Courts must change their hands-off policy

Raja Aziz Addruse and Ding Jo-Ann

First published in The New Straits Times on 24 May 2009

THE recent cabinet decision to ban the conversion of children by one parent who has embraced Islam has been generally welcomed. In ruling that the children of a non-Muslim marriage must be brought up in the "common religion of the parents at the time of the marriage", if one of the parents converts to Islam, the cabinet has at last come to recognise that it is no longer tolerable to ignore a serious problem which has caused untold suffering and misery to innocent spouses.

The decision followed the challenge by a Hindu woman, M. Indira Gandhi, to her husband's conversion of their three children to Islam.

This was the latest of a number of cases in which people who have embraced Islam have also changed their children's religion without obtaining the consent, or in spite of the protests, of their non-Muslim spouses.

Attempts have been made over the years to try to resolve the problem. The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism, for one, has been active in trying to get the government to address issues pertaining to conversions to Islam.

However, the response from the government and the authorities concerned has not been at all encouraging.

A proposal to set up an Interfaith Commission, made by a Steering Committee set up by the Bar Council to help resolve such problems, had to be shelved in July 2006 when then prime minister Datuk Seri Abdullah Ahmad Badawi publicly announced that all activities relating to the formation of the proposed commission should immediately cease because it was "creating unnecessary problems" and religious tension in the country had reached "a worrying level".

Discussing such controversial issues openly and without control would, he said, evoke emotions which would lead to "unwanted situations".

In August last year, senior government ministers made it clear, by their public statements, that the Bar Council should not proceed to hold a forum to discuss issues of religious conversion because such sensitive topics should only be discussed behind closed doors so as not to provoke misunderstanding.

No doubt, looking at it against that background, Sisters In Islam viewed the recent cabinet decision as "bold and progressive".

The problem arose from an amendment to the Federal Constitution made in 1988. A new Article 121(1A) provided that the civil courts "shall have no jurisdiction in respect of any matter within the jurisdiction of the syariah courts".

Some judges have construed this as conferring upon the syariah courts exclusive jurisdiction to deal with all issues pertaining to conversion to Islam. As a result, they have frequently declined jurisdiction to hear the grievances of persons in the position of Indira Gandhi, even though they are non-Muslims.

In 2004, the High Court declined to entertain the application of Shamala Sathiyaseelan for a declaration that the conversion of her two children to Islam by her husband, who had converted to Islam, was null and void.

It held that it did not have the jurisdiction to rule on the status of the children as they had become Muslims and it was the syariah courts which could do so by virtue of Article 121(A) of the Constitution.

Moreover, it was only the syariah courts which had the expertise and the competence to decide on the status of the children. While acknowledging that Shamala, the children's mother, not being a Muslim, could not seek redress from the syariah court, the High Court was not prepared to look into her plight, suggesting that "it was for Parliament to provide the remedy".

People who convert out of Islam, too, face the same difficulty over jurisdiction. Soon Singh a/l Bikar Singh, who was born of Sikh parents and who had converted to Islam at the Perkim office in Alor Star while he was a minor and without the consent of his widowed mother, later renounced Islam.

His application for a declaration that he was no longer a Muslim was objected to by the Kedah Islamic Department on the grounds that the High Court had no jurisdiction over the matter. The constitutional issue of jurisdiction raised by the objection could not have been framed more clearly; but the issue was sidestepped by the Federal Court (to which the matter went up on appeal).

Instead, the court ruled that the jurisdiction over matters of conversion out of Islam, although not expressly provided to the syariah courts by the state enactment, could be implied.

The reluctance of the civil courts to assume jurisdiction has led to the present uncertainty in the law and given rise to the need for the cabinet decision, presumably to be implemented by the promulgation of appropriate legislation.

But resort to legislation to provide the remedy is only warranted if there is a gap or lacuna in the Constitution, a constitutional vacuum, which requires legislative interference.

To those who regard the Federal Constitution as providing for comprehensive rule of government, it is difficult to believe that there is such a vacuum.

The civil courts' denial of their jurisdiction over matters involving forced conversion of children of non-Muslim marriage, and conversion out of Islam generally, is tantamount to an abdication of judicial duty. They need urgently to understand and appreciate that cases like that of Shamala could, and often do, give rise to overlapping issues.

Where there is an overlap, allegations of infringements of the right to freedom of religion, for example, are for the civil courts to decide.

Looking at the cases where jurisdiction has been declined, the courts seemed to have been overly pre-occupied with interpreting Article 121(1A) (that civil courts do not have jurisdiction in respect of any matter within the jurisdiction of the syariah courts) to explain why the syariah courts should have jurisdiction.

But they have not given much consideration to their jurisdiction to determine on the individual's guaranteed right to freedom of religion.

