Wednesday, March 29, 2017

Suhakam: Beatings may have caused detainee's death, prosecute culprits

Published     Updated
The Malaysian Human Rights Commission's (Suhakam) probe into the death of S Balamurugan at the North Klang district police headquarters on Feb 7 found that he was tortured and detained illegally.

Suhakam said it was informed that the victim, who was arrested with two other suspects on Feb 6, were beaten up by the police between 7.30pm and 9.30pm at Bandar Baru Klang police station before being transferred to the district headquarters.

The commission said Balamurugan, 44, was unable to walk when he was moved from the North Klang district police headquarters to the Shah Alam centralised lock up at around 4.10am the following morning.

Suhakam noted at 10am that day, the Klang Magistrate's Court had noticed Balamurugan's injuries and refused remand, ordering the police to send him to the hospital instead.

However, this was ignored by the police who continued to unlawfully detain Balamurugan beyond the 24-hour period allowed to hold him.

Suhakam had interviewed the magistrate on Feb 23, 2017, and was informed that the latter's face and eyes were swollen.

“He was unable to sit up, stand or hold his head up when his name was called in court,” it added.

Although the police had the opportunity to take the deceased to the hospital, Suhakam said, they failed to do so and took him back to the North Klang district police headquarters at about 1.15pm.

"Suhakam was informed that the deceased was shivering again at this point but he was not given any medical attention.

"By approximately 6.30pm by which time his detention became unlawful, Balamurugan's condition had deteriorated severely to the extent that he had no control over his urine,” it added.

At around 11.30pm, Balamurugan was found unconscious and presumably dead by the investigating officer.

Victim had multiple bruises

Two post-mortem procedures were conducted on the deceased.

Hospital Tuanku Ampuan Rahimah Klang concluded that the cause of death was coronary artery disease while Hospital Kuala Lumpur attributed it to coronary artery disease and blunt force trauma.

Suhakam noted that while both pathologists concluded that the deceased was suffering from a severe heart condition, their medical opinion was that the injuries could have triggered a heart attack or worsened his heart condition, leading to death.

The commission said Balamurugan was allegedly hit on the ears, beaten on his feet and legs as well as punched and kicked in the chest.

"It is Suhakam's view that the allegations of ill-treatment and torture corroborate the statements by both pathologists.

"The deceased had, among others, bruises and swelling on his eyes, a large bruise on his chest below his right nipple, swelling on his right ear, lacerations on his ears, injuries on his right chest muscle, blood clots on his right temple, back injuries and severe muscular injuries to his feet and ankles.

"The second pathologist indicated that he also found that the deceased had obvious bruises on his knees, fingers, back of his left lower leg, lower back and the back of his thighs," it said.

The conclusion released today was a culmination of a Suhakam probe involving 43 witnesses since Feb 10.

Suhakam said it identified numerous systemic failures on the part of the police in the treatment of detainees.

The commission also expressed concern over the manner in which two other suspects were detained with Balamurugan as they were under the age of 18.

"While the police must observe certain legal rights whenever they arrest or detain a child suspect, Suhakam’s investigation revealed that the police may have been in breach of Section 85 of the Child Act 2001 that stipulates appropriate arrangements shall be made to prevent a child while being detained in a police station from associating with an adult who is charged with an offence," it said.
Suhakam called on the authorities to investigate and prosecute the police officers responsible for the illegal detention and ill-treatment/torture of the victim.
The commission said that internal disciplinary proceedings and criminal proceedings should also be taken against those who violated the court order.

Suhakam added that the police must ensure that detention is done lawfully and investigations should be extended to similar incidences of abuse.

The commission also reiterated its recommendation to have a medical team on hand at police lock-ups.


28 MARCH 2017

I refer to the Comment by Sin Chew Daily that is reproduced in Free Malaysia Today as ‘Pivotal role for Sabah, Sarawak MPs over Hadi’s bill’. It has been suggested that the government’s version of RUU355 will only be applicable to Muslims in West Malaysia, in an effort to win over the MPs from Sabah and Sarawak, who had strongly objected to the bill.

If this is the intention of the government, it shows the absurdity of the whole situation and makes it absolutely clear now that their taking over of the bill from PAS and trying to push it through was politically motivated. Even if the government proposes to exempt Sabah and Sarawak from the Bill, do not expect us to breathe a sigh of relief and allow the bill to pass without a fight.

This short-sighted ‘solution’ would prove that the BN/UMNO government places no importance on inclusiveness and equality, and is unconcerned that this move will divide the country into two, each with its own legal system. This will be in violation of Article 8 of the Federal Constitution, which must come into play now, more than ever before.

Article 8(1) states: All persons are equal before the law and entitled to the equal protection of the law. Article 8(2) provides: Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth, gender in any law…’

How is it possible that the government could even consider a Bill that offends Article 8 in almost every respect? MPs from Sabah and Sarawak must NOT be lured into believing that this is a good way out for them from being responsible and accountable for their actions. There is no escaping their sworn duty to preserve, protect and defend the Constitution from being violated by the BN/UMNO government.

This Bill in its amended form will be unfair and unjust to our fellow citizens in West Malaysia, and our MPs must take cognizance of the fact that their duty to the citizens is not confined to those in their own constituencies, but extends to all Malaysians.

Furthermore, many Sarawakians and Sabahans reside and work in West Malaysia. It is not practical or realistic that they will be exempted from this oppressive law. Our MPs must also bear this in mind.

If we do not assert every citizen’s rights to equality under Article 8 now, and go along with the blinkered and misguided views that we can somehow be shielded from RUU355, once the law is passed, the proponents may pounce on Article 8 and insist that the law which we thought we were exempted from, should apply equally to us.

