a Corruption Prevention and Consultative panel member. He was on the panel from February 24, 2009, till January 27, 2011.

The witness was testifying in the RM50 million suit filed by Rosli against MACC for assault and wrongful detention. Phang said Rosli had sent him a letter dated Nov 11, 2010, concerning a charge brought against him by the MACC in the sessions court in Kuala Lumpur in 2007.

“I raised this with Abu Kassim  who informed me that the MACC had no case against Rosli in the Abu Kassimabove prosecution, but he was prevented by the public prosecutor, who is Attorney-General Gani, from discontinuing with the prosecution.

“This is despite (MACC) being aware that the case would result in an acquittal.

“I believe there has been abuse of power, selective prosecution, abuse of prosecutorial discretion, malicious prosecution and prosecutorial misconduct by Gani in the handling of the case against Rosli,” Phang said in reply to questions by Rosli’s counsel Chethan Jethwani. He also produced a statutory declaration dated August16, 2012, describing the meeting to that effect.

No minutes from the MACC panel

MACC’s lawyer Cecil Abraham, formerly an Operations Review panel member of the MACC, asked Phang why there were no minutes from the panel to prove this. However, Phang maintained that the meeting with Abu Kassim really did take place and he reiterated what the MACC Chief told him.

On Monday, Utusan Malaysia made an apology in open court to Rosli for its defamatory article, after the lawyer filed the RM50 million suit against the MACC and the UMNO-owned daily.

RDahlanRosli (right) was arrested at his office, two days before Hari Raya in 2007, for allegedly not abiding by the MACC’s notice to declare his assets, which he described as vague.

He was handcuffed tightly in front of his partners, and produced in court on the even of Hari Raya, and a newspaper report said the charge against Rosli was related to an investigation into a RM27 million cop.

Rosli claimed that the action against him came after he helped draft the affidavits for former Deputy Home Minister Johari Baharom, former Commercial Crime Investigation Department director Ramli Yusuf and six of his men in the arrest of triad kingpin Goh Cheng Poh.

Goh or Tengku Goh, was caught by Ramli’s men in 2007, following a blitzkrieg by the government against the illegal money laundering syndicate and he was placed under restricted residence in Gua Musang, Kelantan.

Goh filed a habeas corpus application, which was backed by the then Inspector-General of Police Musa Hassan. Following the filing of the habeas corpus application, the Attorney-General’s Chambers did not want to draft the affidavit in reply, as required and is normally done, resulting in Rosli to be roped in by Ramli to draft it.

Subsequently, Rosli was charged in the sessions court but was acquitted without his defence being called. Ramli, who the authorities claimed was the “RM27 million cop” was also charged in 2007 but was acquitted.

As a result of this, Rosli and Ramli filed separate suits against Gani for malicious prosecution. Gani tried to strike out the suits, in the High Court and then in the Court of Appeal, and failed both times.

Rosli’s suit against the MACC continues tomorrow before Justice Su Geok Yiam, with a former Deputy Public Prosecutor expected to testify.