Had they done so, their conclusion would certainly have been different and there would not have been any necessity to appeal for government intervention.

The cabinet decision, laudable though it is, may not be easy and may take time to implement. The more expedient way to deal with the problem may be for the courts to re-examine their position on the issue of jurisdiction.

It is not too late in the day for the civil courts to step in to try and solve the serious problems their hands-off policy have created.

Raja Aziz is a past president of the Bar Council and the Human Rights Society; Ding is a Kuala Lumpur-based lawyer.

Allow DNA testing for old cases

Brendan Navin Siva

This article first appeared in the New Straits Times on 29 March 2009

IN 1982, Sean Hodgson was sentenced to life in prison in England. He was found guilty of raping and strangling Teresa De Simone in Southampton in 1979. The prosecution's case was that De Simone was brutally raped and killed by the same person.

Hodgson made a confession to his priest that he had committed the crime. His blood type also matched blood samples obtained at the crime scene.

At the trial, his lawyers argued that he had mental health problems and had an obsession with confessing to crimes he had not committed. His lawyers argued that his confession was false and unreliable.

But the prosecution managed to prove its case against Hodgson and he was sentenced to jail for life.

In November last year, Hodgson's lawyers requested that his case be re-examined, using previously unavailable DNA testing on samples collected at the time of the rape and murder. The police and the Forensic Science Service undertook a comprehensive forensic case review.

The results were forwarded to the Criminal Cases Review Commission, an independent agency that investigates possible cases of miscarriage of justice. The commission referred the results to the Court of Appeal.

On March 18, the Court of Appeal quashed the convictions for rape and murder and set Hodgson free. The Court of Appeal found the convictions unsafe as the DNA analysis proved that it was not Hodgson who committed the murder.

This sad and unfortunate tale did not, however, end there. It has subsequently been discovered that the Forensic Science Service -- a government agency -- had apparently been requested in 1998 to retest the samples from this case. But at that time they said that none of the case material had been retained. This was an error. The case material was available. This mistake condemned Hodgson to another decade in prison.

When the news of Hodgson's case was first reported last week, it hardly raised an eyebrow here in Malaysia. But it should have.

It does bring into stark focus three issues that should be on the minds of all Malaysians -- the death penalty; the use of DNA in criminal investigations and prosecution; and the competence and accountability of government bodies and agencies.

The death penalty is brought into stark focus because, in Malaysia, "whoever commits murder shall be punished with death" (under the Penal Code). In Malaysia, many convicted murderers do not now have the luxury of making a request for a retest of the evidence in their cases as they have been executed.

One of the strongest arguments against the death penalty is the fallibility of the criminal justice system.

There is no absolute certainty that a person convicted under the Malaysian criminal justice system is guilty of the crime he or she is accused of committing. In fact, no criminal justice system in the world can offer such certainty.

DNA testing and analysis have resulted in the release of at least 17 death row prisoners in the United States, not to mention the release of countless other prisoners languishing in jail for crimes that were later found, conclusively by DNA evidence, not to have been committed by them.

On March 19, Governor Bill Richardson approved legislation that would see the state of New Mexico join 14 other states in the United States which have abolished the death penalty.

Governor Richardson was previously a supporter of the death penalty. His decision to abolish the death penalty was based on the fact that DNA evidence had shown that innocent people had been sentenced to death in the past.

The other compelling argument against the death penalty is that it has not been shown to deter crime any more than having long-term prison sentences.

More than two-thirds of the countries in the world have abolished the death penalty. The Malaysian government should seriously look into this, educate the people and shape public opinion through detailed and intellectually sustainable research and literature.

We cannot continue to support state-sanctioned killings. Every death sentence carried out in Malaysia diminishes each and every one of us and our humanity.

Hodgson's case also brings into focus the staggering developments in DNA testing and its immense benefits for investigation and prosecution of crimes. The Malaysian government must put in place a carefully thought out and comprehensive piece of legislation to introduce DNA testing and analysis in Malaysia.

The DNA Identification Bill 2008, tabled for second reading in Parliament by the home minister on Aug 26 last year, contained provisions that were not satisfactory.

The government has now postponed the committee stage of the bill's passage and it is hoped that a more comprehensive and fair piece of legislation will surface at a later date.

But the bill does not contain any provisions to retest samples from previous cases at a time when such technology was not available or where it was not utilised.

If the Malaysian government is indeed serious about improving and enhancing the investigation and prosecution of criminals and crime, it must also move quickly to establish a mechanism making a comprehensive forensic case review available to all convicted of crimes in cases where DNA evidence could now potentially exonerate them.

It could also potentially assist in resolving unsolved cases.