MPs from Sabah and Sarawak must stand firm and not play into the hands of those that would use us as pawns in their political games. This is a crucial test for our MPs – we have the opportunity to make a difference and to have a say in how we want Malaysia to be. The direction the country is has been heading is certainly not what our forefathers signed up for. Let us show the BN/UMNO government what we are made of.

Baru Bian
Chairman, KEADILAN Sarawak / ADUN N81 Ba’ Kelalan

Tuesday, March 28, 2017


27 MARCH 2017

I wholeheartedly agree with the call by human rights advocates that capital punishment be removed for all crimes currently punishable by death.

The imposition of the death penalty was believed to act as a deterrent against crime but there is no conclusive evidence that capital punishment is an effective deterrent. Those who are about to commit crimes do not stop and sit down to weigh the consequences if they are caught, especially those who commit murder. I believe most people do not even know what the penalties are for various crimes, except for drug trafficking, as that is well-publicised, but even that does not have any deterrent effect, judging from the unabating illegal drug activities in this country.

Capital punishment does not give the offender the chance to be rehabilitated, but I believe that people can change, and there are many offenders who do change. Whether it is through spiritual input, professional counselling or even the ageing process, many former criminals have changed their attitudes towards crime and emerged as reformed individuals. There is ample evidence of such transformations and I believe that we should not give up on anyone, even hard-core criminals.

There is also the human rights aspect, that executing people runs contrary to the principle of holding high regard for the sanctity of human life. I do not believe that we have the right to end someone else’s life, and executions merely serve to label us as barbaric while having no deterrent effect on crime.

Most horrifying of all, once the death sentence is carried out, it is too late to reverse the decision or to compensate the executed if it is later discovered that there has been a miscarriage of justice. This is not merely a hypothetical situation, as there are documented cases of people being executed for crimes they did not commit.

Researchers in the US in 2014 found that that over 4% of death row inmates were innocent, calling this a conservative estimate. If this is applied to the number of death row inmates in Malaysia, there could be 32 people languishing in prison waiting to be executed for crimes they are innocent of. This is not inconceivable, given the pressures and limitations that our criminal justice system operates under. The idea that the innocent could be executed is so abhorrent that of itself, that would be reason enough to abolish the death penalty.

I agree with Suara Rakyat Malaysia director Sevan Doraisamy that the death penalty is not a solution to crime and should be abolished.

Baru Bian
Chairman, KEADILAN Sarawak / ADUN N81 Ba’ Kelalan

Monday, March 27, 2017

Ahmad Fairuz’s stand on Islamic law misplaced, says retired judge

 | March 26, 2017

Gopal Sri Ram says ex-CJ overlooked a Supreme Court ruling in 1988 that held a law inconsistent with Islamic scriptures to be valid because Malaysia has a secular constitution.

PETALING JAYA: Former chief justice Ahmad Fairuz Abdul Halim has misread the Federal Constitution and ignored a judicial precedent in claiming that Islamic law is above civil legislations, a retired judge said today.

Former Federal Court judge Gopal Sri Ram said Fairuz should not read in isolation a single provision – Article 3(1) which states that Islam is the religion of the Federation – to assert Islamic law’s applicability in Malaysia.

He said Article 4(1) made it clear that any law that came into force after Merdeka Day on Aug 31, 1957 and which was inconsistent with the supreme law of the land (the Constitution) shall be invalid.

He said it was important to note that Article 4(1) says “inconsistent with this constitution” and not “inconsistent with any provision of this constitution”.

“Therefore, Article 3(1) which says that Islam shall be the religion of the Federation is irrelevant when testing the constitutional validity of a post-Merdeka law,” said Sri Ram.

He also said it was most regrettable that Fairuz had conveniently overlooked the five-man bench ruling of the 1988 Supreme Court case of Che Omar versus Che Soh.

The apex court had then held that a law inconsistent with Islamic scriptures was valid because Malaysia has a secular constitution.

Sri Ram said this in response to a lecture by Fairuz titled ‘Islam as the Law of the Land’ where he interpreted the constitution in a manner that makes Islamic law the second most supreme legislation in Malaysia.

Fairuz, who in 2008 was implicated by the Royal Commission of Inquiry in the V K Lingam video scandal in judicial fixings, said civil laws that went against Islamic laws’ main sources – the Al-Quran and Sunnah – would be unconstitutional.

He said Islam was a complete way of life that included all aspects of human activity, including judiciary, politics, and economy.

As such, Articles 3 and 4 must be read together to make Islamic law the second most supreme legislation after the constitution, he had said.

Fairuz had led the majority ruling in the Lina Joy conversion case in the Federal Court in 2007.

Lina, a Malay-Muslim, wanted to embrace Christianity to marry her boyfriend, but the National Registration Department (NRD) insisted she produce a certificate from the shariah court, which she did not possess.

Her lawyers had argued that the NRD only needed to consider the baptism certificate from the church to facilitate the change in religious status. The Federal Court rejected her appeal and ruled that “a person who wanted to renounce his/her religion must do so according to existing laws or practices of the particular religion”.

Sri Ram said Ahmad Fairuz was inconsistent in Lina’s case as he did not apply the legal principle when delivering a judgment as a High Court judge in the case of Haji Ismail bin Suppiah v Ketua Pengarah Pendaftaran Negara .

In that case, he struck down the action of the NRD that required Ismail to obtain the consent of the religious department of Johor for the purpose of processing his application to effect a change of his name from an Islamic to a non-Islamic name.

“However, no written judgment was delivered by Ahmad Fairuz in that case. It is obvious that he has also forgotten the stand he took where he refused to give precedence to Islamic law,” Sri Ram added.

Sri Ram said Lina’s case had nothing to do with constitutional law or the application of Islamic law and the former chief justice’s stand in the case was irrelevant and not binding in a court of law.

