Monday, September 22, 2008
Desperately seeking law and order
Desperately seeking law and order
By Debra Chong
KUALA LUMPUR, Sept 23 The last few months have been eventful ones for the Malaysian Bar Council. But if you ask its president Datuk S. Ambiga, she'd say they were a little "too eventful-.
The number of issues indicative of the rot eating away at the heart of the rule of law has increased drastically, it seems, in the 1? years since she took office.
There was the scandal of judge-fixing exposed through the V.K. Lingam videos, the Lina Joy case as well as the two public fora on the social contract and conversion to Islam this year, which appear to have rent further the gap between the civil and syariah courts.
"It has been very challenging. I could do with a little less excitement," quipped Ambiga.
But the excitement is not letting up anytime soon. Right now, the Bar Council is embroiled in yet another challenge, an old one in fact. Last Saturday, over 700 lawyers attended an emergency extraordinary general meeting at Wisma MCA here and unanimously voted to reassert pressure on the government to immediately and unconditionally release the people who have been detained under the Internal Security Act and other similar laws, such as the Emergency Ordinance 1969 and Dangerous Drugs Act 1985 that allow for an individual to be detained without facing a charge or trial.
According to Ambiga, the number of detainees could be up to 2,000.
"As far as ISA detentions are concerned, we have for so long... so many years... been completely against the ISA. The Bar has been the sole voice against the ISA so many years ago," Ambiga said.
It was not the first time the Bar had convened to discuss the demerits of the archaic legislation, nor will it be the last time until the law is repealed.
"People have appreciated for the first time that the ISA has been abused. Credit to the media for highlighting the legal implications," she added, noting that the number of supporters demanding a repeal of the ISA, particularly those from within the government, has spiked lately, "which is very healthy."
Yet, the challenge remains to expose the depth of the impact and far-reaching consequences such laws have on society at large.
"It's all about the prevention detention legislation," Ambiga emphasised.
"What we're looking for is a situation which minimises the abuse of power. Unfortunately, the ISA and other such prevention detention legislation allow for unchecked abuses of power."
During the EGM, the Bar was privy to first-hand accounts of the conditions under detention from Teresa Kok, who was released on Friday after being detained for a week; S. Pushpaneela, wife of the Kota Alam Shah state assemblyman M. Manoharan who won the seat while he was under ISA detention; and another woman whose husband has been detained under the ISA for six years.
"To me, one of the main things is for people to listen to the personal experiences of the families who are wrecked, and of the victims, so as to understand the impact of detention without trial.
"I am appalled by stories of Teresa and Raja Petra's family as to how they were detained, for example, the sleep deprivation... being held in a cell without windows, the bad food," recounted Ambiga.
Raja Petra Kamarudin of Malaysia-Today was one of three people arrested two weeks ago in what looked like a crackdown on alternative media. He remains in detention while the other two Sin Chew reporter Tan Hoon Cheng and Kok have been released.
"We're terribly, terribly concerned at the way they were treated. To me, this amounts to state-sanctioned torture. And that really has to stop.
"It falls within the definition of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. We're not a signatory to that convention but that doesn't mean that we can do it," Ambiga said.
And as to the matter of the sudden resignation of Datuk Zaid Ibrahim, the pro-reformist senator appointed to the Cabinet as the de facto Law Minister to overhaul the country's entire legal and justice system, Ambiga found herself in two states of mind over the news.
"I think it is a loss, definitely. It is a loss in the sense of moving along the reform agenda. He had done preparatory work for us.
"But he resigned on a matter of principle which is commendable. I can't ever remember a minister resigning on a matter of principle and sets the right tone for a democratic government," she said, expressing her fervent wish that the government does not take this as a sign to hold back on the reform measures it has been promising.
Ambiga said the council has been communicating with Zaid's predecessor, Datuk Seri Nazri Aziz, who has said he would "move along the reform issues", particularly the Judicial Appointments Commission, to tackle head on the ghost that has been haunting the judiciary for the past 20 years the 1988 judicial crisis.
In a speech at the Bar's annual dinner in April, Datuk Seri Abdullah Ahmad Badawi brought up the issue and announced his intention to make up for lost time and implement several measures, chiefly the setting-up of JAC, to re-empower the present judiciary which had been stripped of much of its powers following the sacking of its then Lord President Tun Salleh Abas and two Supreme Court judges and the suspension of three others.