A poll conducted in March 2000 found that 92 per cent of Americans would support retesting evidence in cases where DNA technology was not available at the time of conviction. The numbers would be no different if such a poll were conducted here in Malaysia today.

Last, but no less important, the error of the Forensic Science Service in Hodgson's case also deserves special mention. His lawyers are in the process of considering launching a claim against the agency for the damage their mistake has caused him. But can this be done in Malaysia?

Most government agencies and bodies in Malaysia either have absolute immunity from prosecution or have limits as to their exposure to claims arising from the errors they have committed.

Many provisions in Malaysian legislation confer protection on officers of government agencies and bodies so as to take them out of the realm of prosecution in the event they do or do not do something which results in damage or loss to members of the public.

It is time for greater public accountability. This means ensuring that government agencies or bodies take responsibility for their action or inaction when it affects the public adversely.

This in turn would ensure that they take the steps and measures required to ensure safety, efficiency and competence in the provision of public services. The Malaysian public deserves nothing less.

Brendan Navin Siva is a member of the Bar Council. The views expressed are his and not necessarily those of the Bar Council.

It all boils down to our constitutional rights

Raja Aziz Addruse and Ding Jo-Ann

This article first appeared in the New Straits Times on 12 February 2009.

WHAT started as a tussle for political power to govern the state of Perak has blown up into a political crisis. At first blush, the request by the incumbent menteri besar to the ruler of the state to dissolve the state legislative assembly seemed to involve a simple exercise of the ruler's discretion under the state constitution. Issues involving the people's rights, particularly constitutional rights, are never that simple, however, and the responsibility put upon the sultan was an unenviable one.

The request for dissolution was prompted by the defection of three members of the legislature from their respective political parties that formed the Pakatan Rakyat coalition government to become independents, which resulted in Barisan Nasional and Pakatan each having 28 seats in the 59-member legislature.

On subsequently being informed by the deputy prime minister that BN, with the support of the three defectors, had the majority in the assembly, the sultan, after meeting the 31 state assemblymen, was convinced that the menteri besar had ceased to command the confidence of the majority, and withheld his consent; the menteri besar and the members of the state executive council were asked to resign.

There were angry protests, initially from Pakatan supporters who tried to disrupt the swearing-in of the new menteri besar and, later, from BN supporters who denounced Karpal Singh for seeking to challenge the sultan's decision in court.

Karpal and the Pakatan leadership were accused of causing racial discord and of being disloyal to the sultan, and all Malays, whatever their political beliefs, were urged to stand united behind the Malay rulers.

There have been emotional and angry public reactions on what is essentially an issue of constitutional law. Whether or not the sultan had acted correctly in refusing Datuk Seri Mohammad Nizar Jamaluddin's request to dissolve the state assembly and appointing Datuk Dr Zambry Abdul Kadir as the new menteri besar is for the court to decide, if a case is brought before it.

It is also for the court to decide whether or not the sultan's actions can be challenged.

Unless and until declared to be invalid, the decision should be respected. The show of defiance by Pakatan was uncalled for. For their part, the supporters of BN and those who accuse the leadership of Pakatan of treason, or of trying to create racial disharmony for questioning the correctness of the decision, need to inculcate in themselves a belief in the supremacy of the law and to accept that Karpal Singh and Pakatan have every right to take the issue to the courts.

No one exercising his constitutional right of access to the courts should be branded as being disloyal to the rulers or threatened with preventive detention under the Internal Security Act. Was it not the BN government that sought to justify the removal of the personal immunity of the Malay rulers in 1993 on the grounds that no one was above the law?

Leave it to the court to say if Pakatan has a case or not. It does no good to the image of this country for Malays to keep on harping about Malay supremacy.

What is the correct procedure that should have been adopted by the sultan to determine the no-confidence claim in order to exercise his discretion? Those occasions in the past where the procedure adopted by the ruler was used have been when a government had yet to be formed. Where a general election has not returned any one party as having a majority, the only means of determining who commands the confidence of the majority, for the purpose of appointing the leader of the new government, is for the head of state personally to interview the returned members to ascertain their views.

That procedure may not, however, be appropriate where there already exists a government. In that case, a motion of no confidence put before the legislative assembly is the traditional method.

That is what Pakatan contends should have been done before the sultan exercised his discretion. That is the issue the court will have to rule upon.

In all the excitement, little regard has been given to the electorate. Those who voted them in would surely wonder how it is possible for the persons they elected to still claim to represent them in the assembly when they no longer subscribe to the policies and values on the basis of which they were elected.

It is not enough that the election process is clean; those who are elected must also abide by the trust reposed in them by the electorate. Otherwise, the boast that we have here "a democracy which is practiced through elections" will become laughable.