~ Free Malaysia Today

DUN Answers November 2016

DUN Answer November 2016


25 MARCH 2017

The statement by the ex CJ that any laws which run contrary to Islamic scriptures are null and void is completely without basis. His statement is not supported by any compelling legal argument but on his feeling – it is reported that he said ‘I feel anything which is in contradiction to Islam is unconstitutional’. His simplistic misinterpretation of Article 3 of the Federal Constitution is a contradiction of Article 4, which he conveniently ignores.

As an ex-CJ, he should know that Malaysia was formed to be a secular country and remains a secular country. Article 3 of the Federal Constitution does not import the meaning that Shariah is the supreme law of Malaysia but on the contrary there is strong legal and academic opinion that Malaysia is in fact a secular country. This is recognized by the Supreme Court in Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55, and the ex-CJ should be very aware of this case.

Article 4 of the Constitution declares it simply: “This Constitution is the supreme law of the Federation…”. As said by Raja Azlan Shah in 2003: “ This essential feature of the Federal Constitution ensures that the social contract between the various races of our country embodied in the independence Constitution of 1957 is safeguarded and forever enures to the Malaysian people as a whole, for their benefit.” The Federal Constitution - and not the Syariah or Hudud - is the supreme law of the Federation.

Furthermore, the founding father, BAPA MALAYSIA Tuanku Abdul Rahman stated it plainly in Parliament: ‘I would like to make it clear that this country is not an Islamic State as it is generally understood, we merely provided that Islam shall be the official religion of the State’ [Hansard, 1 May 1958].

Does Ahmad Fairuz also claim to speak for Sarawak? For us, the stand is crystal clear. The report of the Cobbold Commission, the Inter-Governmental Committee Report and the 1963 Malaysia Agreement reflect the people’s wishes that there should be no official religion for Sarawak. One of the safeguards in the 18-Point agreement is that ‘While there was no objection to Islam being the national religion of Malaysia there should be no State religion in Sarawak, and the provisions relating to Islam in the present Constitution of Malaya should not apply to Sarawak’.

The importance placed on Sarawak having no official religion and on our freedom of religion is reflected in these points being the first of the 18/20 points in the Malaysia Agreement, and stated clearly in the Cobbold Report. Furthermore, our forefathers had signed the Malaysia Agreement with a secular state, and that must remain so.

According to Constitutional lawyer Tommy Thomas, ‘in addition to enjoying constitutional status, the 20 points also have international law status as being part of treaty obligations between sovereign nations. In consequence, if any provision of the 20 points is breached, the United Kingdom can, in law, take up the matter; whether, as a political fact, its government does so is an altogether different matter. Further, such a breach may be justiciable in the Courts of England and Malaysia.’ [The Social Contract :
Malaysia’s Constitutional Covenant; Paper presented at Malaysian Law Conference, KL, 2007.]

My own people, the 5200 Muruts (as we were called then) in the 1960 census were recorded as saying they were very happy and peaceful as they were, and fearful of the effects of the British leaving Sarawak.  It seems their fears were justified, in view of the push by some groups in Malaya for hudud to be implemented.

Ahmad Fairuz’s further remarks that Muslims do not care about equality and are happy to have hudud implemented in this country is also completely baseless. Does he have any research to back up his statement? How can he claim to speak for all Muslims in the country, including Sarawakian Muslims? The weight of his remark is about the same as that of someone’s insistence that the earth is flat.

It is indeed unfortunate that we have an ex-CJ seemingly learned in the law yet making such a gross error in his interpretation of our Constitution. Having had a much criticized and undistinguished tenure as CJ, and a royal commission of inquiry having concluded in 2008 that he was the judge engaged in conversation with VK Lingam over judicial fixing, Ahmad Fairuz should be the last person to advocate for the implementation of hudud law in Malaysia.

Baru Bian
Chairman, KEADILAN Sarawak / N81 Ba’ Kelalan


26 MARCH 2017

The people of Lawas are constantly having to put up with dangerous roads – sections of roads keep falling into disrepair at regular intervals.

This time, it is a 7-km stretch of the Long Tuma to Long Ugui road which is not far from Lawas town. Once it took 10 minutes to drive to Lawas town, but the road has deteriorated so much that it now takes 30 minutes. The surface of the road is broken up in places and there are numerous potholes along the stretch. This makes driving on the road hazardous, especially at night when drivers cannot see clearly.

Sarawak is finally seeing some progress on the Pan Borneo Highway, but smaller roads like this must not be neglected. This is part of the Long Sebangan to Long Sukang road, and is therefore a much-used road. I urge the JKR to carry out repairs quickly and to have on-going maintenance of all our roads.

Baru Bian
ADUN N81 Ba’ Kelalan

Friday, March 24, 2017

Islam for Muslims or Islam for all?

S Thayaparan     Published     Updated
“Be not intimidated... nor suffer yourselves to be wheedled out of your liberties by any pretense of politeness, delicacy or decency. These, as they are often used, are but three different names for hypocrisy, chicanery and cowardice.”
- John Adams

I was sincerely trying not to write another article on Islam. Every time I write an article on Islam I get the usual hate mail from folks who accuse me of being anti-Islam and anti-Malay. The people who email me are not bad people. Far from it. If you define “good” as opposing Umno and corruption, then these folks fall into the category of “good” as defined by oppositional forces. Personally, I think this is a crappy definition of good but it takes all kinds, right?

Lawyer Aidil Khalid said something in a debate organised by Bebas recently that demonstrates why this country is ultimately doomed. Forget about the fact that non-Muslims are losing the demographic game but this idea of co-existence and mutual gain is anathema to mainstream Islam. If people wonder why when most people migrate they do not want to go to places where there is a Muslim majority, then you have to look no further than the idea espoused by Aidil Khalid.

