Keep it colour blind

The Sunday Star 
Legally Speaking by Roger Tan
 

Respected figure: The writer with Sultan Azlan.

Our judges, regardless of their race and religion, must always be mindful that they have taken an oath to preserve, protect and defend our Constitution not for some but for all Malaysians.

I HAVE wanted to write this for some time – my tribute to the late Sultan Azlan Shah who passed away on May 28, 2014. Not so much because he had been reading my column, but rather on two occasions which I had the honour of meeting him, he had encouraged me to keep on writing.

I was also troubled that when he passed away, he had not been accorded the appropriate recognition by leaders of our legal profession of his contribution to the administration of justice in this country.

This could be due to some differences with the Sultan’s decision not to call for fresh state elections when Pakatan Rakyat lost the majority control of the Perak state assembly in February, 2009. I had at that time written extensively that the Sultan’s decision was constitutionally correct.

Interestingly, the Federal Court’s judgment which subsequently endorsed the correctness of his royal decision is now being relied upon by his then most vociferous and sometimes insolent critics in Pakatan Rakyat to justify replacement of the embattled Selangor Mentri Besar, Tan Sri Khalid Ibrahim without the need for a state assembly sitting or the dissolution of the assembly.

Sultan Azlan belonged to the generation of great Malaysian jurists including the likes of Tun Mohamed Suffian Hashim and Tan Sri Eusoffe Abdoolcader. He was, after all, the youngest ever appointed High Court Judge and Lord President.

Not many knew that whenever the Malaysian Bar stood up for the independence of the judiciary, he was always there with and for us.

I still remember the keynote address he gave at the 14th Malaysian Law Conference on October 29, 2007; of which I was the organising chairman.

The conference was held one month after 2,000 or so lawyers walked for justice from the Palace of Justice to the Prime Minister’s office to hand over a memorandum asking the government to set up a royal commission of inquiry to investigate the V.K. Lingam video tape which implicated the then chief justice, Tun Ahmad Fairuz Sheikh Abdul Halim.

Democracy or democrazy?

Cyber assault: Chua Lai Fatt’s MyKad as posted and circulated on Facebook.

The Sunday Star

by Roger Tan

Democracy is about accepting finality through the ballot box and due process of law.

IN the 2000 United States presidential election, despite Al Gore having won the popular vote, he did not get to become President.

He received 266 votes and George W. Bush obtained 271 at the Electoral College due mainly to the vote recount fiasco in the state of Florida. The matter went all the way up to the US Supreme Court, which ruled 5-4 in favour of Bush. This was by far one of the most divisive and controversial US presidential elections, so much so that Bush was described as the President elected by the US Supreme Court.

Even though Gore strongly disagreed with the apex court’s decision, he was nevertheless gracious in defeat. Indeed, it took a big man like him to admit defeat. I remembered his concession speech almost moved me to tears.

Gore said: “Almost a century and a half ago, senator Stephen Douglas told Abraham Lincoln, who had just defeated him for the presidency, ‘Partisan feeling must yield to patriotism. I’m with you, Mr President, and God bless you.’ Well, in that same spirit, I say to president-elect Bush that what remains of partisan rancour must now be put aside, and may God bless his stewardship of this country. Now the US supreme court has spoken. Let there be no doubt, while I strongly disagree with the court’s decision, I accept it. I accept the finality of this outcome ... And tonight, for the sake of our unity as a people and the strength of our democracy, I offer my concession. I know that many of my supporters are disappointed. I am too. But our disappointment must be overcome by our love of country.”

This is what democracy is all about – accepting finality through the ballot box and due process of law.

Alas, Datuk Seri Anwar Ibrahim refused to do so. He has vowed to move on with a “fierce movement” by holding protest rallies throughout Malaysia to challenge the 13th general election results. This is not democracy. If I may coin a new word for the Oxford’s English dictionary, it is democrazy!

If we want to indulge in an orgy of rhetorics that Barisan Nasional won by massive fraud, then I say Pakatan must have won by massive lies spread over the social media such as that:

> 40,000 foreigners were flown in from east Malaysia to vote in the peninsula;

> a bomb planted by Barisan supporters had exploded at the Johor Baru immigration terminal in order to frighten Malaysians working in Singapore from coming home to vote;

> new ballot boxes were added or exchanged when there was a blackout in Bentong in order to enable Datuk Seri Liow Tiong Lai to win.

Of pleading guilty and going topless

The Sunday Star

by Roger Tan

 

Two newsworthy headlines in recent weeks merit some comments.

ON Sept 11 when I was taking a flight at Changi Airport, I came across the news report that a former Singapore prosecutor and crime buster, Glenn Knight, had apologised to former MCA president Tan Koon Swan for wrongly prosecuting him in the Pan-El crisis in 1986 (Koon Swan case ‘a mistake’, The Star, Sept 11).

I thought such a move was rather strange but then I was not able to get hold of a copy of the book, The Prosecutor, at the airport. Now that I have sighted it, some observations should be made.

Among other things, Knight wrote in his book, “He (Koon Swan) was charged in 1985 before Justice Lai Kew Chai and pleaded guilty to the charge. He was also given a two-year jail sentence. And a S$1 million fine, which he immediately appealed ...

“A similar CBT case came up for hearing, and Chief Justice Yong Pung How, who had replaced Justice Wee Chong Jin as Chief Justice in 1990, concluded that I was wrong to charge Koon Swan for the offence which got him convicted. Chief Justice Yong was of the opinion that the section that I had charged Koon Swan with was wrong in law, for we could not charge a person for stealing from a company because as a director, it was not a breach of the law in that sense ...

“In the United Kingdom, such a landmark judgment would have set aside Koon Swan’s conviction, but our jurisprudence does not allow for this, though technically Koon Swan could still have been granted a pardon ... The judgment meant that Koon Swan had been wrongly convicted and he was technically an innocent man.”

Firstly, there are some factual errors. Koon Swan was actually charged and he pleaded guilty in 1986, not 1985. Justice Lai’s decision was delivered on Aug 26, 1986. Apart from the two-year jail sentence, he was actually fined S$500,000, not S$1mil.

Think before you tweet

The Sunday Star

by Roger Tan

 

If not used wisely, tweeting obviously carries dire consequences, both civil and criminal, because of its limitless reach in this borderless world.

IN what appears to be the first case in Malaysia, the High Court at Kuala Lumpur ruled last Friday that a journalist had to pay half a million ringgit to a businessman as damages over two defamatory tweets.

The Sun columnist R. Nadeswaran was sued by businessman Datuk Mohamad Salim Fateh Din in his personal capacity as the two defamatory tweets sent on July 12, 2010 and December 22, 2010 were sent out from his personal Twitter account.

The first tweet which questioned Mohamad’s Pakistani heritage was sent to one “tonypua”. The other, which libelled Mohamad as a “land thief” and his association with PKR deputy president Azmin Ali, was sent to one “TerencetheSun”.

As Nadeswaran’s Twitter account was not a protected account, that is an open account, all his tweets could be read by the public including those who were not his Twitter account followers.

Justice Amelia Tee Hong Geok Abdullah also ruled that as Nadeswaran did not file any defence to Mohamad’s claim, the former was deemed to have admitted to the latter’s entire claim.

Nadeswaran’s counsel was therefore not allowed to call any witnesses or cross-examine Mohamad’s witnesses with regard to the latter’s claims except on the issue of the amount of damages.