In view of the frequency of such occurrences lately, far from seeking a solution, the BN government seems to encourage these crossovers. Getting people to desert their party or to discard their policies is not what they have been elected for. They have been elected to serve the people. That is what they should do.

So far there has been no political will shown to deal with the serious problem posed by crossovers. The frequency with which it has happened recently and the crisis in Perak have highlighted the need for reform. A constitutional law reform committee, to be made up of persons of integrity and good reputation, should be set up to look into the issues involved. It is time to stop this undesirable practice.

Raja Aziz is a past president of the Bar Council and the Human Rights Society; Ding is a Kuala Lumpur-based lawyer.

A-G must oversee legality of actions

Raja Aziz Addruse and Ding Jo-Ann

THE recent arrests of Teresa Kok, Sin Chew journalist Tan Hoon Cheng and well-known blogger Raja Petra Kamaruddin under the Internal Security Act 1960 (ISA) caused concern that the government could so readily use the draconian law of preventive detention without trial to silence criticisms made against it.

According to the home minister, the journalist had been arrested because her life had been threatened and the police wanted to conduct a comprehensive investigation. She was, it would seem, arrested under the act for her own safety.

On that basis, the arrest of the journalistwas clearly an abuse by the police of their power under the ISA.

Since he is the minister responsible for the police, the home minister is answerable for the wrongdoing of the police.

Kok, too, was released a few days after being detained without any plausible reason being given for her arrest. Raja Petra was ordered to be released by the court on Nov 7.

After the initial arrest under section 73(1) of the ISA, the minister had subsequently made an order under section 8 of the act for him to be detained for two years. This order has now been declared unconstitutional and ultra vires by the court.

The question that needs to be asked is how it is that such powers are now being exercised with what appears to be scant regard for the fundamental rights, liberties and freedoms guaranteed under the Federal Constitution.

Should those conferred with such drastic powers not be advised as to the limits of their power and of their responsibility in the exercise of such power s? The person who is constitutionally entrusted with the function of advising the government and ministers of government on such matters is the attor ney-general. It is his constitutional duty to uphold the Federal Constitution and citizens’ fundamen - tal liberties as guaranteed under Part II of the Federal Constitution.

It would have been the attorneygeneral’s duty to advise the police and the home minister that the reasons they gave for arresting Tan and Kok under the ISA did not warrant the exercise of power under section 73(1) of the ISA.

He should also have advised the police and the minister that there are specific prerequisites which need to be satisfied before the power of arrest and detention under the act can be lawfully invoked.

As is apparent from its preamble, the ISAwas passed by Parliament for the specific purpose of combating “a substantial body of persons” intent on overthrowing the lawful government of this nation by unlawful or unconstitutional means.

The attorney-general should have, in relation to the two-year detention of Raja Petra, also advised the minister that Raja Petra, outspoken though he may be, cannot by himself be considered to be “a substantial body of per sons” and that the order made by the minister for Raja Petra’s detention was, therefore, beyond his power s.

The attorney-general is essentially responsible for overseeing the legality of all government actions and ensuring that they are in accordance with the Federal Constitution, international law and domestic law. It is a heavy responsibility with potentially serious and far-reaching conseq u e n c e s.

In the United Kingdom, for example, the opinion of Attorney-General Lord Goldsmith in 2003 that there was legal basis for an invasion of Iraq heavily influenced the British Parliament’s decision to go to war.

As the attorney-general’s office is also responsible for the drafting of all federal legislation, it is also his duty to ensure that in the drafting of such legislation the fundamental liberties enshrined in the Constitution are upheld.

It would be part of his duty to point out any laws which are inconsistent with those fundamental rights and to recommend that the offending laws be amended or repealed.

For example, the Printing Presses and Publications Act 1984 made it illegal to possess or use a printing press without a licence and to publish newspapers without a permit from the home minister.

The dissemination of information via the printed media was essentially placed under the complete control of the home minister. Further, from 1987, the minister’s decision on the granting, suspension and revocation of permits was removed from the review of the courts.

This negates the media’s freedom of speech, as enshrined in Article 10 of the Constitution, since the home minister has the power to revoke a newspaper’s permit should it publish articles critical of the government and that newspaper would be left with no legal recourse.

Another example is the Official Secrets Act 1972 which makes it an offence to disseminate information classified as an official secret. Any government document may be classified as an official secret by any minister, chief minister or any public officer authorised to do so.

These decisions to classify a document secret are also exempt from review by the courts. Although restrictions on the freedom of speech can be made for reasons of public order or morality, there is again no check and balance or recourse to the courts should any government document be declared an official secret merely because the disclosure of its contents would prove detrimental or embarrassing to the government.

