Tuesday, September 23, 2008

Free RPK: It's Not Over

Wednesday, September 24, 2008
Free RPK: It's Not Over

Let me first apologise to you for not having given you an update yesterday. It was a trying day, the culmination of a period of work and stress that began the day RPK was detained. Not just for me but for the other members of the team, in particular Ashok Kandiah and Neoh Hor Kee.

You would have read of how the application was originally fixed for the 26th of September. It was through the enormous efforts of both these lawyers that the hearing was brought forward as it was. It was also through their efforts that the necessary court papers and affidavits (statements on oath) by RPK were obtained as quickly as they were. It was primarily due to their efforts that when, as lawyers say, I got up on my hind-feet in court yesterday, we were ready to give it the best shot we could. I believe that the case we would have mounted for RPK would have been virtually unassailable.

But out attempts were impeded.

I say impeded because at this juncture we do not know whether the High Court is going to hear the original section 73 application now that the Minister has issued a detention order. A fresh application can also, and will be, filed to challenge that order. To be fair to the judge concerned, Suraya Othman J, she considered herself bound by precedent that she thought tied her hands. She acted fairly, albeit conservatively.

As much as some of us may think otherwise, RPK's case is one of many that the judge has to deal with. We must also keep in mind that the judge has not dismissed or struck out RPK’s application even though this was what Federal Counsel sought. It is now for us to attempt to convince the judge that there is merit in proceeding with this application even though she will not be able to order the release of RPK based on this application alone. I would like to think that we still have a chance.

A second habeas corpus application will also be filed to challenge the Minister’s order. We started working on it yesterday. In truth, we are handicapped; the ISA precludes comprehensive review of such an order. Added to this is the legal position that such an order is issued by the Minister at his subjective discretion. The courts have been reluctant to interfere with the Minister’s discretion, save on procedural grounds, on the basis that, firstly, the law does not permit otherwise and secondly, the Minister knows best about national security.

This is the massive obstacle we are faced with.

This is one of the reasons why a section 73 detention is converted to a section 8 detention when the IGP is confronted with a habeas corpus application; the issuance of the Minister's order narrows the scope of review and permits the Minister to shield himself behind a veil of national security. RPK is not the first victim of such a strategy. We experienced the same difficulty during the so-called JI detentions in late 2002.

There are however peculiarities about RPK’s detention that may give us footholds to ease our ascent. The media has reported that the Minister issued the detention order on the recommendations of the police. These pertained to the so-called anti-Islamic articles that RPK has supposed to be written. We at least know the basis of the detention and are able to bring it into focus when we get to court.

There are also no other legal tricks that can be pulled by the Ministry. The issuance of the detention order is as problematic for RPK as it can get. Some have said that this makes the detention virtually immune from challenge. I would like to think that the interests of justice can always be served if we remain hopeful of finding the path to it.

Every case in court brings us into uncharted territory and with it surprises. I have had my share. In 2001, Justice Hishamuddin ordered the release of Abdul Ghani Haroon and N Gobalakrishnan. He also prevented the police from re-arresting the two. I was in court the day he pronounced the orders and the sheer exultation I felt as he did remains with me to this day as has the awareness that there are those who will do the right thing when times seem darkest.

RPK and the other civil society leaders who have shown us the way started a process to transform this country. This legal campaign is a part of it as is the mounting civil society pressure against the ISA that have spring-boarded off his detention and that of Theresa Kok, Tan Hoong Cheng and the HINDRAF 5. RPK knew what would happen and lent himself to the process. For that that reason above all, he is firmly ensconced in my mind as a patriot.

We must not lose faith. The fight has not ended, it has just begun.

Posted by Malik Imtiaz Sarwar at 8:06 AM 0 comments
Labels: administration of justice, Civil Society, democracy, governance, Internal Security Act, Malaysia, Minister of Home Affairs, Raja Petra, RPK
Monday, September 22, 2008
Free RPK (Update)

RPK's habeas corpus application is now scheduled for tomorrow morning (23rd September 2008). It will be heard by Justice Suraya Othman of Criminal High Court 1. The court is situated on the 5th Floor (left wing), KL Court Complex, Off Jalan Duta.

