Thursday, November 2, 2006

A system that breeds misdeeds and corruption

I welcome the statement from the Menteri Besar of Selangor, Datuk Seri Dr Mohd Khir Toyo yesterday (“Khir: Zakaria told to resign before audience” - NST, Oct 31) that the MB wanted more professionals to serve on local councils.

However, he said the Local Government Act 1976 (“Act 171”) had to be first amended.

In my opinion, no amendment to Act 171 is required in order to appoint professionals who are residents of the local authority area as councillors. Section 10(2) of Act 171 is clear, that is, the state authority may appoint persons who in its opinion have achieved “distinction in any profession”.

If the Selangor state authority is unsure of this, then it should consult the National Council for Local Government set up under article 95A of the Federal Constitution.

The Article states that the federal government or any state government may consult the National Council for Local Government in respect of any matter relating to local government and its duty is to advise that government on any such matter.

Article 95A(5) also provides that it is the duty of the National Council for Local Government to formulate from time to time in consultation with the federal government and the state governments a national policy for the promotion, development and control of local government throughout the Federation and for the administration of any laws relating thereto; and the federal and state governments shall follow the formulated policy.

In fact, the National Council for Local Government is no ordinary body as it is chaired by the deputy prime minister and each state is often represented by its Chief Minister. This is the body, in my view, which should immediately sit down and formulate guidelines on the appointment and re-appointment of councillors within the ambit of section 10(2) of Act 171.

As I said in my article on Sunday (“Do laws grind the poor, and rich men rule the law?”), any state government which decides not to comply with the policy formulated by the National Council for Local Government may risk losing financial grants and loans from the federal government.

Further, if state governments cannot get their act together in effectively supervising and managing their local authorities, then the time will come when the federal government may have to assume more power and control over them.

Provisions are provided by removing ‘local government’ matters from the state list under the Ninth Schedule to the Federal Constitution and placing it under the concurrent list.

In any event, appointing professionals such as architects, engineers, surveyors, lawyers and doctors who are free from any political affiliations or personal interest to sit on the council is a step in the right direction.

It will not only form a check and balance on the manner in which powers and duties of local authority are carried out, but it also promotes good governance in local administration. It is akin to appointing independent directors to public listed companies.

Of course, professionals are not free from some of the perils of holding public office – the temptation of succumbing to corruption and self-aggrandisement.

To avoid accusations of favouritism or other sorts of improper conduct in appointing certain professionals, it is always good practice to first get their respective professional organisations to make the recommendations.

Again, the test is that the person to be appointed must have achieved professional distinction – and not those professionals who are already on the advisory panel of the local authority.

But, in practice, many professionals will be unwilling to serve because it means that their firms are prohibited from acting for the local authority, and they may also have to recuse themselves each time a matter handled by their firm arises for deliberation. This is provided for in section 35 of Act 171 which reads: “No councillor shall by himself or his partner or agent act in any professional capacity for or against the local authority of which he is a councillor.”

All said, it is still a good move to allocate two or three seats in each local authority for independent persons, such as professionals, to sit on the councils.

In the case of Datuk Zakaria Mat Deros, I could not agree more with the view of Umno vice-president, Tan Sri Muhyiddin Yassin (‘He may have tainted party’ - NST Oct 31), that elected representatives should not hold the post of municipal councillor. (Zakaria is also the state assemblyman for Port Klang.)

Muhyiddin cited Johor as an example where if one was an assemblyman or Member of Parliament, there was no necessity for him to sit in municipal councils.

He went on to say that by allowing others, such as party leaders, from the lower ranks who are not elected representatives to be local councillors, there would be better division of labour, more focus on responsibilities and no conflict of interest.

Muhyiddin was most spot-on in this issue, which is one of a conflict of interest.

This reminds me of 1980 when the menteri besar and state government of Perak were taken to court by an opposition leader, Lim Cho Hock, because the Perak state authority appointed the menteri besar as president of the Ipoh Municipal Council.

It was contended that the appointment would put the menteri besar in a conflict situation when it came to the latter exercising his powers under sections 10(7) and 165(1) of Act 171. Even though Lim failed in the action, the practice of a menteri besar also holding the post of president of municipal council, since that case, has always been frowned upon.

Article 64(1)(b) of the Selangor state constitution provides that a state assemblyman is disqualified if he holds an ‘office of profit’.

Even though an election court had ruled before that holding a position in the local authority did not fall within the meaning of ‘office of profit’ (see Lee Hie Kui @ Eric Lee v Song Swee Guan & Anor, 1998), it is, I am sure, the general view that the practice of vesting too much power in one person should always be discouraged as one should always take heed of the oft-repeated words of Lord Acton: “Power tends to corrupt, and absolute power corrupts absolutely.”

Moreover, the state assemblyman may find himself in a conflict situation if the conduct of the local authority of which he is also a councillor is debated in the State Legislative Assembly. Again, this can be another policy which the National Council for Local Government should formulate.

It is the hope of many that all local authorities will practise good governance when administering the affairs of their local authority area, always asking whether their actions will protect and benefit the local community.

May they always be guided by the definition of good governance enunciated by the United Nations Economic and Social Commission for Asia and the Pacific:

“Good governance has eight major characteristics. It is participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law. It assures that corruption is minimised, the views of minorities are taken into account and that the voices of the most vulnerable in society are heard in decision-making. It is also responsive to the present and future needs of society.”

Monday, October 30, 2006

Do laws grind the poor, and rich men rule the law?

I have written before that “be you never so high, the law is above you” (NST, Jan 29).

So it is always dispiriting to find out whenever this fundamental principle of the rule of law is disregarded by the influential, rich, well-connected and the powerful with impunity.

The topical case before us is the two councillors of the Klang Municipal Council (MPK) who were reported to be erecting their mansions without any approval.

It was reported that for this contravention of planning and building laws, councillor Datuk Zakaria Mat Deros was only slapped with a fine of RM24,000 which has been described as the maximum fine permitted under the law.

Zakaria, who is also the Port Klang state assemblyman, was reported to have blamed his former architect for not first getting the necessary approval.

It was also reported that Zakaria also owns a restaurant in Port Klang which had recently been found to be unlicensed, and that council enforcement officers actually demolished a rival restaurant for minor infractions but took no action instead against Zakaria’s unlicensed restaurant.

Meanwhile, the other MPK councillor, Mazlynoor Abdul Latiff, openly admitted that he was also building his mansion at Kampung Raja Uda in Jalan Lengkungan without any approval.

He even had the audacity to claim, as reported, that other councillors had also built their mansions, much bigger ones, within the same area without building plans.

Mazlynoor revealed that he had, in fact, submitted a plan to MPK’s planning department in 2005, but it was returned to him as it did not conform to the sewerage infrastructure.

He added that as it involved costs, he went ahead with the construction and that he would submit the plans after Hari Raya.

So the fact remains that the development and construction of his mansion took place without any approval.

At the same time, the Menteri Besar of Selangor Datuk Seri Dr Mohd Khir Toyo had also referred the matter involving the appointments of Zakaria, his son Zainuri and his daughter-in-law Roselinda Abdul Jamil as Klang councillors to the Selangor Umno liaison committee.

This whole affair about the MPK councillors is now not only becoming a farce, but has raised three very troubling issues:

• Is the RM24,000 fine the only punishment MPK can mete out to Zakaria?

• Why do these two councillors have such scant regard for the laws which they are actually entrusted to enforce?

• Is there something wrong with the law, particularly in the manner in which we regulate our system of local government?

In my opinion, a fine of RM24,000 is not the only penalty which can be imposed against Zakaria for contravening the laws especially when it was also reported that no planning permission had been given.

It was therefore surprising that MPK did not take any action against Zakaria either under the Street, Drainage and Building Act 1974 (“Act 133”) or the Town and Country Planning Act 1976 (“Act 172”).

It appeared that, instead, MPK decided to fine Zakaria under paragraph 17 of the First Schedule of the Uniform Building By-Laws 1984, a subsidiary legislation made under Act 133 which reads:

“In all cases where work has been commenced before plans have been approved or a permit obtained a fee equal to ten times that specified in the relevant preceding paragraph may be charged.

“The payment of this enhanced fee will not exempt any person from being prosecuted by the local authority should it decide to do so.”