Yet another example is the Police Act 1967 that places restrictions on the freedom of peaceful assembly by requiring any gathering of three or more persons to obtain a police permit, failing which the gathering could be held to be an “unlawful assembly”.

In 1988, major amendments came into force, making it an offence not only for persons to take part in an unlawful assembly but also to “at t e n d ” and even more onerously, “to be found at” such assemblies.

Innocent passers-by can, therefore, be charged with an offence merely by being present.

The attorney-general should have called the government’s attention to the potential injustice that could be caused by these provisions and even recommended the amendment of the Police Act to bring it more in line with Article 10 of the Federal Constitution.

The Police Act should be amended as in essence, it is in conflict with the right to peaceful assembly guaranteed under the Federal Constitution.

This was the recommendation of the Human Rights Commission of Malaysia in its report on “Freedom of Assembly” published in 2001.

The Attorney-General’s Chambers appears not to have acted on this recommendation to ensure that the provisions of the Police Act are consistent with this right.

The attorney-general, as the chief legal adviser of the government, obviously wields enormous influence in the country. He can influence government actions by providing advice on their legality and is also responsible for the drafting of laws by which the country is governed.

At the moment, there is no adequate check and balance on the exercise of these vast powers granted to him under the Federal Constitution.

It is most desirable that such an important position be open to scrutiny to ensure proper accountability in the exercise of its functions.

It is perhaps time for the attorneygeneral once again to be a member of the cabinet so that his advice is listened to and heeded by his cabinet colleagues and in order that he be made answerable to Parliament, just like any other minister. This is the case in many other Commonwealth countr ies.

In the United Kingdom, for example, Goldsmith was made to answer to Parliament in 2007 on his constitutional role and his legal advice to the government. Such a practice is beneficial as it would encourage the government to think carefully before enacting laws of dubious constitutional consistency or carrying out potentially unlawful acts.

This is the second of a two-part series. Part One appeared on Nov 9. Raja Aziz Addruse is a former Bar Council president and former president of the National Human Rights Society (Hakam). Ding Jo- Ann is a Kuala Lumpur-based lawyer. This article was previously published in the New Straits Times on 16 November 2008.

Accountability and the A-G

Raja Aziz Addruse and Ding Jo-Ann

THE recent challenge by Datuk Seri Anwar Ibrahim's defence team against the validity of the Attorney-General's certificate to transfer his sodomy case from the Sessions Court to the High Court has again highlighted the need to seriously examine the role of the Attorney-General. The Attorney-General, it was argued, was not competent to issue the certificate as a report, which had been made against him for alleged tampering with evidence in Anwar's first sodomy case in 1988, was still being investigated.

The Kuala Lumpur Sessions Court ruled last Friday that the certificate was invalid.

The scope of the Attorney-General's powers in Malaysia has long been a subject of debate and controversy. He is the chief legal adviser to the government and is responsible for advising ministers involved in legal proceedings in their official capacity.

But as public prosecutor, he is also entrusted with power, which he uses at his discretion, to start, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.

His dual role has posed a real problem. A conflict of interest is bound to arise if he has to institute criminal proceedings against members of the government.

The ongoing Altantuya Shaariibuu prosecution, surrounded by rumours involving important political figures, is a case in point.

Some countries in the Commonwealth, such as Australia and Canada, do not have such a problem. There the job of reviewing evidence, and beginning and conducting prosecution of offences, is entrusted to a Director of Public Prosecutions.

Since he is unencumbered by the sort of duties and functions the Attorney-General has, he is kept away from direct government influence and is able to act with impartiality in assessing whether or not to prosecute a case.

His decision is based on whether there is a realistic prospect of conviction on the evidence available and whether it is in the public interest for the prosecution to begin.

The Attorney-General in such a system would be a government minister. This would remove the structural defect in the present Malaysian system which constantly invites accusations that the Attorney-General is motivated by bias or is being selective in instituting criminal proceedings.

If he were made a part of the political party in power, the Attorney-General would not need to pretend to be neutral.

Though not directly involved in deciding whether to institute criminal prosecutions, he should be responsible for overseeing and superintending the prosecution services of the country and should answer to Parliament for the conduct of the Director of Public Prosecutions and of his department.

There is currently no formal mechanism requiring the Attorney-General to account for his conduct in relation to prosecutions of criminal proceedings. In spite of the wide powers he wields, he has no duty to report to the prime minister, cabinet or Parliament.

There has been no call for him to account for the failure of a number of high-profile prosecutions, which commenced with much fanfare but ended up being a waste of public funds.

Last year, Tan Sri Eric Chia, the former managing director of Perwaja Steel, was acquitted after 43 days of trial without his defence being called.