RPK has been detained under section 73(1) of the Internal Security Act. Unlike a detention by the Minister under section 8 (as was the case with the HINDRAF 5), a court must review a section 73 detention on an "objective" basis. It must satisfy itself objectively that there was a reasonable basis for the detention in the context of national security. The detaining authority is therefore under a burden to establish that the activity complained of (on the part of RPK) could reasonably be characterised as a threat to national security.

If the court allows the application, RPK must be released immediately. If the court dismisses it, an appeal lies directly to the Federal Court.

Posted by Malik Imtiaz Sarwar at 11:40 AM 13 comments
Labels: democracy, Federal Constitution, fundamental liberties, Internal Security Act, Malaysia, Raja Petra
Saturday, September 20, 2008
Navigating The Constitutional Impasse

It seems that we are well on the way to a constitutional crisis. A deadlock looms and, as some commentators including Professor Aziz Bahri of the International Islamic University have suggested, much will depend on how proactive the Yang di-Pertuan Agong can and will be in breaking it. In this, and more, it is becoming increasingly apparent that that the line between those who want change and those who do not will be the Federal Constitution.

Let us consider the objective elements.

Firstly, any Prime Minister of the nation must necessarily be the person who commands the confidence of the majority of the members of the Dewan Rakyat. As to who it is that commands the confidence, this is a decision for the YDPA “in his judgment”.

Until the events in Trengganu shortly after the last general and state elections, it was commonly thought that this was really a matter of having the numbers, that is the person with the most number of supporters in the chamber would become the leader of the government. The interventionist position of the Regency Council, for all purposes and intents the Sultan, earlier this year shed light on how things could justifiably be viewed differently. The appointment of Ahmad Said as the Mentri Besar possibly set a precedent and gave us foundation for the argument that it was ultimately the judgment of the monarch that mattered.

This is relevant as the material provisions in the Federal Constitution are virtually identical to those in the Trengganu state constitution. The YDPA could, as such, approach the issue in a similar way. This is not necessarily impossible; the YDPA is the Sultan of Trengganu.

Secondly, a Prime Minister who no longer commands the confidence of the majority has two options. He can ask the YDPA to dissolve parliament and use that to call for fresh elections. The YDPA however has an absolute discretion to withhold consent and as such, could legitimately refuse. This would leave the Prime Minister with no option other than to tender his resignation and that of his Cabinet and pave the way to the appointment of a new Prime Minister, one who in the judgment of the YDPA commands the confidence of the majority.

Thirdly, the Federal Constitution does not say how to establish that the Prime Minister has “ceased to command the confidence of the majority”. A vote of no confidence is an obvious method but not necessarily the only one. To read the constitutional provision otherwise would not only be unwarranted (an unnecessary implication of meaning) but would also allow for unconstitutional action, such as the use of the provision to impede the expression of the majority of the Dewan Rakyat. It is possible that circumstances could arise where an incumbent government seeks to prevent the meeting of members in Parliament to undermine any attempt by the majority to form a new government. To read provisions of the Constitution to lend to such an outcome would be wholly repugnant to the scheme the Constitution puts in place.

As such, it is open to the YDPA to form a view through other means, such as direct meetings with the majority of the Dewan Rakyat, so as to satisfy himself that the incumbent Prime Minister has in fact ceased to command its confidence. Events in Perlis and Trengganu earlier this year are illustrative of this course. That this approach is not necessarily ideal, for being amongst other things, fraught with practical difficulties, does not in itself militate against such an approach having been within the contemplation by the founders of the Federal Constitution.