"And we do not even want to impose it (syariah law) on the non-Muslims. It is only for Muslims," Aidil said. On the face of it sounds reasonable. However, is it really? What these Islamists are doing, and they do this everywhere, is make a clear distinction between "us" and "them". They are proud of the distinction they attempt to make but get all butt hurt when Western governments attempt to do the same.

Let me be very clear. There is enough empirical evidence that laws solely meant for Muslims in this country have a direct impact on non-Muslims hence this separate but equal canard is just another example of how mainstream Islam in this country always attempts to subvert democratic principles in the name of Muslim solidarity and hegemonic power.

Some folks got extremely upset when Aidil claimed that Muslims have not complained when they have been subjected to civil laws which have a “Christian” influence. While this statement is inaccurate for many reasons, the intent behind the claim points to an anti-Western bias rooted in Saudi Wahhabism and drenched in hypocrisy.

Let us unpack this statement, adding a couple of other points that this young lawyer made. Here are the three points he made:
1) Muslims have not complained about the Christian-influenced civil laws.
2) That interpretation of the Federal Constitution should be based on our traditions.
3) The right of states to “debate, enact and pass matters on Islam".

The first statement is utter bunkum because we have a dual track system when it comes to certain civil laws. Over the years, and with the Arabisation process, state religious departments have encroached in the legal and social domains of Malaysians and have used anti-Western rhetoric to bolster claims of Malay/Muslim nationalism and to maintain political hegemony.

This brings us to the second point. What exactly are “our” traditions? Who defines these traditions? I doubt Aidil when he talks about traditions he means a Malaysian culture that should be inclusive and accepting of diversity as guaranteed under our Federal Constitution.

What he most probably means is the traditions of the dominant Malay majority. Fair enough. However the problem here is that Malay culture has evolved over time. The Malays of today are different from the pre- and post-colonial Malays.

Social engineering, the influx of foreigners and decades of the Arabisation process has made it clear that mainstream Malay culture and traditions is in fact a replica of Saudi culture or at least that is the eventual goal. “Malay” tradition and cultural norms have over the years been replaced with Wahhabi imperatives that seek to extinguish the various cultural influences that made Malay culture and traditions such a melting pot of Southeast Asian influences.

Hence if we know that Wahhabism is the dominant Malay culture, then what this young lawyer is advocating is that those so-called traditions of those interpreting the Federal Constitution should rely on is in fact a foreign Islamic ideology that the Saudis themselves are claiming to curtail.

Deviant thinking

However, let us for one minute think it is okay to rely on such interpretations. Let us assume that Islamic jurisprudence is an acceptable source of law for all of us. Let us go back to the so-called golden age of Islam, that era where most rational Muslims use as a touchstone to promulgate the idea that theirs is in fact a forward-thinking religion.

Do you know of any Muslim Malaysian scholars who advocate such a position? I do. I could name many but these folks are sanctioned by the state for deviant thinking. Deviant from what, you may ask? From standard, Wahhabi thinking.

People like Aidil always reminds us that “interpretations of Islam and the Quran should be left to scholars who have spent entire lives dedicated to understanding the religion”, but when confronted by voices other than the ones approved by the state, these scholars suddenly lose their Islamic credentials.

Here is an opinion of someone who has had a formal education when it comes to the intricacies of Islam, Wan Ji Wan Hussin - “I don’t agree that only Islam can be propagated. The Federal Constitution states that, but I don't agree with it from the viewpoint of religion. Let the law practitioners debate if it’s from the law’s point of view. But as someone who studied religion, that statement is wrong. Non-Muslims should be given the right to give their views, as opposed to only the Muslims who can do so. Maybe that's why people have accused me of being ‘liberal’.”

Does this sound like something Aidil can get behind or is this one of those situations where this Islamic scholar suddenly loses his Islamic credentials? I have often argued that the only way we can stop the process of sliding into a failed Islamic state is when we have diversity of thought when it comes to Islam. The main reason why the state wishes to silence dissenting voices is that they are a threat to religious, but more importantly, political hegemony.

However, the last point is where the action really takes place. I am a firm believer in constraining federal power. So my question to this young lawyer is, what if a state decides that it is unIslamic to discriminate based on race and religion? What if Islamic authorities in a particular state decide that there should be a separation between mosque and state? What if the state’s Islamic authority decides that there no need for a local Islamic authority?

Would this young lawyer be still gung-ho on state rights or would this just be another case, where the state loses its Islamic legitimacy because it goes against the federal-approved form of Islam?

That Malaysian original Haris Ibrahim at the Bebas debate said that he would not have the Islam he believes in taken away from him. The tragedy is that his version of Islam is anathema to mainstream Malaysian Islam.

S THAYAPARAN is Commander (Rtd) of the Royal Malaysian Navy.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

Sarawak BN objections may doom Act 355

Terence Netto     Published     Updated
COMMENT Prime Minister Najib Abdul Razak could not have reckoned with the objections of BN component parties in Sabah and Sarawak to Act 355 when he announced last November that Umno would “take over” PAS president Hadi Awang’s private member’s bill to further empower Syariah courts.

Earlier this week, in a meeting with leaders of these parties, he was taken aback by the near unanimity of their resistance to the Umno move.

The fate of Act 355 - the popular shorthand for the bill initiated by Hadi in May last year and left ever since in a kind of suspended animation until the PM threw the weight of his office behind it - continues to be uncertain.

The current sitting of Parliament, supposed to end on April 6, may be extended a few days to enable the tabling of the bill.

However, the prognosis is that Umno is going to find it very difficult to conjure away the objections of the Sarawakian parties, in particular, to it.

What would it take for the Sarawakian BN parties to drop their resistance to Act 355 was Najib’s plaintive request of his interlocutors at the meeting, after his surprise at their intensity had worn off?

Exemption for Sarawak and Sabah, and for their people resident on the peninsula to its provisions, the PM was apprised in no uncertain terms.