In acquitting the accused, the presiding High Court judge heavily criticised the conduct of the prosecution, especially their failure to call several key witnesses who had obvious knowledge of the material elements of the case.

With reference to particular key witnesses from Japan, the judge questioned whether it was the Japanese witnesses who were "reluctant" to come or "the prosecution was the one reluctant to bring them here".

The prosecution of Koh Kim Teck, a businessman, and his two bodyguards, who were charged with murdering 14-year-old Chinese national Xu Jian Huang, and who were acquitted in 2005, is another case in point.

After a trial lasting 36 days and with 39 prosecution witnesses having given evidence, the presiding judge found that the prosecution had not brought forward any evidence which could implicate the accused in the murder and that there had been no "prima facie" case made out to warrant the defence being called to answer the charge.

The prosecution had apparently omitted to call material witnesses, including the investigating officer for the case and Koh's driver who had reportedly given a cautioned statement that he had seen both bodyguards throw Xu into the swimming pool where he was eventually found. Two other material witnesses who were present in the house were also not called.

Yet another was the prosecution for the murder of Noritta Samsudin, where the accused was acquitted after 29 days of trial. The prosecution appealed against the acquittal right up to the Federal Court.

In dismissing the appeal, the Federal Court noted that there was a gaping hole in the prosecution's case, where it failed to sufficiently account for the likelihood of there being another person present at Noritta Samsudin's condominium unit who could also have committed the crime. No one else has been charged for the murder.

Any discussion on expensive and long-running criminal trials would not be complete without reference to the Irene Fernandez trial which spanned seven years and took over 300 days to complete.

It is still not over for the Tenaganita director, who was convicted in 2003 of publishing false news about the ill-treatment of detainees in camps for illegal immigrants. Her appeal against this conviction to the High Court has been the subject of numerous delays and has yet to be heard.

The Altantuya Shaariibuu murder trial will also go on record as one of the longest trials in Malaysian history. 

After more than 150 days, Abdul Razak Baginda was acquitted of abetting the murder and discharged on Oct 31, while the two police officers charged with her murder have been called to enter their defence.

As it is the taxpayers' funds that ultimately pay for all criminal prosecutions, they have a vested interest in knowing how such cases, which appear to be ill-prepared, can be brought to trial. 

It is imperative that the Attorney General's wide powers be subject to close scrutiny and not be permitted to be exercised arbitrarily.

If the government is truly serious in wanting to improve and restore public confidence in the administration of justice in this country, it must be prepared to review the presently unfettered powers of the Attorney-General.

Raja Aziz Addruse is a former Bar Council president and former president of the National Human Rights Society (Hakam). Ding Jo-Ann is a Kuala Lumpur-based lawyer. This article was previously published in the New Straits Times on 9 November 2008.

Making Malaysia's Parliament top class

Andrew Khoo Chin Hock

THERE has been much mention recently of the desire to make the Malaysian Parliament a "world-class Parliament". What would this entail?
Firstly, backbenchers should be given an increased role through the setting up of parliamentary committees to oversee the work of the government.

The Standing Orders of the Dewan Rakyat provide for five select committees -- Committee of Selection, Public Accounts Committee, Standing Orders Committee, House Committee and Committee of Privileges.

The Standing Orders do provide for special select committees to be appointed by order of the Dewan Rakyat.

In the previous Parliament, we had select committees on unity and national service, on integrity, on code of ethics for members of parliament and to review proposed amendments to the Penal Code and Criminal Procedure Code.
Such select committees have restricted terms of reference and a limited time frame.

They tend to focus on particular public issues to gather information and make recommendations on the particular subject for which they were formed.

They do not, by their nature, act as an ongoing check and balance for the workings of government.

All but one of the five permanent committees focus on internal matters of the Dewan Rakyat.

The Public Accounts Committee reviews the functions of the Executive branch of government, especially the use of public funds.

As parliamentary time is limited, the Public Accounts Committee is only able to review a handful of matters during any one session of Parliament.

Partly because it is the only permanent committee with a public function, its functions and the matters brought before it receive more attention than they deserve.

The issues tend to be sensationalised and, therefore, what has been brought before it has always been viewed as politically sensitive.

This over-sensitivity can be seen in the fact that the government is not inclined to allow the opposition leader to be its chairman, as is the practice in mature parliamentary democracies.

What is needed are permanent committees of the Dewan Rakyat to oversee each ministry, providing the needed check and balance by the Legislative over the function of the Executive.

This is done in the Parliaments of Australia, India, New Zealand and the United Kingdom. among others, as well as in the US Congress. We have all seen, for example, members of the US cabinet and even the chairman of the US Federal Reserve Bank testify before the Congress.