The paragraph says that the payment does not prevent MPK from prosecuting Zakaria.

The law governing the development of land and erection of buildings is contained in Acts 133 and 172.

Generally, before anyone develops his land, he is required to obtain a planning permission under Act 172.

The planning permission is usually valid for a period of 12 months during which time the landowner is required to fulfil the conditions attached to the approval, unless it is extended.

Having obtained the planning permission does not entitle the landowner to commence construction of his building. He is also required to obtain approval to the building plans and specifications under Act 133.

Section 26(1) of Act 172 provides that any person who commences, undertakes or carries out any development or permits the same to be done without any planning permission commits an offence and is liable, on conviction, to a fine not exceeding RM500,000 or to imprisonment for a term not exceeding two years or both.

In the case of a continuing offence, a further fine may extend to RM5,000 for each day during which the offence continues after the first conviction for the offence.

Sub-section (2) also states that “unless the contrary is proved, the owner of the land in respect of which any act that constitutes an offence under subsection (1) is done shall be deemed to have permitted the doing of that act.”

Act 172 also allows the local authority which is the local planning authority to require the land to be restored as far as possible to the condition it was in before the development was commenced.

Section 72 of Act 133 also provides that where the local authority is satisfied that a building has been erected or is in the course of erection without the building plans and specifications being approved by the local authority, the local authority may require the landowner to do any one or more of the following acts:

(a) to stop work;

(b) to demolish such building within such time as the local authority may specify; and

(c) to take steps as may be ordered by the local authority.

It follows that MPK obviously owes the public an explanation as to why it has not invoked the above-mentioned sections of Acts 133 and 172.

I am sure the public would like to know whether a stop work order or demolition order has been issued; and what steps MPK has ordered these two councillors to take.

Without a satisfactory explanation, it will not stop the public from asking whether MPK is practising double standards when it comes to enforcing these two pieces of legislation against a public perception that local authorities have no qualms whatsoever to tear down buildings and extensions of ordinary folk and even places of worship if they have been erected without prior building plan approval.

Is this another case of what Oliver Goldsmith would describe: “Laws grind the poor, and rich men rule the law”?

Why do these two councillors have such scant regard for the laws which they are actually entrusted to enforce?

Mazlynoor’s response is rather disturbing. This law enforcer seemed to be saying that there is nothing wrong with what he did when there are so many other VIPs also doing it.

Such a response is indeed unbecoming of a councillor who has been entrusted to enforce the very same law which he showed no regret whatsoever to have breached.

There just cannot be one law for the rich and connected, and another for the poor and unconnected.

Everyone is entitled to be treated equally in his dealings with the public authorities.

If this persists, this case will remove any deterrence against anyone who disobeys the law.

This whole affair now reminds me of the words of Shamsul Hoque, the director of Legal Education and Training Institute of the Bangladeshi Bar Council who once described law as a scarecrow. This was what he wrote in 2003:

“The scarecrow is put in a cornfield to frighten birds away. The innocent, simple birds are really scared and they don’t dare to come near the field. But some birds strong and greedy do not get frightened. They are often found not only to come near the scarecrow, but also to perch on its arms and head to rest after eating the grain to their hearts’ content. Seeing these birds enjoying food and security, some other birds ask themselves, ‘They are having good meals. The scarecrow does not scare them. Why should we be fools and starve?’ So all the birds join in the feast.

“A law is made with the express intent to help people in getting justice through a legal system, thereby aiming to achieve the ‘greatest happiness of the greatest number’. But very often the law fails to serve this purpose.

The innocent, simple, illiterate and the poor cannot access legal procedure because it is highly expensive, complicated and time-consuming to them.

So they look upon law from a distance as a frightening scarecrow.

“On the other hand, some people in society like those strong, greedy birds, tame, twist or tarnish a law and use it for their own benefits. Some others follow suit and seize the opportunity, too.

Thus the law is made into a no-more frightening, rather a tattered scarecrow.

“It is this second group that is mainly responsible for making many laws ineffective. Not only that, they make law an accomplice in fulfilling their greed for power and possessions.”

Is there something wrong with the law, particularly in the manner in which we regulate our system of local government?

A councillor is indeed a very important person. He forms part of the local authority which exercises its powers and performs its duties under the Local Government Act 1976 (“Act 171”). As the local authority is also the approving authority for planning permission under Act 172 and building plans and specifications under Act 133, he is therefore a member of the decision making body.

In discharging his duties, he is well protected by law. Section 125 of Act 171 and section 95 of Act 133 grant him general immunity against any personal action, liability, claim or demand whatsoever.

However, it is the state government and not the federal government, that is, the Ministry of Housing and Local Government, that has supervisory control over the local authority.

Under Act 171, the federal minister is only required to be consulted by the state authority under eight situations:

(1) declare any area in such state to be a local authority area;

(2) assign a name to such local authority area;

(3) define the boundaries of such local authority area;

(4) determine the status of the local authority for such local authority area and such status shall be that of a municipal council or a district council;

(5) change the name of any local authority area;

(6) change the status of a local authority area;

(7) alter the boundaries of any local authority area; and

(8) merge two or more local authorities into one local authority.

But the main reason why state governments and local authorities do take into account any advice given by the federal government is simply because of financial consideration as financial grants and loans are provided by the federal government to the local authorities.

Also, the federal government and the state governments form the National Council for Local Government set up under Article 95A of the Federal Constitution and which is chaired by a federal minister.

It follows that it is the state authority, which is essentially the state executive council, that has control over local authorities, and the Menetri Besar, being its head, actually calls the shots.

Section 9 of Act 171 provides that the state authority may from time to time give the local authority policy directions of a general character relating to matters which appear to the state authority to affect the interests of the local authority area, and the local authority has to give effect to all such directions as soon as possible.

Section 10(7) of Act 171 then provides that if the mayor or president of the local authority does not agree with the other councillors as to the exercise of any of his powers or of the powers of the local authority, he shall refer the matter to the Menteri Besar whose decision shall be final and binding on the local authority.

As regards the appointment of the the Zakaria family members as MPK councillors, section 10(2) of Act 171 provides that councillors of the local authority shall be appointed from among persons who are ordinarily resident in the local authority area and who in the opinion of the state authority:

(a) have wide experience in local government affairs or;

(b) who have achieved distinction in any profession, commerce or industry; or

(c) are otherwise capable of representing the interests of their communities in the local authority area.

Therefore, even though councillors are political appointees, the state authority must adhere to these criteria when appointing them.

The interests of the local community is of paramount importance and the most important criterion is whether the appointees are capable of representing the interests of the local community.

The government must be mindful of this; otherwise there is nothing to prevent a ratepayer later from challenging any appointment.

It follows that Dr Khir should have perhaps first referred the matter to the state executive council instead of his party.

While politically this may make sense as councillors are usually local political leaders who wield considerable grassroots support, legally it is the state executive council which should decide who should be appointed and re-appointed.

However, so long as we continue to read about these unhealthy antics of local councillors, the calls of bringing back local elections will grow louder. But is this a solution?

It is said that while elections may bring about transparency and accountability at local politics, a local authority controlled by the opposition may find it difficult to run its local authority area as many local authorities cannot survive without financial grants from the covernment as revenue collected from the local assessments is just not enough.

I am of the view that the time has come for the government to look again at Act 171 to address the many weaknesses in the Act so that the system of local government can meet up with the ever-demanding needs and expectations of our citizenry today.

The last time a Royal Commission was set up to study the system of local government was in 1965 which produced the Athi Nahappan Report in 1969 that led to Act 171.

Perhaps, as a start, section 10(2) can be amended to require the state authority to consult either the minister or the National Council for Local Government in the appointment and re-appointment of local councillors.

Sunday, August 6, 2006

Worry that some parents may forgo responsibility

The Star
By Soo Ewe Jin

ROGER Tan, who is a member of the Bar Council, said it is understandable that concerns have been raised on the need to amend Section 95 of the Law Reform (Marriage & Divorce) Act 1976.

This was after the Federal Court ruled in the Karunairajah case in 2004 that the word disability in this section only covers “physical” and “mental” disability and cannot cover financial dependence.

