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.