Ideally, there should be one permanent committee for each ministry (unless two or more areas can sensibly be incorporated within the purview of a single permanent committee).

Standing Order 83 empowers a select committee to call for hearings and investigate matters falling within the ambit of the ministry it is to oversee.

It would be the permanent committee's responsibility to vet proposed legislation and amendments, hold public sessions where interested parties can give testimony on matters of public policy and have ministers appear to answer questions and provide explanations.

It would receive oral and written submissions. Witnesses could be summoned to testify before such permanent committees on pain of being found in contempt of Parliament. Potential whistleblowers could be granted immunity from legal action.

In a Westminster-style parliamentary democracy, the Executive has wide-ranging powers but the Legislative should not act as a mere rubber stamp.

Parliament must have and exercise a supervisory function. However, this role has not developed in a significant way.

To his credit, soon after Parliament was convened following the 2004 general election, the prime minister said that one of his objectives was to strengthen the Dewan Rakyat.

The establishment of permanent committees would help achieve this objective.

Secondly, we need to have much better and more focused scrutiny of proposed legislation. This is where having permanent committees would be extremely beneficial, instead of having a committee of the whole house, which is the current practice.

However, for this to succeed, the government would have to stop classifying parliamentary bills as official secrets and withholding them from open distribution until first reading.

Members of the public and parliamentarians should have the opportunity to study proposed legislation properly.

Given that we are entering the era of bilateral free trade agreements which may eventually contain commitments giving our trading partners the opportunity to be informed of, review and comment on proposed changes to legislation that may affect them, we should commence this change of culture by being open to the Malaysian public first.

By strengthening the power of backbenchers (both from the government and the opposition) to scrutinise legislation and question ministers, senior civil servants, captains of industry and other decision-makers, we will make the Executive more transparent and accountable.

It would make for an active and participative Legislative working together with the rakyat for the betterment of our country.

The third recommendation is to share the leadership of Parliament. With Barisan Nasional (BN) holding only 140 seats in the Dewan Rakyat and Pakatan Rakyat (PR) holding 82 seats, there is a perception of a greater sense of balance.

Now, it is the turn of the Parliament as an institution to show its maturity in line with the aspirations of a more demanding electorate.

Regardless of which political party (or coalition of parties) helms the government of the day, Parliament should operate on a level playing field.

As it is not inconceivable that the BN of today may be the opposition of tomorrow, it behoves BN to work with PR to progress towards a stronger and more mature Parliament.

The Federal Constitution does not mention the office of the leader of the opposition, although it is recognised in Standing Order 4A.

This is an anomaly which should immediately be put right. Some state governments have amended or are in the course of amending their respective state constitutions to do this at the state assembly level.

Currently, Article 57 of the Federal Constitution provides for the Dewan Rakyat to have one speaker and two deputy speakers.

To better reflect the political plurality in the country, as seen from the share of the popular vote obtained by both the BN and the PR respectively, one deputy speaker of the Dewan Rakyat ought to come from the opposition.

Given the potential for a possible change in the majority party in the Dewan Rakyat, this practice of selecting one deputy speaker of the Dewan Rakyat from among the ranks of the federal opposition would serve to entrench the concept of a shared leadership of Parliament.

The speaker and deputy speakers are expected to be neutral and non-partisan.

Indeed, once appointed, they must forget their political affiliation and become impartial umpires in the Dewan Rakyat, presiding and making rulings without fear or favour.

A total shutout of one side of the country's political representation from leadership in Parliament should be avoided at all costs.

Such a practice, if continued, would be detrimental to the full and fair workings of Parliament and a denial of recognition of the will of the rakyat.

It would also be unfair to the minority party, whichever that party might be.

Andrew Khoo Chin Hock is co-deputy chair of the Bar Council's Human Rights Committee. This article was previously published in the New Straits Times on 12 July 2008.

Understanding 'special position' of Malays

Raja Aziz Addruse and Helen Ting

THE electoral results in March have stirred up great hope among many that it signals the birth of a "new politics", whereby race-based rhetoric seems to have faltered as the magic formula for a big win by the Barisan Nasional.

Political observers are impressed by the fact that the proposal to replace the New Economic Policy (NEP) with needs-based affirmative action did not appear to be a political liability for Parti Keadilan Rakyat among the Malay voters. Those on the other side of the camp, on their part, talk about the loss of ketuanan Melayu for the same reason.

Public discussions on the abolition of the NEP link it up from time to time with Article 153 of the Federal Constitution regarding the special position of the Malays and natives in Sabah and Sarawak.

At times, it was even suggested that the abolition of affirmative action policies for the Malays was impossible due to the need to amend Article 153 of the Federal Constitution.