The court held that there was no legal basis for interpreting the exceptions in Section 95 to include financial dependence for the purpose of pursuing tertiary and/or vocational education after the “child” had completed the age of 18.

It overruled the Court of Appeal which had attempted to extend the obligation of the parent after the child turned 18 by using a creative interpretation of “disability” to include financial dependence as well.

The Federal Court ended by saying: “A case had to be decided according to the law as it stands, irrespective of a judge’s personal view on it and moral obligations can never take precedence over the law. What the law should be is a matter for the legislature.”

Tan pointed out that despite the court’s interpretation of Section 95, it was clear from other provisions and other laws that the age of majority is not so clear-cut.

Under Section 3 of the Guardianship of Infants Act 1961, for example, the guardian is responsible for the support, health and education of the child until he/she reaches 21.

Tan argued that the Law Reform (Marriage & Divorce) Act 1976, which limits the maintenance of a child only up to 18 years of age, is thus contrary to the Guardianship of Infants Act and unfairly discriminates against children of divorced parents.

On a more obvious practical level, many people are aware that income tax provisions allow taxpayers to continue to claim relief (at a higher rate) for children beyond 18 years of age if the children are pursuing tertiary education thus acknowledging the responsibility of a parent to maintain his/her children beyond the age of 18.

Furthermore, in other provisions of the Law Reform Act 1976 a father’s responsibility for his child in other areas extends beyond 18 to 21 years.

For example, a person under 21 is still required to obtain his father’s consent if he/she wants to marry.

It is because of such uncertainties that lawyers feel the legislature should step in to amend Section 95 to compel the obligation to pay maintenance for children beyond 18 if they are receiving education or training.

Otherwise, parents can refuse to do so, seeking refuge behind the Federal Court decision of Karunairajah which has stated in no uncertain terms that parents are not obliged to maintain children above 18.

As the letter to The Star dramatically puts it in its headline, “Law allows dad to dump girl at 18”, it will be the children of divorced parents who will suffer the most and who would be indirectly penalised by the breakdown of their parents’ marriages.

Tan said he could understand what the “Deprived 18-year-old” is going through as she is still in college and is certainly in no position to financially fend for herself.

“It is sad that these children who are at the threshold of their education would have to waste their talent and potential, and sacrifice their future merely because the legislature has not deemed it fit to compel their parents to maintain them once they attain 18,” said Tan.

Sunday, July 9, 2006

Corruption will slay the innocent

GEORGE Washington, the first President of the United States, once described the judiciary as "the firmest pillar of government".

In other words, of the three pillars of government, namely the legislature, executive and judiciary, the last-named is the pivotal pillar that supports democracy and the rule of law.

In our country, I cannot stress how important the role of the judicial branch is in defending the Federal Constitution as the supreme law of the land because our courts have the power to nullify any law passed by Parliament after Merdeka Day, which is inconsistent with the Constitution.

This explains why, when our judges are appointed, they take an oath to bear true faith and allegiance to Malaysia and to preserve, protect and defend the Constitution.

It is therefore worrying to read about judicial corruption, a topic which has been dominating our newspapers in recent weeks.

It is worrying because if there is indeed any truth in any allegation of judicial corruption, this firmest pillar which is supposed to preserve, protect and defend the Constitution will crack and ultimately collapse.

But judicial corruption is not just exclusive of a particular country. It is an insidious disease capable of pervading any country if left unchecked.

In one of his extra-judicial writings in 2001 entitled Tackling Judicial Corruption — Globally, Justice Michael Kirby of the High Court of Australia wrote: "In the days of the British Empire, the spectre of a corrupt judge or magistrate was so horrible that it could largely be dismissed as impossible.

"The judicial traditions had a strong ethos of honesty and integrity. A judge on the take was unthinkable.

"The problems of the judiciary were different: Laziness, bad temper, dilatoriness, ignorance of the law, prejudice.

"Financial corruption was out of the question, although it was not unknown for judges sometimes to be corrupted intellectually by ambition, the hope of promotion or the prayer for a title.

"Nowadays, this fundamental assumption of the legal profession cannot always be taken for granted in every country of the Commonwealth of Nations, still less of the whole world.

"The international principles of human rights may promise that the judge shall be competent, independent and impartial. But in many countries, especially in the lower judiciary, corruption is sadly a way of life.

"Insidiously, it has invaded the judicial seat. It has intruded into court registries. Without a ‘tip’, a file may be lost and will never make its way to a hearing. Without a bribe, a favourable decision may not be assured."

Indeed in the days before the time of Tun Mohamed Eusoff Chin (who was the Chief Justice from 1994 to 2000), venal allegations against our judiciary were almost unheard of.

But during his time, the most talked-about allegation of judicial graft was that contained in a 33-page pamphlet written by a High Court judge, Datuk Syed Ahmad Idid.

This missive later caused Syed Ahmad to resign on July 1, 1996. In it, there were 112 allegations: 39 of corruption, 21 pertaining to abuse of power, and 52 of personal misconduct, immorality or other indiscretions.

On March 15, 1996, when ordering an investigation into the matter, the then Attorney-General Tan Sri Mohtar Abdullah was quoted by the New Straits Times a day later to have said: "The investigation is aimed at striking at the venomous elements who are out to discredit the judiciary and subvert justice in our beloved country.

"As Attorney-General and Public Prosecutor, it is my duty and responsibility to ensure that the judiciary and the legal profession be cleansed of these treacherous elements who, by their vile, insidious, devious, and scurrilous allegation in this pamphlet had sought to undermine the integrity of the judiciary and administration of justice in this country.

"Today is the Ides of March. But unlike that fateful day in ancient Rome where the brutish beasts succeeded in killing Caesar, today we launch this pre-emptive strike at these conspirators and Insya Allah, we will ferret them out, whoever they are, and bring them to justice."

Then on July 9, 1996, Mohtar announced the completion of the investigation and revealed that the police and the Anti-Corruption Agency had questioned 12 top judges, including Eusoff, and had also examined their assets.

But Mohtar said the police had found the judges clean, adding that the matter had been closed with Syed Ahmad’s resignation, which was sufficient punishment for him.

Mohtar was also quoted to have said: "I hope the integrity and impartiality of the judiciary will not be doubted henceforth."

But the Bar Council did not think so. It immediately called upon Mohtar to review these complaints from the standpoint not only of criminal wrong, but whether they disclosed grounds of judicial misconduct rendering a judge unfit for office. But Mohtar was not moved.

To my mind, such a decision undermined the integrity and impartiality of our judiciary. Mohtar’s Ides of March statement at the commencement of the investigation made it crystal clear that it was actually aimed at identifying the authorship of the allegations.

In his words, what was launched on March 15, 1996 was his "pre-emptive strike" at the "treacherous elements" in the judiciary and legal profession who had authored the "vile, insidious, devious, and scurrilous" allegations.

That is why it is correct for the Bar Council, former Chief Judge of Malaya Tan Sri Anuar Zainal Abidin, former Court of Appeal judge Datuk Shaikh Daud Md Ismail and many other senior lawyers to now call for the allegations to be investigated again. After all, there is no limitation period for prosecuting and punishing criminal wrongs.

In fact, some of the allegations in the pamphlet cast aspersions on judges who appeared to have an impeccable record of integrity and are known to be incorruptible.

I do not know whether that was the writer’s ploy to avoid being identified, but when the name of a good judge is maligned, we owe it to him to have his reputation restored so that whoever appears before him will not doubt his judicial integrity and impartiality.

It follows that if at all any of the allegations against the judiciary is found to be untrue and calumniatory, Syed Ahmad should also face the legal consequences of his action.

Resignation might be a sufficient punishment for him, but it could not undo the damage he did to the Malaysian judiciary.

Likewise, if the allegations are true and action is taken, this will no doubt repair and re-strengthen the damaged pillar of justice while at the same time undo the injustice caused to Syed Ahmad.

The other report of alleged judicial corruption was related in a court proceeding at the Muar High Court on April 22, 2005. The case involved a deceased lawyer and four others who were accused of murder.

One of the prosecution witnesses, a court clerk, gave evidence on the role he played in "shopping for judges".

The New Straits Times on April 23, 2005 reported that the deceased lawyer had told the witness that he wanted a certain panel to hear the appeal.