Fourthly, assuming the YDPA nonetheless felt it necessary to have a vote of confidence put through the Dewan Rakyat, a question arises as to how this would be approached. If parliament were sitting, this could arguably be put through the Dewan. Such a motion would be extraordinary and exceptional. Going to the very foundations of the legitimacy of the incumbent government, it would have to be treated as a matter of priority. To allows such a motion to be encumbered by the procedural requirements of parliament would be wholly repugnant to the spirit, if not the letter, of the Federal Constitution. Even though the Speaker does have control of proceedings in the Dewan, he must allow for urgent debate and a vote on the motion if there is sufficient foundation for the motion. He has taken an oath to preserve, protect and defend the Federal Constitution and, therefore, the system of governance it puts in place. Such a motion and its outcome are self-evidently matters of grave constitutional significance and impact that cannot be ignored.

This would be more the case if the YDPA gave indication that it was His Highness’ wish for the motion to be dealt with as a matter of utmost priority. Under the Federal Constitution, Parliament is constituted of the YDPA and the two houses of parliament and an expression of His Highness’ intent cannot but be given great weight.

If parliament is however not sitting, a question arises as to whether the motion should be deferred to a time when parliament reconvenes. The question of the legitimacy of an incumbent government is not a matter that can be taken lightly assuming there is reasonable foundation for a belief that it no longer commands the confidence of the majority. The government does not adjourn as parliament does and it continues to act on the basis that it has the mandate to do so throughout its term. It would therefore be only logical for parliament to reconvene on an urgent basis to debate and vote on the motion. This however raises the question of how parliament is to be summoned.

The Constitution provides that the YDPA summons parliament. This is arguably done on the advice of the Prime Minister and it is for this reason that parliamentary procedure provides for reference to the Prime Minister. The Constitution is however silent on a situation where the motion in issue is one aimed at establishing that the incumbent Prime Minster no longer commands confidence. So are parliamentary rules. Though it could be said that there is as such no power with the YDPA to summon parliament, to read the Constitution as vesting a discretion in the incumbent Prime Minister to determine whether the Dewan will meet on whether he or she commands the confidence of the majority would lend to an obviously self-defeating outcome. It would after all be in the interests of the incumbent Prime Minister not to allow for the summoning of the Dewan. This cannot be right.

It is reasonable to read the Constitution as providing for this exceptional situation in the following way: the YDPA has the discretion to summon parliament for this purpose in view of it being an incident to the absolute discretion of the YDPA to appoint as Prime Minister a person who commands the confidence of the majority. Simply put, the YDPA must be given means to ensure that the Prime Minister is a person who commands confidence if His Highness is given reason to apprehend otherwise.

As such, His Highness could direct the Speaker to summon the Dewan Rakyat to debate the motion. The Speaker would be at risk of defying a legitimate direction of the YDPA and breaching his oath of office, with all the consequences of such an act, if he refuses. Alternatively, the YDPA could direct the incumbent Prime Minister to summon the Dewan. A refusal would similarly run the risk of being an unlawful defiance of a legitimate direction or a breaching of the oath of office.

Sixthly, in the event the YDPA forms the view that the incumbent Prime Minister has ceased to command the confidence of the majority, the YDPA could then appoint a new Prime Minister. A further question arises as to whether the incumbent Prime Minster must firstly tender his resignation and that of his Cabinet. Though this would be ideal, I have my doubts as to whether it is a necessary prerequisite, especially if the incumbent government intends to undermine the forming of a new government. Though the Federal Constitution does not provide for the dismissal of a Prime Minister, the appointment of a new Prime Minister would merely be giving effect to the wishes of the majority of the Dewan and system of governance put in place by the Constitution.

But then, what if the incumbent government refuses to vacate office? If the new Prime Minister is sworn in and given the necessary instruments of power, the incumbent government would in effect no longer be the government of the day and would no longer in law be lawfully possessed of power. Those individuals who lend themselves to this situation could be viewed as trespassing and, worse still, be seen as attempting to usurp the legitimate power of a lawful government. This has grave consequences.