It was the closest thing to a public apology the aggrieved parties would get. For Ambiga, it was a very welcome and courageous stance.
"That's something we think is very necessary to confront if we want to step forward and talk about judicial reform," she said. The Bar Council had slogged 1? years researching its establishment.
"Everyone around me actually cautioned me against getting my hopes up but I said 'No! We did a lot of research on it. They will take us seriously.' Sadly, it looks to be suffering the same fate as the IPCMC," Amiga said, referring to the much-talked about and equally ill-fated Independent Police Complaints and Misconduct Commission announced by Abdullah around the same time.
She added: "I hope I am wrong."
However, there has been no time to lament. Other matters pertaining to the presentation, promotion and upholding of the rule of law soon took up space in her mind, giving hope that some day the JAC may yet be born, perhaps in the hands of Nazri who had failed the first time around.
"What's positive is that people are talking about these things more, about excellence, integrity in upholding the office in the judiciary," she observed. Her delight was also dampened somewhat by another observation.
"True to say, people take the rule of law for granted, until they do not have it any more. Clearly, these issues have to be addressed."
The biggest and most pervasive challenge to the rule of law is when politics takes centrestage, which is the de facto practice in governance in this country, noted Ambiga.
"The rule of law is easily sidelined because it is a migraine to a lot of people in power. That's why it is important to always have an eye on the ball where that is concerned," she said.
She is greatly concerned with the abuse of political leverage by those in power, which has caused damage to the rule of law. For example, lawyers being hauled in for police questioning regarding their relationship with their clients, referring to the recent incidents whereby several lawyers were subpoenaed over the disappearance of private investigator P. Balasubramaniam, a key witness in the ongoing murder trial of Mongolian national Altantuya Shaariibuu.
"This is an act of intimidation of lawyers," cried the outraged Ambiga, who was surely recounting many other incidents where the state employed playground bully tactics against individuals.
"There have been frequent threats using the Sedition Act, the Internal Security Act, recently, and they all point to using the power of the state against the individual without regards to his rights," she blasted.
"It's almost as if we're losing grip to what is the real threat to society."
Some critics have called the Bar Council a "toothless tiger" when it comes to fighting for what is really important, that is, speaking up for the rights of all citizens.
"It is not that there are no people speaking up but that they are not allowed to, or intimidated into not doing so. That's the real threat," Ambiga said, emphasising that the Bar Council has never lost sight of its goals.
"As far as we are concerned, we only concern ourselves with the rule of law issue. We do not enter the realm of politics at all, we do not comment on politics. But our independence has been threatened," she told The Malaysian Insider.
Ambiga said the Bar Council has been attacked so many times, been accused of being partial to this party and that party, been called names, "that we are anti-establishment, we are anti-opposition, so on and so forth."
"The office bearers face charges for sedition, contempt, all the like. It comes with the job," she said, shrugging off the hazards of her job, which is wholly voluntary. None of the 36 council members are paid for their extraneous services.
Ambiga herself has received several threatening messages and phone calls from anonymous parties, most particularly after last month's forum on "Conversion to Islam: Revisiting Article 121(A) of the Federal Constitution".
A Molotov cocktail was lobbed into the compound of her old family home, now occupied by Special Advisor to the Prime Minister on Women's Affairs, Datuk Seri Shahrizat Abdul Jalil, and her family.
But the council is not only challenged by forces outside the Bar. Because it is an elected body, there is also the matter of answering to the dissenting voices from within, which Ambiga said wryly, was a whole lot tougher than the external critics.
She acknowledged that there were differences in opinion but saw them positively.
"There's diversity in the Bar and that's our strength. When something really important comes up, the numbers are there," she smiled, giving as an example, the unanimous vote at last Saturday's Bar EGM on the preventive detention laws and last year's Bar Council-organised "Walk for Justice" in Putrajaya.
And that's the comfort Ambiga draws from knowing she has done her utmost to speak up for the law reform and restoration of order.
"I call it keeping the faith. I hope I have kept the faith. That's my only hope."