The presiding High Court judge then immediately ordered a media blackout of the evidence before the court on the grounds that it would be unfair to allow the publication of names of persons who had yet to be implicated.

Most cases involving judicial corruption reported in other countries normally involve corrupt lawyers who acted as intermediaries between the litigant and the corrupt judge.

In some cases, family members of the corrupt judges were also involved. More often than not, the litigants would not know how much had been paid to the judges or pocketed by the corrupt lawyers as there was no direct contact between the litigants and the judges.

Such perfidious complicity between a lawyer and a judge stinks to high heaven.

Therefore, the allegations by Syed Ahmad and the court clerk in the Muar case were indeed troubling.

Allegations of judicial corruption are very serious, and every such allegation must be investigated thoroughly and not swept under the carpet so that the citizenry will continue to have faith in the administration of justice.

In fact, judicial corruption threatens not only judicial independence but also the rule of law. It saps our nation’s soul. It saps our spirit as a nation in coming to grips with governmental corruption when this firmest pillar should have been in the forefront in the fight against this evil.

We must devise a fail-safe mechanism to ensure that corruption does not seep into the administration of justice.

Eradicating judicial graft is the joint responsibility of all stakeholders in the administration of justice — the judges, lawyers, litigants, government, legislature, the community and the media.

It is of cardinal importance that judges and members of the legal profession are imbued with strong ethical values of honesty and integrity.

We must perpetuate a culture whereby any bribe will be met with such public revulsion that public shame will deter any thought of bribery in the administration of justice.

All said, the problem lies with the person who sits in the seat of justice.

Corruption cannot be exterminated by having more than one judge to hear the case or replacing bench trials with jury trials.

At the end of the day, a corrupt judge, a corrupt lawyer or a corrupt juror will always have this innate inclination for ill-gotten and quick enrichment.

The Chinese have a proverb which says: "Though the sword of justice is sharp, it will not slay the innocent."

But let me tell you, the innocent man will still be slain if the swordsman is corrupt.

For this reason and as proven elsewhere, the establishment of a Judicial Appointments Commission in sieving through judicial appointees is still the most effective way to arrest judicial graft.

Sunday, June 18, 2006

Tell your dad 'I love you' now before it's too late for that

Tan Sue Yong (missing since 23 May 2000)
TODAY is Father’s Day. May I wish all fathers a Happy Father’s Day.

Let me tell you a story about a great dad. Applying our societal standards, he was a nobody. He possessed neither wealth nor fame. But to his children, he was the greatest gift from God.

Sue Yong was born on Sept 24, 1917 to a huge and wealthy Zheng family in the province of Fuzhou, China. Sue Yong’s grandfather, Zheng Peng Hui was a renowned and wealthy physician sharing the lineage of the famous Chinese poet in the Qing Dynasty, Zheng Ban Qiao.

They lived in a huge mansion and were served by many servants. He was the 19th generation of the Zheng family.

In 1947, with the prospect of the communists taking control of China, Sue Yong and his young wife Swee Mei decided to leave China. The Zheng’s family assets were later sequestrated by the communists when they came to power on Oct 1, 1949.

Upon arrival, the young childless couple decided to settle down in Sepang, Selangor. There, they laboured as pig-farmers.

Living under poor and malnourished circumstances, Swee Mei’s pregnancies were often fraught with problems. She suffered several miscarriages and three sons died a few days after their births.

For Sue Yong, the life of luxury of his China days had also come to an end. There was no way he would return to China. Malaya was his new home.

In Sepang, they lived in poverty and under constant fear of the communist insurgents Malaya was fighting at that time. As the pig farm was located far away from home, their livelihood was severely affected by the many curfews imposed by the security forces.

In 1958, they decided to move down to Yong Peng. By this time, he had to work even harder to feed his five young children. Lunch and dinner were often porridge with soya sauce or a few slices of preserved bean curds.

In Yong Peng, Sue Yong toiled as a labourer for landowners who required him to clear their smallholdings of weeds and lallang or make drains along the perimeter of the land. He did all these by using his cangkul, and for a meagre wage of six ringgit a day.

Apart from having to work under the hot sun with his bare hands, such job offers were not regular. So, the household income was partly supplemented by his two elder daughters who gave up school to work as rubber tappers at the tender age of 10, each earning about two ringgit a day.

Their quality of life only started to improve from the mid-1970s when Sue Yong started to get tree-felling contracts. But this job required him to live in jungles for one or two months, felling trees and clearing secondary jungle with his chain saw.

Beloved Dad and Mum
It was an extremely dangerous job. So, whenever the taxi pulled up in front of the house with his tools, it meant Sue Yong had come home safely.

But when he had to leave again for new assignments, his family would worry for his safety again.

Often, Sue Yong had to dye his grey hair whenever he went around trying to secure contracts, fearing that prospective employers would find him too old to take up the job. He did not retire until he was 71, and that was also upon his children’s insistence.

For him, education for his children was the best investment. Despite advice from relatives that he should get his children to stop studying and start tapping rubber or helping him out with his contract work, Sue Yong was adamant that he would do everything for his children so that they would not be deprived of education and end up to be like him.

This is one fine example of what Ruth E. Renkel said: "Sometimes the poorest man leaves his children the richest inheritance."

He was also a loyal Malaysian as he would often say Malaysia was his home and would be his final resting place.

Since he came over here in 1947, he only went back to China once in 1983. That trip meant a lot to him because he had always wanted to make this "pilgrimage" to fulfil his wish and duty of paying his belated respects to his departed parents.

A duty no doubt he fulfilled with admiration by collecting the relics of his late parents and having them buried with a beautiful tomb erected in their memory.

But alas, just as he was able to enjoy the fruits of his labour in his twilight years, Sue Yong went missing on May 23, 2000 after taking an evening walk. He was 83. It was devastating for me. Tan Sue Yong is my father.

When I received a call from my mother on that fateful evening, I immediately rushed back. With the help of local Rela members, we mounted a search around Yong Peng town but could not find him.

For the next few days, the police field force and dog units joined the search. After one whole week of looking out for him in Yong Peng without any success, the reality of never seeing my dad again began to sink in.

I remember hugging my wife and crying together as we agonised over our missing dad. We could not understand why someone who had given so much to us, would have his life end in this manner.

When news came that dad was spotted taking a bus in Air Hitam, Johor, I knew he was now on the move, and no longer in Yong Peng. So, I had to abandon the search in Yong Peng and return to work.

That evening, when driving my family home, tears just flowed down as I felt so helpless at that time. I felt as if I had failed him for not being able to find him. I felt as if I had not done enough despite all the time, money, resources spent and help from so many kind people.

So, on Father’s Day 2000, which also fell on June 18, I took out advertisements in national newspapers seeking help in locating him, but to no avail.

Six years have passed. By the seventh year, the law will presume he is dead if he is still missing. But hope is what I will not give up and will continue to pray that God will help us find him — whether dead or alive.

Until then, it is difficult to have any closure on our part. The tomb that he himself designed and which was built some 20 years ago is still empty.

Our tears still flow whenever we look at his photo or dream of him. We have dreamt of him many times hoping that he would reveal to us his whereabouts, but we would wake up each time just as he was about to tell us where he was.

Dear Malaysians, though we are not rich, our lives have been enriched by him. Our dad taught us honesty, hard work and filial piety.

Always more concerned about providing for his family, he did not drink, smoke or gamble, let alone indulge in unfruitful activities. He even helped around with household chores.

Many a time, the mere thought of what our dad went through to bring us up would always provide us the much-needed jolt to remind us how blessed we are because of him.

On this special day, I pay tribute to this great man in my life. We are not who we are today if not for our beloved dad. The toil and sweat he had put in would not be in vain.

Because of him, all his grandchildren are now able to receive tertiary education. We are a family brought up by a man deprived of everything but who gave his all to us. He will remain in our hearts forever.

So Malaysians, I have no doubt this evening many of you will take your dad out for dinner. But except for this special day, when was the last time we took our dad out for a meal or sat down to have a good chat with him?

And when was the last time we gave him a pat or a hug or said, "I love you"?