The analysis set out above is based on my understanding of the Federal Constitution and it goes without saying that others may take a different view of the issues. However, it must be borne in mind that as the supreme law, the Constitution defines the way in which we are to organize ourselves and arrange our affairs. This extends to transitions of power, something which the founders could not but have contemplated as being possible. The Constitution was drafted in general terms so as to ensure that it was relevant and applicable to situations in an evolving nation and remain a vibrant and living law. The answers are there if we look for them fairly and objectively.

In the difficult times ahead, it is clear that the various factions will take positions on key constitutional provisions and interpret them in a way that favour their intended aims. In this, the YDPA plays a crucial role as does the Judiciary. It is therefore vital, and I say this respectfully, that both these institutions be seen as being detached and far removed from the politics of the unfolding events. How the approaching crisis is resolved, and the way in which this is done and seen to be done, are matters that go to our ability to meet the future with the stability and conviction that this nation requires to meet the challenges ahead.

Posted by Malik Imtiaz Sarwar at 12:44 PM 10 comments
Labels: Anwar Ibrahim, Barisan Nasional, Federal Constitution, Judiciary, Malaysia, Pakatan Rakyat, Parliament, transition, Yang di-Pertuan Agong
Tuesday, September 16, 2008
All Present And Accounted For

All Present And Accounted For

Like many others, I stopped breathing last Friday evening as I saw my worst fears begin to materialize.

For some time now, talk of a crackdown similar to the 1987 Operasi Lalang had been intensifying, in part due to the Government’s unapologetic stance as to its readiness to use the Internal Security Act when it thought it necessary. This had not given much comfort to those who remember the dragnets of 1987 and 2001. If history had taught us anything, it was that in a world where politics determines so much, “when necessary” is a heavily nuanced and very subjective notion. We cannot be faulted for assuming that UMNO will employ the ISA to its convenience if it is in its political interests to do so.

As the events of the weekend have shown us, our assumption has some basis.

By early Friday afternoon, I had learnt that Raja Petra had been detained. I had also begun to hear the rumours that this was the start of a wider sweep that was to take place over the weekend and was profoundly troubled by them. I found myself struggling between not wanting to believe that the Government would be prepared to take that course, it being so counterintuitive, and being forced by circumstance to accept that the terror had started. The situation was not clear. there had after all been prior indication of the Government’s intention to detain Raja Petra specifically. Furthermore, no one had been detained since Petra’s detention at about 1.50 pm. Like all victims of impending disaster, clutching at straws I began to try to rationalize my way out of what seemed like a certain outcome.

I had begun to make some headway when I got news that Tan Hoon Cheng had been detained.

Up to that point dinner had been congenial. It carried on in complete silence, each one of us there thinking of who it was that we knew who could possibly be picked up. We recalled how there had been no apparent pattern to the detentions of 1987 and appreciated that the authorities would want to be able to point to random causes to argue against accusations of a political plan if in fact there was one. Academics and missionaries had been swept up in Operasi Lalang, even as the opposition was neutered by the removal of its leaders and prime movers.

The detention of Hoon Cheng meant that virtually anyone who had in some way or other been a little more public than average was a potential target. As concerned friends and acquaintances began to call in, for my sake and a number of people I knew and cared for, the yawning abyss of uncertainty before me brought home the painful realization of the potential costs of standing up for beliefs and a better country. Liberty and the integrity of mind, body and spirit were really no more than a question of not being in the wrong place at the wrong time.

The news that Theresa Kok had been detained rammed that conclusion home. She had done nothing out of the ordinary, more so when compared to other personalities in politics. Any doubts I had began to dissipate; there was something bigger afoot.

It was a long night. Tracking news about people I knew, speaking to them, making sure that we all felt connected to each other, to share what little encouragement we could. Speaking to others, trying to help spread the message that whatever was to happen we were to meet it calmly and with the belief that things would be for the best.