Ironically, such exceptionalism would undermine the very argument that the Borneoan objectors to the Bill had relied on in their fulminations against it.

This was Act 8 of the Federal Constitution, which posits as a fundamental tenet, the equality of all citizens under the law. Act 355, which differentiates between Muslims and non-Muslims, would founder on the equality before the law tenet embedded in the Federal Constitution.

In other words, an exemption from the very basis on which the Borneoan parties had erected their case against Act 355 would be grounds for their acquiescence to the bill.

Of course, this stance is a philosophical non sequitur; its absurdity is enough to given a sense of the contortions Act 355 would have to undergo to persuade the Borneoans to come round to supporting it.

A political hot potato

Hence, based on what transpired at the meeting of the BN Borneoan component party leaders and Najib, Act 355 remains a political hot potato.

Its potential to split the BN is a threat just when fissures among the slew of opposition parties ranged against the ruling coalition are considered serious enough to prevent them projecting a unified stance in the coming general election (GE14).

The Umno-dominated BN’s chances of winning GE14 are enhanced by splits in the opposition.
Conventional wisdom has it that the seasoned pragmatists of Umno would not have boxed themselves into the corner they now find themselves in with respect to Act 355.

To prevent PAS from making common cause with the rest of the opposition at GE14, Umno’s support - which has asecended to sponsorship - of Hadi’s bill is the price that has to be paid.

It has been an article of faith with PAS that they are the indisputable repositories of all that is Islamic in the country. In that vein, they have come to regard Act 355 as a prized emblem of their rectitude.

But increasingly it seems that Umno’s support can only be given to PAS by a willingness to risk a split in the BN.

Although insistent, the objections to Act 355 from the peninsula’s non-Muslim BN component parties - MCA, MIC and Gerakan - are seen as somewhat malleable which was why the meeting between the PM and federal BN’s Borneoan cohort was crucial in establishing the extent of the risks Umno would be taking by a decision to chaperone Act 355 through the Lower House.

Borneoan, particularly Sarawakian, resolve against Act 355 will bolster the objections to it of non-Muslim parties on the peninsula.
What’s more, it would stiffen the otherwise tepid objections that Muslim MPs in opposition parties like PKR and Parti Amanah Negara have against it, not to mention latent reservations about the Act by mavericks in Umno such as Tengku Razaleigh Hamzah.
In sum, Act 355 has all the makings of a political misadventure whose extent we would soon get to know.

TERENCE NETTO has been a journalist for more than four decades. A sobering discovery has been that those who protest the loudest tend to replicate the faults they revile in others.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

Strengthen the independence of the judiciary

George Varughese     Published     Updated
The Malaysian Bar welcomes the news that the cabinet has approved the proposal by the Chief Justice of the Federal Court of Malaysia, Yang Amat Arif Arifin Zakaria, to have a separate head for each branch of the Judicial and Legal Service Commission (JLS Commission).

The JLS Commission consists of the chairperson of the Public Services Commission - who sits as chairperson - with several judges and the attorney-general.

The JLS Commission exercises jurisdiction, and consequently control, over legal officers as well as judicial officers in all matters governing their service, promotion, discipline and transfer, including their removal from office.

Judicial officers comprise, in general, magistrates, senior assistant registrars, deputy registrars, Sessions Court judges, and the chief registrar. Legal officers, on the other hand, comprise deputy public prosecutors, state legal advisers, legal advisers (to the ministries, government departments and its agencies), the solicitor-general, Treasury solicitors, federal counsel, and senior federal counsel.

There is a tendency for judicial officers to be transferred to the legal department, and likewise for legal officers to be transferred to the judiciary. This susceptibility of judicial and legal officers to being transferred from one department to the other raises concerns about the independence and impartiality of judicial officers who are part of the judiciary.

Arifin’s proposal is for legal officers to be headed by the attorney-general, as they currently are, and for judicial officers to be headed by the chief registrar of the Federal Court.

As Arifin rightly pointed out, a conflict of interest occurs whenever a prosecutor or the attorney-general appears before a judicial officer. Since the attorney-general is also the public prosecutor, and has supervision and control over judicial officers of the Subordinate Courts, there could be a likelihood of bias in the decision-making of the judicial officers.

Furthermore, the judicial officer may be of a lower rank than the prosecutor, and may thus feel some apprehension at delivering a judgment that is not favourable to the prosecution. A judicial officer’s independence may, in this manner, be compromised or be seen to be compromised.

Judicial officers are distinct from judges of the Superior Courts (ie the Federal Court, the Court of Appeal and the High Court), in that they do not enjoy security of tenure, but are subject to same terms of employment as public service officers, even though they perform the same functions as judges of the Superior Courts.

Judicial officers are thus in a less secure position of employment, and their independence may be affected by their perception that their decisions may place their employment in jeopardy.

Arifin’s proposal would eliminate the prospect or appearance of bias, strengthen the independence of judicial officers, and promote public confidence in the judiciary.

Arifin’s proposal would require amendments to Article 138 of the Federal Constitution. The Malaysian Bar stands ready to offer any legal assistance in this matter, in the belief that the adoption of the proposal is necessary to uphold the independence of the judiciary and the doctrine of separation of powers.

GEORGE VARUGHESE is president, Malaysian Bar.

Monday, March 20, 2017

Baru concurs with Abg Jo on concerns over proposed amendment to Act 355

Baru (right) speaks during the press conference to announce the formation of Pakatan Harapan Sarawak. Looking on are (from left) PKR Sarawak vice chairman See Chee How, Amanah Sarawak chairman Fidzuan Zaidi and Chong.

KUCHING: PKR Sarawak chairman Baru Bian supports the concerns raised by Chief Minister Datuk Amar Abang Johari Tun Openg on the discriminatory and unconstitutional elements in the proposed amendment to the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355).