In fact, just a week ago, our Prime Minister Datuk Seri Abdullah Ahmad Badawi, when launching the Royal Malaysia Police Family Day, advised us to value our family members while they are still alive and shower them with love so that there will be no sense of guilt later.

I could not agree more with our Prime Minister, and I leave you to read Robert Paul Moreno’s The Time is Now:

If you are ever going to love me
Love me now while I can know
All the sweet and tender feelings
From which the true affection flows

Love me now while I am living
Do not wait until I am gone
And then have it chiselled in marble
Sweet words on ice-cold stone

If you have tender thoughts of me
Why not whisper them to me?
Don’t you know it would make me happy?
And as glad as can be

If you wait until I’m sleeping
Never to waken here again
There will be walls of earth between us
And I won’t hear you then

I won’t need your kind words
When the grass grows over my face
I won’t crave your love and kisses
In my last low resting place

So if you love me, even a little bit
Let me know while I’m living
So that I can treasure it

The writer is a lawyer. Please visit for more information about his missing father.

Friday, May 19, 2006

Bar Council: Know your rights and liabilities

The Sun

The Bar Council wants to create greater public awareness about the rights and liabilities of property owners and occupiers. This, says Roger Tan, the chairman of the council's Conveyancing Practice Committee, is part of the Bar Council's aims to facilitate the acquisition of legal knowledge by those who are not lawyers.

"The Bar Council is happy to work with theSun in our efforts to create public awareness on legal issues related to real estate. The title of the column 'Law & Realty" is apt, as it deals with different aspects of the law involving acquisition, disposal and dealings of immovable properties," says Tan, who is based in Johor.

The first article touches on forgery related to the transfer of property ownership, which Tan describes as a "serious problem" which he hopes the Government would tackle by making changes to the law.

He adds that Malaysians ought to be conscious and aware of the law as they "have a constitutional right not to be deprived of their properties save in accordance with the law". The column will be undertaken by members of the Conveyancing Practice Committee. Tan says committee members would write on issues related to lodging a private caveat, dealing with Land Offices, compulsory land acquisition and other issues of interest.

On legal problems encountered by the public in relation to property, Tan says these usually involve late delivery, legal fees and housing loans.

Saturday, April 29, 2006

Caricature goes for RM50,001

The Sunday Star

PETALING JAYA: It took cartoonist Reggie Lee a day to do a caricature of former Lord President Tun Suffian Hashim.

When it was offered for auction at the inaugural fund-raising dinner for the Tun Suffian Foundation, it fetched a handsome price of RM50,001.

It was a silent auction and the close to 1,000 diners at the Shangri-la Hotel in Kuala Lumpur on Friday night were given slips of paper to place their bids.

The lowest bid was RM2,000 but in the end it was lawyer Datuk Zaid Ibrahim who walked away with the caricature.

The framed original copy is done in black-and-white in the tradition of similar caricatures of British judges. This is believed to be the first time a caricature of a local judge has been drawn, and law firms can still purchase the colour version from the foundation at RM150 per piece.

As for Lee, he is ecstatic.

“When I was asked by Roger Tan, a member of the organising committee, to draw the caricature, I was more than happy to do so for free. This is my way of contributing back to society and to keep the legacy of this great judge alive.

“The foundation will be giving out scholarships and I am glad that good students, irrespective of race and religion, will be able to pursue their studies at Cambridge University, Suffian’s alma mater.”

The foundation, which was incorporated in June 2002, now has close to RM1.1mil following the successful dinner which raised more than RM600,000 to add to the RM500,000 raised at the inception of the foundation.

The Sultan of Perak, Sultan Azlan Shah, who succeeded Suffian as Lord President in 1982, was guest of honour. He gave a donation of RM50,000 at the dinner, to the loud applause of those present, comprising mainly judges and lawyers.

The other RM50,000 donors for the night were Kuok Brothers Sdn Bhd, Resorts World Berhad and Wijaya Baru Global Berhad.

Other than Sultan Azlan Shah and Raja Permaisuri Perak Tuanku Bainun, the other VVIPs who attended the dinner were former Chief Justice Tun Mohamed Dzaiddin Abdullah; former Lord President Tun Mohamed Salleh Abas; former Inspector-General of Police Tun Hanif Omar; Chief Judge of Malaya Tan Sri Siti Norma Yaakob; Chief Judge of Borneo Tan Sri Steve Shim Lip Kiong; Lord Millett, a retired House of Lords judge; and Datin Seri Elizabeth Chan, wife of Datuk Seri Chan Sek Keong, the Chief Justice of Singapore.

The dinner guests were treated to a magnificent performance by the Malaysian violinist extraordinaire, Joanne Yeoh, and the group of lawyers-cum-actors, the Reluctant Performers, who did not charge any fee for their appearances.

Sunday, April 2, 2006

The judiciary and a study in independence

A STORY is told about a newly inducted judge before whom a multi-billion-peso case was pending.

One day, a lawyer who was involved in the litigation visited the judge at his residence. Surprised, the judge asked, “What brings you here? Don't you know it is unethical to discuss pending cases outside the courtroom?”

“Your honour, I did not come to influence you. But if you will look outside your window and into your driveway, you will notice a brand-new Mercedes Benz which I have brought here,” the lawyer coolly said.

“That's even worse; you have come to bribe me!” the judge angrily blurted.

“Oh no, your honour, I am not giving you the car. I am selling it to you.”

“For how much?” asked the pacified jurist.

“One thousand pesos, your honour,” was the firm reply.

“In that case,” the judge calmly retorted, “I am buying two!”

This apocryphal story was told in jest by Filipino Supreme Court Justice Artemio Panganiban (now Chief Justice of the Philippines) in 1999 during a closing ceremony of a workshop for first-level judges.

Justice Panganiban went on to say: “My dear judges, ladies and gentlemen, that may have been told in jest. But it demonstrates the witchcraft and the indecent proposals with which members of the bench are tempted from time to time.

“Indeed, judges are subjected to all sorts of temptations and pressures - some brazen, some subtle, some direct, some indirect.

“Litigants and their lawyers are sometimes devious. They study the judge's profile, personality, family history and employment record in a spirited effort to find a weak point.

“Some resort to blackmail, some to political pressure, still others to friendship or kinship or even religious relationships.

“Many times lawyers are retained by litigants not because of their skill and brilliance in legal advocacy, but because of their judicial connections, fancied or real. “The ultimate question some litigants ask their counsel is not ‘Is my case meritorious?’ but ‘Do you know the judge?’”

Do such things happen here too? Let me avoid liability by not answering it but leave it to the individual reader – be you a judge, prosecutor, lawyer, litigant or a member of the public.

If, however, the answer to my question is in the affirmative, then indeed something is very wrong with the state of affairs of our judiciary which is supposed to be the fountain of justice and bulwark of our liberties.

Given then that Malaysian judges will also have to overcome such temptations and pressures, one often asks how and who do we appoint to that seat of justice?

As judges generally enjoy judicial immunity and removing any errant judges is a cumbersome exercise, it is at the appointment stage that is pivotal to ensure that only those who truly deserve this high office are appointed.

The reason, as one of America’s finest trial lawyers, Gerry Spence, put it so trenchantly:

“Who are these judges who wield such power over us, a power reserved for God? Who are these mere humans with the power to wrest children from their mothers and to condemn men to death or cage them like beasts in penitentiaries? Who possesses the power to strip us of our professions, our possessions, our very lives?

“They make law. They may take away your wife or your good name or your freedom or your fortune or your life. They are omnipotent. And the question is: To whom have we so carelessly granted that power? Are they the kind who would understand you, who from their experiences would know something of the fears and struggles you have faced? Will they care about you or about justice?”

Currently, judges are appointed by the King, on the advice of the Prime Minister after consulting the Conference of Rulers, and the Chief Justice if the appointment is to the Federal Court; the President of the Court of Appeal if the appointment is to the Court of Appeal, and the respective Chief Judges if the appointment is to the High Court.

The only appointment criteria to such high judicial office are contained in Article 123 of the Federal Constitution, which provides that the appointee must be a Malaysian citizen and for the 10 years preceding his appointment has been an advocate or a member of the judicial and legal service.

But these criteria are hardly adequate compared to those set by other Commonwealth jurisdictions because a judge holds his judicial office quamdiu se bene gesserit (during good behaviour).