Closely related to this discussion is the charge of Malay ultra-nationalists that questioning the "special position" of the Malays amounts to challenging the ideology of ketuanan Melayu.
There appear to be a lot of myths surrounding "taboo notions" such as the Constitutional provisions for the "special position".

Does doing away with the NEP necessarily mean challenging Article 153? Should the constitutional provisions regarding the "special position" be understood as the symbolic affirmation of ketuanan Melayu? What was historically the understanding regarding the "special position" in any case?

Written records of the inter-party discussions of the Alliance leaders indicate that the Constitutional provisions on the "special position" were understood more as a protective measure for the Malay community which was then socio-economically disadvantaged.

Significantly, in their oral submission to the Reid Commission, the Alliance leaders requested the insertion of a Constitutional provision for the review of the "special position" of the Malays 15 years after independence.

Though subsequently removed, this implies that the Alliance leaders themselves did not intend the provision to be a permanent feature of independent Malaya.

This perspective is also clearly articulated in the recent biography of the late Tun Dr Ismail Abdul Rahman, who even expressed his belief that, "as more and more Malays became educated and gained self-confidence, they themselves would do away with this 'special position' because in itself this 'special position' is a slur on the ability of the Malays and only to be tolerated because it is necessary as a temporary measure to ensure their survival in the modern competitive world".

Yet, why has it come to be interpreted as a symbol of Malay hegemony and a permanent, even defining, feature of the Malaysian nation?

We have the familiar story of the racial riots of May 13 1969, which subsequently led to the imposition of a prohibition on the questioning of a number of Constitutional provisions including Article 153.

Meantime, the NEP was formally launched, setting clear objectives to be achieved within two decades, such as attaining a more balanced ethnic distribution of occupational engagement and for Malay share in the ownership of business to reach 30 per cent by 1990.

While some argue that the NEP officially ended in 1990, many of its wide-ranging economic and educational policies, including the popularly euphemised "quota system", remain in place till today in all but name.

Over the decades, the comprehensive affirmative action programmes have transformed the socio-economic status of the Malay community as a social group, even though many poor Malays may not have benefited from it.

Nonetheless, it was not successful in uplifting the overall socio-economic conditions of natives in Sabah and Sarawak and the Orang Asli in Peninsular Malaysia (who are intriguingly not mentioned explicitly as being included within the provisions of the "special position"), as well as the poor in other communities.

More insidiously, the initial socio-economic justifications for these measures have over time shifted to the argument of "indigenous entitlement" or right. It is only when affirmative action came to be viewed as a form of "indigenous entitlement" that the call for reforms or abolition of the NEP has been interpreted as a challenge to ketuanan Melayu.

Does a revamp of the NEP necessarily entail the amendment of Article 153 of the Federal Constitution?

Article 153 addresses the issues of reservation of quotas in respect of scholarships and other educational facilities or training privileges, positions in the federal public service and the granting of permits or licences for the operation of any trade or business for Malays and the natives of Sabah and Sarawak.

Nonetheless, figures for the quota are not specified, but are left to the discretion of the Yang di-Pertuan Agong as he deems "reasonable". In addition, clause 1 of the Article entrusts to the Yang di-Pertuan Agong the responsibility to also safeguard the "legitimate interests of other communities" in the same breath as safeguarding the special position of the Malays and natives in Sabah and Sarawak.

Notable is the fact that five out of the 12 clauses of Article 153 set out to limit the scope of its application.

They provide that the Constitutional provisions with respect to the special position should not deprive or restrict other communities of their legitimate interests and continued enjoyment of the same public office, rights, grants, facilities or privileges which might reasonably be expected in the ordinary course of events.

It could be argued that in order to respect the Constitutional spirit, the translation of this so-called "special position" into practical measures by the policy-makers should judiciously ensure that they are perceived as "reasonable", equitable and just by society as a whole.

The original spirit of the NEP, as defined by its twin objectives of the restructuring of society and the eradication of poverty regardless of race, abides by this same sense of fair play and social justice.

While Article 153 does provide the Constitutional basis for affirmative action in favour of the Malays and natives in Sabah and Sarawak, there is no ground to suggest that doing away with the NEP necessarily requires the amendment or repeal of Article 153.

While we cannot stop politicians with vested interests from linking up the NEP and Article 153 with the concept of ketuanan Melayu, we should at least be able to evaluate their discourse for what it is worth.

And it is apparent from a study of Article 153 of the Federal Constitution that such a linkage has no real basis whatsoever.

Raja Aziz Addruse is a former Bar Council president and former president of the National Human Rights Society (Hakam). Helen Ting is a research fellow at the Institute of Malaysian and International Studies (Ikmas), Universiti Kebangsaan Malaysia. This article was previously published in the New Straits Times on 22 June 2008.