DAP Sarawak chairman Chong Chieng Jen, on the other hand, opined that Abang Johari’s statement that he would leave it to Prime Minister Datuk Seri Najib Tun Razak to tackle the concerns raised as being ‘a bit ambiguous’.

Baru, who is Ba Kelalan assemblyman, said Abang Johari was right to be concerned about the discriminatory and unconstitutional elements.

He also applauded the Chief Minister’s misgivings with the Prime Minister about the constitutionality issues with the Act 355 Bill with respect to equality for all under Article 8 of the Federal Constitution.

“We cannot accept Shariah law, for Malaysia already has a supreme law, which is the Federal Constitution. Article 4 of the Constitution declares it simply: ‘This Constitution is the supreme law of the Federation’,” Baru said.

The Act 355 Bill, also known as RUU355, is expected to be tabled and debated in the current parliamentary meeting, and a vote may be called for it to be passed.

Parti Islam SeMalaysia (PAS) president Datuk Seri Abdul Hadi Awang had last year tabled a Private Member’s Bill to seek the amendments to Act 355 to enhance the punishment meted out by the Syariah Court.

The bill proposes to increase jail term from the present maximum of three years to 30 years; fine of RM5,000 to RM100,000 and the present maximum six lashes of cane to 100 lashes.

The Kelantan State Legislative Assembly had passed an amendment to Kelantan’s Syariah Criminal Code 1993 in 2015 but it could not enforce it due to Act 355.

Hadi’s Bill has been met with strong opposition from non-Muslims for fear that once passed, it will pave the way for the implementation of hudud in the nation.

Due to the strong opposition from other BN component parties such as MCA and MIC, Umno which is supportive of the bill decided to take over it and table it as a government bill.

Sarawak Barisan Nasional parties — Parti Rakyat Sarawak (PRS) and Sarawak United People’s Party (SUPP) — have said that they would instruct their federal lawmakers to vote against the Bill.

Baru hoped all Sarawak MPs have the courage to reject Act 355 if it is tabled in Parliament, saying there must be no absences, convenient ‘meetings’ or urgent ‘official trips’ that require them to be away from Parliament should the Bill be tabled and presented for voting.

He said they must be present to vote against the Bill to carry the Sarawak conscience and the aspiration of the country Malaysia is meant to be.

“Let the Hansard show that Sarawakian MPs have the courage and the conviction to stand up and be counted when it matters most.

“At the same time, Chief Minister Datuk Amar Abang Johari Tun Openg must instruct all Sarawakian MPs to be present in Parliament when the Bill is tabled and debated, and to vote against it,” he said.

He pointed out it is crucial that Sarawakians stand together to defend the rights which they secured under the Malaysia Agreement 1963, the Malaysia Act, the pre-formation documents and the Federal Constitution.

“Hadi Awang and Umno may say this is Syariah and not hudud, but as far as I understand it, hudud is part of the Syariah and the proponents had said this bill was to pave way for hudud punishments in Kelantan. This attempt at RUU355 is but a political contest between Umno and PAS to champion the implementation of Syariah Law in Malaysia,” he said.

Meanwhile, Chong who is also Bandar Kuching MP, said all the five MPs from DAP Sarawak have been assigned to watch over the 25 Sarawak MPs when the Bill is put to vote.

“We will play our part on what actually transpires during the crunch of the matter – that is the voting time for the Bill,” he said.

~ Borneo Post

Opposition puts on united front with Pakatan Harapan as GE14 looms

DAP, PKR and Amanah leaders join hands after the announcement of Pakatan Harapan Sarawak. Seated from left are Stampin MP Julian Tan, Batu Lintang assemblyman See Chee How, Fidzuan, Chong, Baru, Padungan assemblyman Wong King Wei and DAP’s Chong Siew Chiang.

Pakatan Harapan Sarawak to take on Barisan Nasional in coming general election

KUCHING: DAP Sarawak, PKR Sarawak and Amanah Sarawak have officially formed a coalition called Pakatan Harapan Sarawak to take on Barisan Nasional (BN) in all the 31 parliamentary seats in the state in the coming 14th General Election (GE14).

However, PAS Sarawak, which was previously a component member of the old opposition pact known as Pakatan Rakyat, is not included in the new alliance.

In a joint press statement, DAP  Sarawak chairman Chong Chieng Jen, PKR Sarawak chairman Baru Bian and Amanah Sarawak chairman Fidzuan Zaidi also said they have concluded seat allocation negotiations between the three parties for the GE14.

“Basically, the agreement is that, in GE14 the respective parties will contest the parliamentary seats previously contested by each of them in GE13, with Amanah to contest those seats previously contested by PAS.

“There may be some variations but that will be subject to mutual agreement of the parties involved. Failing any mutual agreement, we will fall back to the arrangement that the party which contested that particular seat in GE13 will contest the seat in GE14,” they said at the joint press conference held at DAP Sarawak headquarters here yesterday.

They also said the three parties have set up a secretariat consisting of two representatives from each party.

From DAP Sarawak are secretary Alan Ling and youth chief Wong King Wei; PKR Sarawak representatives are secretary Nicholas Bawin and assistant secretary Lynette Tan; and representatives from Amanah Sarawak are secretary Abang Halil and youth chief Fadhilah Sabali.

“The secretariat will co-ordinate activities and cooperation amongst the three parties and shall be responsible for the drafting of Pakatan Harapan Sarawak’s joint manifesto for GE14,” they added.

They also said they are open to and welcome other opposition parties who are true to their cause. “GE14 shall be the most important general election in the history of Malaysia. It shall be the time to save Malaysia from the fate of a kleptocracy nation and to save all Malaysians from the economic disaster that BN has pushed us into.