Britain, for example, will have an independent Judicial Appointments Commission tomorrow under the Constitutional Reform Act 2005, doing away with the centuries-old practice of letting the Lord Chancellor make or recommend judicial appointments to the Queen.

In fact, the Bar Council has been advocating such a Commission for some time. While as a check and balance, the executive should continue to have a say on the appointment and promotion of judges, there also should be an independent body to make recommendations to the executive, otherwise judges will be deferential to the heads of the judiciary and, if appointed, will be beholden to their heads.

This may later give rise to accusations of judicial cronyism and sycophancy.

A fortiori it is also against the national interest if a powerful Chief Justice can get his friends appointed to the Federal Court who can then actually “legislate” from the bench. Therefore, the ability to stand up against any interference with judicial independence both from within and without should be the sine qua non to a judgeship.

In fact, I agree with Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim that judicial appointments must be based on merit, except that seniority should ordinarily be the prime consideration and if it is not so, it must be in exceptional circumstances.

As experience often comes with seniority, the Chief Justice was lauded for suggesting that only judicial officers who have at least five to seven years’ experience be allowed to sit as magistrates.

It is axiomatic that if many juniors are elevated, then that is as good as saying that senior judicial or legal officers lacked any merit when they were appointed!

To my mind, for juniors to leap-frog over their seniors, they must be exceptionally brilliant and capable judicial and legal officers. For example, do we check the number of judgments they have written and out of these, how many have been affirmed by the higher courts?

It follows that a body of persons such as the commission would be more capable of objectively assessing the suitability of judicial appointees.

We owe it to our nation and the next generation to ensure that only the best among the best are elevated. One may then ask what the attributes of a good judge are?

Justice Panganiban said the qualities of a good judge are encapsulated by four “Ins” - integrity, independence, industry and intelligence.

He also declared on the website of the Supreme Court of the Philippines to lead a judiciary characterised by the four ins and “one that is morally courageous to resist influence, interference, indifference and insolence” which is impervious to the plague of “ships” - kinship, relationship, friendship and fellowship.”

Has our country ever produced such a good judge? Of course, we have had many good judges who had borne true faith and allegiance to Malaysia, and who had lived up to their oaths of office in preserving, protecting and defending our Constitution.

Leading this group of legendary judges is none other than the former Lord President from 1974-1982, the late Tun Mohamed Suffian Hashim.

Many tributes and accolades have already been paid to Tun Suffian, who was undoubtedly Malaysia’s greatest judicial figure, and I say he passed Justice Panganiban’s four ins test with flying colours.

I recall these words written in my autograph book by my primary school headmaster:

“A good thing has its number of days and a good name will last forever.”

How relevant indeed, as a judge should always be mindful of the kind of name he will leave behind when he steps down. Suffian has left behind an unblemished name. Though small in build, he was a fine example of a towering Malay and, most of all, a towering Malaysian.

On April 28, the Tun Suffian Foundation will hold its inaugural fund-raising dinner to raise funds for establishing a Tun Suffian Chair on Constitutional Law, Tun Suffian Scholarship and Tun Suffian Research Centre at Universiti Malaya.

Malaysians, especially those who were associated with Suffian, must donate generously to the foundation. More information can be obtained from

It is no secret that the Bar is known for ostracising judges who have gone astray, but the Bar is also always the first to defend and honour judges who have stayed steadfast to their oaths of office as the guardians of our Constitution.

Suffian was one such judge. May he inspire many more in the years to come.

Sunday, February 19, 2006

Making class action easie

New Sunday Times by Roger Tan

IN 1988, Opposition leader Lim Kit Siang went to court asking for a declaration that the letter of intent issued by the Government to United Engineers (M) Bhd in respect of the North-South Highway contract was invalid, and for an injunction to restrain UEM from signing the privatisation contract with the Government.

Lim succeeded at the High Court, but upon the appeal of the Government and UEM, the Supreme Court by a majority of three to two (Lord President Tun Salleh Abas, Chief Justice Tan Sri Abdul Hamid Omar and Tan Sri Hashim Yeop Sani) ruled that Lim had no locus standi or legal standing to maintain his suit because he had failed to establish that his private right had been infringed or he had suffered a special damage.

Supreme Court justices Tan Sri Eusoffe Abdoolcader and Datuk George Seah dissented.

In his dissenting judgment, Abdoolcader described the majority decision as "a retrograde step in the present stage of development of administrative law and a retreat into antiquity".

To lawyers, this form of litigation is called public interest litigation (class action lawsuit in the US).

In simple terms, it is a suit filed by a private citizen, who is often motivated by societal interest, to seek redress against public wrongs committed by the Government or public bodies, even though the individual himself may not have suffered any damage.

Abdoolcader’s strong dissent was understandable as the judicial attitude on legal standing was then heading towards a less restrictive one.

That is, the applicant should at least have a sufficient interest in respect of the matter to be litigated as opposed to the stricter test that the applicant had to be the person aggrieved by the wrong committed by the public authority.

Hence, prior to the UEM case, being a ratepayer was sufficient to give him the locus standi to sue.

But the Supreme Court in the UEM case did not buy Lim’s argument that as a taxpayer he was entitled to sue. Unless his private rights were affected or he had suffered a special damage he could not.

The UEM case has since been followed by a number of key public interest litigation cases, including the Bakun case.

The UEM case has sounded the death knell for public interest litigation in Malaysia unless the issue involves an infringement of a citizen’s constitutional right.

While liberalisation of the standing rules has taken place in most common law jurisdictions, including Singapore, here we are still bound by the majority decision of the UEM case which is more than a quarter century old.

To the proponents of liberal standing rules in public interest litigation, this not only shows an absence of judicial activism but the presence of judicial inertia in our country.

To them, the courts should not abdicate from their duties as the constitutional rampart against "departmental aggression", as too rigid a rule will inevitably cause injustice to the citizenry because administrative decisions of government departments are now virtually immunised from curial scrutiny.

This is because as the poor and illiterate often lack the means or stamina to take on the executive whenever administrative decisions affect a larger number of the community, it is now left to socially concerned individuals and bodies such as non-governmental organisations to challenge such administrative decisions.

Such proponents would often argue that justice requires the unfastening of these antiquated bolts and shackles of strict standing criteria.

The judges, as Abdoolcader said, cannot stand there and fold their arms and do nothing, or they might as well "hang their heads in sorrow and perhaps even mortification at not being able to at least entertain for consideration on its merits any legitimate complaint of a public grievance or alleged unconstitutional conduct".

In fact, as Lord Woolf said, judicial intervention is all the more necessary these days when administrative bodies are adopting the practice that anything is permissible unless and until it is stopped by the courts. It is no longer the case that if the legality of a course of action is in doubt, it will not be adopted.

But the common reasons cited in support of a narrow approach to locus standi are:

1. liberalising the rules would open the floodgates to litigation;

2. the judicial process should be protected from abuse by busybodies, cranks and other mischief makers; and

3. judges are mere interpreters of law and should not trespass into the paths of the other two branches of government — the executive and legislature.

As regards the first argument, Abdoolcader said, "In the United States, where standing rules are relatively lax, it has been found that although the gates have been open there has been no flood."

With respect to the second argument, Abdoolcader responded that this would unjustly close the door to the ventilation of a genuine public grievance since our judges are experienced in filtering any "phantom busybody or ghostly intermeddler".

Further, a mere busybody will be penalised in costs if he files frivolous actions.

The popular argument against the third justification is that liberalising the standing rules will keep the administrative bodies on their toes as public interest litigation can promote good governance in public administration.

This is consonant with the principle of rule of law as judicial scrutiny can be an elixir to treat complacency and malaise which often creep into these "judicially insulated" administrative bodies if their decisions, acts and omissions go unchecked.

But is this ideal practicable here? Inspired by the free-for-all public interest or social action litigation and a highly active judiciary in India, many have, of course, egged on Malaysia’s conservative judiciary to take a more activist approach.

While this approach has obvious benefits, the danger is that excessive judicial zeal may actually lead the unelected judges to venture into the domain of the elected Government.

This can bring the business of the Government to a standstill, and it is therefore no surprise to hear some argue that had Lim succeeded in the UEM case, there might not be any North-South Highway today.