But even as the pieces fell into place and we began to face up to the probability of a wide sweeping operasi, the differences began to emerge and I could see that this was not 1987. Malaysians were reaching out to each other, messaging and calling, organizing vigils, lending their support, standing up to the intimidation as best as they could with a calmness that shone out into the gloom that threatened to engulf us, dissipating it. Looking out, I saw lights on in houses on the street where I was late into the night, early into the morning. They were beacons of hope that promised the dawn of a new day.

And come it did, something happened.

Hoong Cheng was released, accompanied by a farcical explanation that only strengthened public resolve. Raja Petra and Theresa are still under detention but their families have got to see them and their lawyers are hard at work on what in my view seem to be promising cases for habeas corpus. No other persons were detained, perhaps in part due to Barisan Ministers and component parties having taken positions against the detentions, echoing the sentiment of outrage expressed by civil society. In an unprecedented move, an UMNO Minister tendered his resignation on principle for the unjust use of the ISA. And the Government has had its hands full attempting to explain the inexplicable as it never has had to before.

Whither Malaysia? We are right here, all present and accounted for.

(Malay Mail; 16th September 2008)

Posted by Malik Imtiaz Sarwar at 6:45 PM 18 comments
Labels: democracy, governance, Internal Security Act, Malay Mail, Malaysia, Operasi Lalang, Raja Petra, Tan Hoon Cheng, Theresa Kok
Free RPK

We filed for habeas corpus this afternoon. Time to fight the good fight.

Posted by Malik Imtiaz Sarwar at 4:05 PM 15 comments
Labels: blogging, democracy, freedom of expression, Internal Security Act, Malaysia, Raja Petra
Selamat Hari Malaysia

Selamat Hari Malaysia.

This photograph gives you an impression of the state of euphoria in Kelana Jaya last night at the Pakatan Rally (photo by TV Smith, more here; photos by Chee Seong here). More importantly, it gives you an idea of what a pluralist Malaysia would look like. I say would, not could, because it is an inevitable reality built on the undeniable truth that the only thing that keeps us apart from each other is politics. We are all anak Bangsa Malaysia.

September 16th, 2008. Whether it happens today, tomorrow, or the day after, Malaysians will get a government that they are entitled to, one that stands for truth, justice and fairness for all. Anwar Ibrahim says that the Pakatan Rakyat has the numbers. Even if they do not, even if it takes us a few more months or years to get to a point where Malaysia will look like it does in this photograph, with or without the Pakatan Rakyat, we will get there. I am convinced of this.

We are reclaiming what is ours, a free Malaysia.


Update: see also Thinkvision's Weblog for more photos and commentary

Posted by Malik Imtiaz Sarwar at 8:33 AM 14 comments
Labels: Bangsa Malaysia, Malaysia Day, September 16th 2008
Friday, September 12, 2008
RPK, ISA And The Rest Of Us

Malaysiakini reports that RPK has been detained by the police under the ISA. At the time of publication, the RPK was still at his house with police officers.

The news has spread fast. With it are concerns that a wider 1987 type crackdown is going to happen or that even worse, there is going to be chaos and racial violence.

We must remain calm. Reactionary behaviour and fear mongering is not going to make things any more sensible or easier. Things will unfold as they have to.

The Government must also do its part and explain clearly how RPK is a threat to national security and why he has been detained. He had presented himself everytime he was asked to at police stations and in court. He has been charged, has not attempted to flee the jurisdiction and has indicated his desire to defend himself in court. Access to Malaysia Today has been permitted. And though four police reports have recently been lodged against him by agencies linked to the Government, a consideration of those police reports in the bigger picture would reveal the unreasonableness of his being detained on the basis of what has been alleged in those reports. The Government must make the basis of its decision clear and why it is RPK cannot be tried in an open court.

And for the rest of us, let us stand united and firm in our belief in a better Malaysia.


Posted by Malik Imtiaz Sarwar at 2:13 PM 27 comments
Labels: governance, ISA, Malaysia, Raja Petra

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