“Malaysia and Malaysians cannot afford to give Datuk Seri Najib Tun Razak and the BN another five years. Change, we must, for the future of our children and the country. Therefore, we Pakatan Harapan Sarawak shall do our best to work together to change the government and the country.” they said.

In GE13 held in May 2013, PKR contested in 15 seats but only won one seat – Miri. DAP contested in 11 seats and won five – Bandar Kuching, Stampin, Sibu, Lanang and Sarikei. Amanah was not formed yet at that time, but it will contest the five seats previously contested by PAS. There are a total of 31 parliamentary seats in Sarawak.

Meanwhile, Chong who is also Bandar Kuching MP brushed aside talks of seat swapping among Pakatan Harapan Sarawak components taking place at the moment, stressing that seat allocation would remain the same.

Baru, on the other hand, indicated that he will not contest in GE14 although he stood but lost to the BN incumbent in Limbang in GE13 four years ago. But the Ba Kelalan assemblyman stressed that PKR Sarawak does not lack qualified people to stand as candidates in GE14.

“We have submitted a list of candidates to (national leaders in) Kuala Lumpur. I am ready to support,” he said.

On behalf of Amanah Sarawak, Fidzuan thanked the other components for including them in Pakatan Harapan Sarawak which he hoped would be seen as a ‘new hope’ and alternative to BN for voters in GE14.

~ Borneo Post

Wednesday, March 15, 2017

Sarawak timber firm loses 30-year case over timber concession

 | March 15, 2017

Federal Court rules that High Court was right in deciding that former chief minister Abdul Taib Mahmud need not give evidence during trial.
PUTRAJAYA: A 30-year court battle and probably one of the longest civil cases to be decided has finally come to an end for a Sarawak timber company.

The Federal Court today dismissed an appeal by Keruntum Sdn Bhd against the Sarawak government for revoking its 25-year licence to extract timber.

The agreement to log over 188,926ha would have expired in October 2008.

During the trial in the High Court, the company claimed the decision to revoke the licence was politically motivated.

This was related to what is known in Sarawak political history as the “Ming Court Affair”, which occurred in March 1987.

What happened was that the late Sarawak chief minister Tun Abdul Rahman Yaakub led a group of state assemblymen of the Sarawak legislature and their allies to topple incumbent chief minister Abdul Taib Mahmud, who was also the minister of resource planning.

That attempt failed as the chief minister dissolved the state legislative assembly and caused an election in which Taib and his party were returned to power to form the state government.

In that election, BN secured 28 seats and the opposition 20.

Justice Hasan Lah, who delivered the judgment of the five-man bench today, said the apex court found no reason to disturb the finding of facts by the High Court.

“There is a concurrent finding as the Court of Appeal has held that the trial judge had not erred in facts and law,” he said.

Others on the bench were Chief Justice Arifin Zakaria, Zainun Ali, Abu Samah Nordin and Aziah Ali.

Hasan said the High Court was also right in deciding that Taib, one of the defendants in the suit, need not give evidence as the plaintiff had not proved its case.

“There was no necessity to call the minister of resource planning (Taib) as witness when Keruntum could not prove its case,” he said.
Hasan said as such, the Federal Court need not answer a legal question posed whether Taib had committed the tort of misfeasance in public office (abuse of power).

Taib, who was chief minister between 1981 and February 2013, had refused to give evidence in court during the trial.

He was appointed the 7th governor of Sarawak on March 1.

The company, represented by Gopal Sri Ram, had submitted that Taib had maliciously directed the cancellation of Keruntum’s licence on grounds that Rahman had conspired with several other assemblymen to unseat Taib.

He said the company was associated with Rahman, who is also Taib’s uncle.

Keruntum had filed a judicial review in 1987, naming the Sarawak Forest Department, Taib and the state government as respondents.

The High Court allowed the review and quashed the revocation. This was upheld by the then Supreme Court in 1988.

However, the company’s licence was revoked for the second time in 1988. It had been in business since 1983.

Keruntum later filed a civil suit in 1990 and serious charges of malice were made against Taib.

~ Free Malaysia Today

Natives lose NCR land case against S'wak Forestry Dept

Hafiz Yatim     Published     Updated
Just because six natives from the Kelabit, Lun Bawang and Penan tribes had re-settled at another area, the Federal Court today ruled they are not entitled to a claim made against four timber companies, the Sarawak Forestry Department and the state government for encroaching into their purported Native Customary Right land.

In allowing the appeal by the timber companies and the state government in Putrajaya today, the five-member bench led by Chief Justice Arifin Zakaria cited the Bisi Jinggut case, which ruled that when once abandoned, whatever NCR land that is created or acquired would have been lost.

The unanimous decision was written by Federal Court judge Justice Balia Yusof Wahi in the Racha anak Urud case today.

Racha, along with Edison John Urud, Jalung Jok, Menit Along, Agung Taie and Wilfred S Lasong had their case struck out by the High Court, only to see it reinstated by the Court of Appeal.

Justice Balia said what was vital was the continuous occupation of the land, that is occupying the land as with their forefathers had done before.

“It is found that they abandoned their NCR land and their claim to the NCR land came after the resettlement,” he said, adding that they had re-settled in their villages nearly 40 years and that the claimants no longer possessed the land where the logging activities had commenced 20 years ago, before this suit was filed.

“It is also conceivable that the plaintiffs do not know the presence of the defendants (the timber companies).

Justice Balia answered the first question of law in the negative, that the encroachment of the land is a violation of their constitutional right to the land and livelihood, where they no longer possessed or had abandoned them.

“Hence, we allowed the appeal with costs,” he said.

Justice Arifin allowed the parties to impose RM10,000 costs to be paid each to the timber companies.

The other judges who heard the appeal were Federal Court judges Justices Hasan Lah, Abu Samah Nordin and Azahar Mohamed

Racha was represented by Joshua Baru while JC Foong appeared for the Sarawak Forestry Department and the state government.