The drawbacks of excessive judicial zeal can be witnessed in India, as its judicial activism is said to have now become judicial "populism" or "excessivism".

The Indian Supreme Court as well as many High Courts now not only entertain and act on petitions but letters written by affected persons and NGOs.

Further, it cannot be gainsaid that public interest litigation is often used by the Opposition to embarrass the Government.

So public interest litigation has also been called "publicity interested litigation" or "politically interested/inspired/inclined litigation" as such litigation can be a politically pernicious tool used surreptitiously to bug and mortify governmental departments, stalling genuine government business.

Be that as it may, until the Federal Court departs from the majority decision of the UEM case, it remains the law on locus standi unless Parliament enacts a law to grant citizens the right to sue in certain situations.

I am of the view that the time has come for legislative intervention at least in one area — protecting our environment.

The recent toxic waste dumping incident in Labis, near my hometown Yong Peng in Johor, is worrying.

The pollution of air and water by corporations whose acts often go unnoticed is harmful to our environment.

I believe the enforcement of environmental laws is not just the duty of the Government but also that of every concerned citizen.

Perhaps we should take a look at the Canadian state of Ontario’s Environmental Bill of Rights 1993. The preamble to the Bill declares as follows:

"The people of Ontario recognise the inherent value of the natural environment.

"The people of Ontario have a right to a healthful environment.

"The people of Ontario have as a common goal the protection, conservation and restoration of the natural environment for the benefit of present and future generations.

"While the Government has the primary responsibility for achieving this goal, the people should have means to ensure that it is achieved in an effective, timely, open and fair manner."

Under section 84, any resident in Ontario may bring an action against anyone who has contravened or will imminently contravene any environmental law which has caused or will imminently cause significant harm to the environment, if the authorities fail to respond to his complaint of contravention or the response given is not reasonable.

With this statutory right to sue, I am sure concerned Malaysians can be the eyes and ears of the enforcement agencies in our efforts to protect our environment.

This will indeed be a government-citizen partnership to check pollution of our rivers and air by recalcitrant and habitual offenders.

But without legislative intervention in this area, no one knows when the apex court will depart from the majority decision of the UEM case.

Until then, public-spirited citizens can only find solace in these words quoted by Abdoolcader in his parting paragraph in the UEM case:

"A dissent in a court of last resort, to use his words, is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct, the error into which the dissenting judge believes the court to have been betrayed."

Sunday, January 29, 2006

'Be you never so high, the law is above you'

Perlis MB presenting a bicycle to a young traffic offender.
Rewarded for breaking the law?  
The concept of the rule of law, which is the fourth guiding principle of our Rukun Negara, can be explained in many ways.

But perhaps it is best explained and summed up in the words of Thomas Fuller, who said more than 300 years ago, "Be you never so high, the law is above you."

Those words were quoted by Lord Denning, the most celebrated English judge of the 20th century.

It was in a case brought by one Mr Gouriet in 1977 when the Attorney-General refused to give him consent to institute relator proceedings to injunct the Union of Post Office Workers from boycotting all postal communications between Britain and South Africa as such actions would constitute criminal offences under the Post Office Act 1953.

When the Attorney-General argued that his discretion was absolute and not subject to judicial review, Lord Denning had this to say, and he said it acerbically:

"What is to be done about it? Are the courts to stand idly by? Is the Attorney-General to be the final arbiter whether the law should be enforced or not?

"It is a matter of great constitutional principle. If the Attorney-General refuses to give his consent to the enforcement of the criminal law, then any citizen in the land can come to the courts and ask that the law be enforced.

"This is an essential safeguard; for were it not so, the Attorney-General could, by his veto, saying 'I do not consent', make the criminal law of no effect.

"Confronted with a powerful subject whom he feared to offend, he could refuse his consent time and time again. Then that subject could disregard the law with impunity.

"It would indeed be above the law. This cannot be permitted.

"To every subject in this land, no matter how powerful, I would use Thomas Fuller’s words over 300 years ago: 'Be you never so high, the law is above you'."

I quoted too Fuller’s words in my letter to the New Straits Times (Parliament, the law and justice for all, Dec 12, 1992) during the constitutional crisis that Rulers were not above the law and if they were, it was because the law had decreed it so and such law could be changed by Parliament.

This echoed the words of Henry Bracton that "the king is under no man but under God and the law because the law makes the king".

Indeed it sounds really good when one recites Fuller’s words aloud, but just how good is it when you reflect upon your many dealings with our public institutions? I need only to expound on three scenarios.

Have you ever heard anyone say any of these?

- "If you like to get this matter approved or resolved by that government department, you need to approach A."

- "If your case is before that judge, it may be wise to engage lawyer B as others will often get a shelling from the judge."

Or have you ever noticed any of these?

- You queue up for hours for your turn to be served at a counter in a government office when someone who is known to the pengarah just walks into his office and gets his things done in a matter of minutes.

- A so-and-so person can walk in and out of that public official’s office as if it is his second home.

Or have you ever experienced this?

Your application is rejected but after the intervention of an influential friend of yours, it is approved.

One then asks if approval can ultimately be given due to the intervention of a "well-connected" person, is the rejection of your original application not devoid of any good reason?

But this is Malaysia, as many would tell you. They would also tell you that you would not be able to survive here if you want to rely solely on your ideals to make a living.

According to them, we can talk and almost everything is negotiable, and we can even talk our way out of many laws.

But how true are these statements?

Well, I do not think they are spurious as the above non-exhaustive scenarios go to show that the way our laws are administered very much depends on who you know and not what you know.

Hence if a fresh practitioner in any field cannot work through the system unless he first gets to know the official personally, then something is very wrong with our system of public administration.

To my mind, if our public institutions give preferential treatment to those who are rich and powerful who possess "strong connections", then this non-legal route is against the principle of the rule of law which requires everyone to be treated equally.

In other words, all persons who are in a similar position should be treated similarly; otherwise such practices will breed a culture of patronage and encourage corrupt practices in our official dealings with government departments.

Affording equal treatment stems from the principle of equality before the law which is one of the cardinal ingredients of the rule of law.

It is enshrined in Article 8 of the Federal Constitution which also states, inter alia, that no one is to be discriminated on the grounds of religion, race, descent, place of birth or gender unless expressly authorised by the Constitution.

As Sultan Azlan Shah once said in one case involving a prince, "This equality of all in the eyes of law minimises tyranny."

The next ingredient of the rule of law is that enforcement of laws requires decisiveness and finality, unless there are compelling reasons to the contrary.

Rule of LawI have often been embarrassed trying to explain to my foreign friends why our Government is in the habit of extending the moratorium periods for traffic offenders to pay up their fines or illegal immigrants to leave the country.

It has come to such a state that these offenders and immigrants take it lightly when the Government next announces the date when they will mobilise forces to apprehend them, as if another postponement to enforcement date is predictable.

This is actually an affront to all law-abiding citizens who pay their fines promptly and the foreigners who did not overstay.

It has become almost like a joke for an offender to say, "It is still early to pay the fine. I shall wait till they announce that discounts will be given or that I should pay by a certain date to avoid prosecution."

It is a good thing for the Government to be seen to be kind, caring and compassionate, but it is quite another to send the wrong message that offenders are above the law because punishment can be postponed or ameliorated. This undermines the rule of law.

In fact, enforcing laws is not in any way different from dispensing justice. I am aware of the words of Abraham Lincoln that mercy bears richer fruits than strict justice.

Indeed justice and mercy are two virtues which often conflict with one another. But if the rule of law is compromised, dispensation of justice will not be possible.

One should not make it so excusable for infidelity to law; otherwise as Abraham Lincoln himself admitted:

"He reminds me of the man who murdered both his parents, and then when sentence was about to be pronounced, pleaded for mercy on the grounds that he was an orphan."

During the nude-squat Commission of Inquiry proceedings in December, Chief Inspector Abdul Aziz Abdul Rahman, the officer-in-charge of the Petaling Jaya District Police Headquarters, when asked why accused persons had to do squats in the nude, answered that "this was the tradition or heritage" even though the Lock-Up Rules were silent on ear-squats.

Likewise, civil servants in some government departments interpret internal guidelines as if they have the force of law when such guidelines are not subsidiary legislation.

These are unlawful practices which are unfortunately practised against those who are not conversant with their legal rights thereby permitting the officials to act above the law.

The problem is compounded when such officials do not even know that these administrative practices and guidelines already entrenched in the system, are in fact not laws.

Dear Malaysians, our country is governed by the rule of law and not rule the law.

No one is above the law, and everyone should be treated equally in their dealings with our public institutions.

There is not supposed to be one law for the rich and powerful and another for the poor and oppressed.

So, the next time anyone should come along and say to you, "Do you know who I am?" I hope you would find Fuller’s words useful, "Be you never so high, the law is above you."

Published in the New Sunday Times on 29 January 2006

Wednesday, January 18, 2006

Officials directed to read letters published in papers

©New Straits Times

ImageJOHOR BARU, Jan 17: State officials have been directed to read letters published in newspapers to gauge public sentiment on government projects and services.

Datuk Abdul Ghani Othman, who gave the directive, said newspapers’ letters pages were an invaluable source of public feedback, and state executive councillors and heads of department should pay attention to the points raised.

"I know many do not even read the newspapers, let alone the letters pages. But they must make it a point to do this every morning," he said after opening the RM600,000 new clubhouse of the South Johor Chinese Press Club (SJCPC) here yesterday.

Ghani commended newspapers such as the New Straits Times for expanding their letters section from one to two pages, as the views expressed were a vital source of public feedback.

He said he told the state exco at a meeting yesterday to scan the newspapers for letters on problems in Johor, and respond to such complaints.

Ghani said the suggestions and views expressed in the op-ed pages of newspapers were also of merit and should be considered by the state exco and departmental heads.

A case in point, he said, was the piece by lawyer Roger Tan headlined "Religious freedom the keystone" in the New Sunday Times on Jan 8.

Tan, Johor’s state representative to the Malaysian Bar Council, had written about the difficulties non-Muslim groups faced in building places of worship and commented that the authorities should be more magnanimous in approving such applications as "a nation which is religious will only produce God-fearing people".

Ghani supported that view, saying such balanced, impartial and thought-provoking articles were eye-openers and should be read by those making decisions on the ground.

On the subject of the "bad Press" Johor had been getting lately in the Singapore media, he said the State Government was not overly concerned as most visitors knew that such reports were an exaggeration.

Regardless, he added, Johor would seek federal assistance to beef up security with an enlarged police presence on the streets here.

Earlier, he announced a RM200,000 State Government allocation to the SJCPC in aid of the clubhouse renovation project.

The 23-year-old club has 300-odd members from six Chinese newspapers in South Johor.

It has an Education Fund for members’ children and regularly gives out contributions in cash and kind in aid of the poor and needy.

Sunday, January 8, 2006

Religious freedom the keystone

New Sunday Times
by Roger Tan

Unity of FacesJan 8: The late Tun Abdul Razak once said our enemies are three Cs — communism, corruption and communalism. To fight these enemies, our nation’s greatest weapon is our belief in God — religion, but not religious bigotry.

Religion was one of the tools used by the British to defeat the communist guerillas during the Malayan Emergency.

The resettling of thousands of poor migrant Chinese in the rural areas who were communist sympathisers in "new villages", and building hundreds of temples and churches encouraged them to disassociate themselves from the agnostic guerillas by turning to God.

In combating corruption, Tun Dr Mahathir Mohamad said when he became Prime Minister, that he would put the fear of God in the corrupt. But that would have been useless if those who bribed and were being bribed were not God-fearing people, for no God-fearing person would dare deny that bribery was wrong in the eyes of God.

Corruption here is not just about monetary corruption, it can also be corruption of the mind. Religion can also counter corruption of morality and our mores and fight social decadence, especially among the young in the cyberage.

Hence religion can build within us a strong will against the temptation of corruption.

(The late Tun Razak then went on to say that of the three Cs, the greatest enemy is communalism. I could not agree more with the late Tun’s assessment.)

In a multi-racial, multi-religious and polyglot society like ours, race and religion can easily rear their ugly sides.

They often provoke extreme passions and reactions whenever one community attempts to claim racial and religious superiority.

These are no doubt delicate and touchy issues, but that does not mean that we should not discuss them. Instead of being often the partners that foment communalism, religion can in fact counter it.

So when Prime Minister Datuk Seri Abdullah Ahmad Badawi sent out personal Christmas cards to Christian leaders and churches, many quickly saw the benevolence of Islam in him.

It follows that if our children are brought up to be tolerant of others’ beliefs from their nursery and primary school days, such attitudes can ultimately help fight any virus of racism and even heal it.

I remember, when I was in primary school in rural Yong Peng, my best friends were Tun Zahari, Zainal and Babu. During recess, we would sit at the verandah of the wooden English primary school and indulge in foolish talk. On Fridays, the Malays would be in their baju Melayu and I would play with their songkok, and they would tell me why they had to wear the songkok on a Friday and its significance.

I also remember, shortly after the communal riots of May 13, how I would hold hands during school assemblies with Tun Zahari, Zainal and Babu, singing "Muhibbah" and "Malaysia Berjaya" and reciting loudly and proudly our national philosophy (Rukun Negara) in which we pledged that our nation would be dedicated, inter alia, to achieving "a greater unity for all her peoples". We also pledged our united efforts to attain this end guided by the following principles:

• Belief in God

• Loyalty to King and country

• Supremacy of the Constitution

• The rule of law

• Mutual respect and good social behaviour.

It is, therefore, not surprising to see that of the five guiding principles, religion is placed first.

But what has become a matter of concern is that over the years non-Muslims find it increasingly difficult to build their places of worship. This offends Article 11 of the Federal Constitution, which guarantees non-Muslims the freedom to profess and practise their religion, except for propagating their religion to Muslims.

That explains why the Federal Constitution, being the social contract which binds all Malaysians, is listed as the third guiding principle of our national philosophy.

Of course, Malaysians’ constitutional right to freedom of religion, as expressly stated in Article 11(5) does not "authorise any act contrary to any general law relating to public order, public health or morality".

The Johor State Constitution promulgated during the reign of the fair and just Sultan Abu Bakar, for example, even has an article in it proclaiming as follows: "All the laws and customs of the country shall be carried out and exercised with justice and fairness by all the Courts of Justice and all Officers and Servants of the State between all the people of the country and the aliens who sojourn and reside under its protection, whether for a season or for a lengthened period, that is to say, without their entertaining in the least degree more sympathy or regard to partiality towards those who profess the religion of the country, namely the Muslim religion, or making any difference between those who are the subjects of the State and those who are not."

In this respect, delaying approvals for the construction of places of worship for those who profess the non-Muslim faith is incompatible with Article 11.

The approval process is often long, in some cases years, for the authorities to approve the conversion of land to religious use as well as building plans for these places of worship.

In some states, such applications first have to be referred to the District Security Committee and then to the State Security Committee for deliberation for reasons of "public order".

The composition of these committees usually comprises entirely those who profess the Muslim faith, with representatives from the Religious Affairs Department.

It is disheartening to note that as Malaysians those who profess non-Muslim faiths should be considered a security threat and that applications for establishing their places of worship have to be referred to the Security Committee.

It is hoped that this perceived ethnocentric approach will cease immediately, and that each State Government will set up a non-Muslim Religious Department to look into the religious issues affecting the non-Muslims.

Applications for the erection of places of worship should be automatically dealt with by this department and the local authorities.

Only if there is sufficient evidence that the intended place of worship will pose a threat to "public order" in a particular location should this be referred to the State Security Committee.

I am sure that the majority of our Muslim brethren will sympathise with our predicament and appreciate what is written here.

Having seen how Tun Razak animadverted communalism and the role of religion in coming to grips with the three enemies of state, it is hoped that in 2006, the authorities will be more magnanimous in approving places of worship for non-Muslims because a nation which is religious will produce God-fearing people.

After all, where else can one experience the benevolence of Islam, the enlightenment of Buddha, the love of Christ and the good manifestations of the various Hindu deities than in our beloved Malaysia?

So, let us take pride in our religious diversity, which can be a formidable strength of our multi-religious nation in overcoming communism, corruption and most of all, communalism.