Four companies

Racha and the others named Ravenscourt Sdn Bhd, Billion Venture Sdn Bhd, Limba Jaya Timber Sdn Bhd, Kubang Sri Jaya Sdn Bhd, director of Forests Sarawak, and the Sarawak government as the defendants.

They claimed the land was part of their NCR land and that they were never consulted by the Sarawak government when timber and planting licences were awarded to those companies.
They further alleged that their sources of food, wild produce, irrigation, medicine as well as their living space, sacred grounds and recreational grounds were seriously threatened by the encroachment into their land.
They therefore sought a declaration that they had acquired and inherited native title of the NCR for the land, that the awarding of the licences to the companies violated their rights, and that the Sarawak government, in giving the licences, was wrong, unlawful and acted illegally.

The residents sought an injunction to restrain the companies from trespassing, encroaching or developing the land with machines. They also sought damages.

One of the companies, Billion Venture, was in the limelight four years ago, following an expose by international NGO Global Witness, in which the company lawyer was caught on video trying to strike a deal with a 'foreign investor'.

Tuesday, March 14, 2017

Affirmative action is morally wrong

March 14, 2017

As long as ethnic-based affirmative action remains, we will continue to be a society operating in a downward spiral of suspicion and discomfort about each other.
By Wan Saiful Wan Jan

Anyone interested to objectively study the topic of affirmative action must read the seminal book by Thomas Sowell entitled “Affirmative Actions Around the World”. The global study of affirmative action was published by Yale University Press in 2004, and it is probably still one of the most authoritative studies on the topic until today.

Sowell said in the book: “Some groups in some countries imagine themselves entitled to preferences and quotas just because they are indigenous ‘sons of the soil’, even when they are in fact not indigenous, as the Sinhalese in Sri Lanka and the Malays in Malaysia are not.”

This is a very strong statement. Sowell commented specifically about Malaysia. And he said that the Malays are claiming the right to preferential treatment through affirmative action because they are indigenous, even though they are not really indigenous to this land.

When affirmative action was implemented through the New Economic Policy (NEP), it was done with all the good intentions. Our second Prime Minister Tun Abdul Razak Hussein had a very good intention to rectify what he saw as structural weaknesses faced by our country at that time.

But as time went by, despite the original good intention, the affirmative action policy turned into an ugly beast.

What was supposed to be a temporary assistance programme evolved into a sense of entitlement, and then morphed into a monster called Malay rights that cannot be debated, let alone be removed.

I believe the affirmative action that was introduced by Tun Razak has evolved into something that even he himself would not recognise today. I cannot fathom that Tun Razak imagined one day his affirmative action ideas would ignore the fact that there are poor non-Malays too. He was more inclusive than that.

Quite a few people try to defend affirmative action on the basis that there is data showing it works. They produce sets of numbers and charts to show how some Malays have been moved out of poverty due to our affirmative action.

It is not difficult to show data saying affirmative action has worked. In fact, I myself am one of the beneficiaries of the affirmative action policies.

If I want to buy a property, I have the option of going for the discounted Bumiputera lots. Many readers will never be able to enjoy that privilege. There are some educational institutions that I can send my children to that many of you can’t.

There are many other examples that I can give of how I am more privileged that most readers just because of the colour of my skin, but I think those examples are enough to illustrate my point.

Indeed the affirmative action policy has helped me come to where I am today. I am not super rich. But I am comfortable. But just because I benefited does not make it morally right.

There are many people who need the help more than me but do not qualify because they are born Chinese. This is why the affirmative action system that we have today is morally wrong. How can it ever be morally justified for us to discriminate based on the colour of our skin?

No matter what data you present, what is morally wrong is still wrong.

To give a very simplified analogy, imagine a poor person and a rich person walking next to each other. The best way to statistically make these two people equal is by “legalising robbery” so that a poorer person can “legally rob” a rich person, as long as the amount taken makes both of them equal. Then inequality would be zero.

So, here we have solid data to suggest that to eradicate inequality, we should simply “legalise robbery”. Yet the fact remains that taking someone’s property by force is wrong regardless of the outcome. Clearly, even if the data says it works, a morally wrong action is still wrong.

The same applies to affirmative action. Perhaps, it does not involve robbing one person to help another. But it is still discrimination. Even if data shows it works, discrimination is morally wrong. We must not create excuses to justify discrimination.

Unless we accept that we need to urgently re-examine our policies to ensure there is no ethnic-based discrimination, we will never be able to build a unified nation.

As long as ethnic-based affirmative action remains in place, we will continue to be a society operating in a downward spiral of suspicion and discomfort about each other’s culture. The pervasiveness of ethnic-based discrimination in our society is sowing distrust among fellow citizens.

Unfortunately, today any politician who tries to present a different vision is unlikely to win. It is more likely that he will get into trouble with voters and perhaps even the authorities.

To add to the complication, looking at the situation in our country today, I also feel that only a Malay can talk about abolishing affirmative action in Malaysia. Things will only become worse if a non-Malay were to champion this issue.

Because of that, even though many people can see that the affirmative action that we have today is discriminatory and morally wrong, we might be stuck with this problem for the foreseeable future.

I still cannot see any of the Malay political leaders being brave enough to challenge the status quo and correct this moral injustice. Every single one is too busy thinking about the short-term gain of winning the next election only.

Wan Saiful Wan Jan is the chief executive of the Institute for Democracy and Economic Affairs, Ideas.
This commentary was first published in Sin Chew Daily.

With a firm belief in freedom of expression and without prejudice, FMT tries its best to share reliable content from third parties. Such articles are strictly the writer’s (or organisation’s) personal opinion. FMT does not necessarily endorse the views or opinions given by any third party content provider.

~ Free Malaysia Today