Loyal Followers

Tuesday, June 30, 2009

No, it is not a betrayal!

By a guest writer, John Baptist*.

"Our progress as a nation can be no swifter than our progress in education.” The late President John F. Kennedy uttered these prescient words. I would only hasten to add the word “quality” before education in that phrase acknowledging though that JFK probably saw no need to do so, assuming quality to be a given. In the current context of our country however, I see the necessity to emphasise the word quality. Not the number of degrees or the variety available but the quality!

Education should be formulated to ensure that our nation’s competitiveness in the context of a borderless global economy is never compromised, at any cost.

It is with this mind that I would like to address this area of significant concern - should it be English or Bahasa Melayu/Malaysia for Science and Mathematics? This question must be examined in the context of the long-term objectives of our nation, chief amongst which is our nation’s sustained competitiveness. It must also be borne in mind that this question concerns only two subjects out of a possible ten subjects (based on the restrictions the Government is planning to impose).

Science, based on my limited understanding, is the bedrock of knowledge in many fields and professions involving engineering, medicine and biotechnology, to name a few. Similarly, mathematics provides the foundation for accountancy, engineering, architecture and other vital professions. A mastery of both subjects will provide a reservoir of knowledge. So in what language should these subjects be mastered? In a language used only at home or perhaps in two or three neighbouring countries, each with their own variation or in a language that is universal? Let us assume an example though extreme, of a situation where all our doctors were trained in Bahasa Melayu and had little or no knowledge of English. How would they handle the H1N1 pandemic that has hit this world considering the bulk of the research on this is in English? I was told of a doctor who did not understand the meaning of the phrase “my wife is expecting” until he was told the word “hamil”.

An argument in favour of teaching these subjects in Bahasa Melayu is that rural Malays in particular would lose out. I am not unappreciative of this. However, will teaching these rural folks in Bahasa Melayu protect them from the realities of globalisation when they eventually graduate? I humbly think not. But this is not a problem that can be ignored for it is very real and must be addressed. An idea that comes to my mind is for immediate arrangements to be made to conduct these subjects in both languages concurrently. For example, the textbooks should be written in English with Bahasa Melayu translations within. Classes should be conducted in both English and Bahasa Melayu. Examinations should be conducted bilingually perhaps will a small section entirely in English, increasing gradually over the years. Re-hire the retired English teachers and rope them in to help with the process of improving the grasp of the language. The move to make it compulsory to pass English at SPM level may be implemented in say three to five years, to prevent any injustice on those lacking proficiency in the subject.

I am not advocating that Bahasa Melayu be abandoned. This language will continue to be used for the remaining eight subjects. The language as a subject should also be taken to greater heights. With respect, I find it difficult to believe that the use of a common language by itself is capable of uniting a nation. The process of uniting a nation calls for much more, including the end of discrimination and the championing of meritocracy.

If the teaching of Science and Mathematics in English is considered a betrayal of Bahasa Melayu, I humbly suggest that teaching the subjects in Bahasa Melayu is a greater betrayal of the future of the students who will find themselves incapacitated in later years when faced with global competition. Myopic obfuscation, often political, should not blind our hearts from pursuing an educational strategy that is beneficial to the nation in the long run.

* John Baptist is a dear friend of mine. John is perhaps the most devout believer in God and His  grace that I will ever know in this lifetime. Blessed with a purity of conscience that is rare, John carries his own paper bags to supermarket, travel by train to work and does anything within his ability to build a better world. My many thanks to him for this contribution.

Thursday, June 25, 2009

Please, Don’t Turn Our Children Into Guinea Pigs

Some years ago, my friend interviewed a local graduate for pupilage. The interviewee spoke flawless Bahasa Malaysia. He carried himself well and answered all my friend’s questions confidently. Until, of course, my friend started speaking English. He asked the interviewee, “Why did you read law?” The interviewee looked into my friend’s eyes for a moment and appeared to be in deep thought. Finally he said, “Because I want pass my exam.”

Let’s face it. The standard of spoken and written English among our students nowadays is abysmal. I belong to the last batch of students in government schools from the “English stream”. That means we studied Maths and Science in English and took the “Lower Certificate of Education” in Form 3; the “Malaysian Certificate of Education” in Form 5 and the “Higher School Certificate” in Form 6. Even then, as I entered the university, I realised that my level of English proficiency was inadequate. My English was nowhere as good as the standard of English of students from urban areas and well-to-do families.

As a result I struggled. I had to take the English classes which were made compulsory for students like me. By the end of my first year, I realised that my English was going nowhere and it was not taking me anywhere either. With that realisation, I began to read a lot. I would even read the Star newspaper from the sport page down to the first page everyday with a dictionary in my hand. I would converse with all my friends and lecturers in English. By the end of the 2nd year, I had managed to answer half of my exam papers in English. Thus began my “English transformation”.

The proficiency in English among our students cannot be improved simply by teaching Maths and Science in English. To think that our students would be more proficient in English by learning Maths and Science in English is wishful at best and downright silly at the other extreme.

We are accustomed to knee-jerk reactions masked as “solutions” to every problem under the sun. And the latest is of course, solving the “English problem”.

When Mahathir Mohammad decided to preach for the teaching of Maths and Science in English during his tenure as the PM, one wonders what the objective was. What was the problem which was sought to be solved by that move? I am asking because I have so many contradictory answers.

The then Education Minister seemed to suggest that that move was taken to improve the standard of English among our pupils. On 23rd June however, the Malaysian Insider reported that:
“The teaching of maths and science in English the last six years has not improved the performance of students in those subjects, the education minister admitted today.
“There have been changes but the difference is nominal,” said Tan Sri Muhyiddin Yassin.
He said there had only been a two to three per cent change since the policy was implemented in 2003.” (the full report is here).

So what was it? Was it to improve proficiency of English or to improve the students’ performance in Maths and Science? I have answered the earlier question. My opinion is that the standard of English is not going to improve just by teaching Maths and Science in English. As for the latter, if at all the DPM cum Education Minister did say that, I think he has totally missed the concept!

You don’t improve your performance in Maths and Science by changing the medium of communication in which you teach those subjects. Maths is Maths, regardless of whether it is in English, Arabic, Mongolian or Martian language. So is Science. If the Education Ministry had all these while been targeting to improve our students’ performance in Maths and Science by teaching these subjects in English, than I would say it has been a total waste of time, efforts and money.

As for the earlier objective of improving standard of English, who was the bright spark who thought that that objective could be met by teaching Maths and Science in English?
Proficiency in English is not acquired and will not ever be acquired by such method. In fact such move was more harmful to the students’ academic performance than it was helpful. The implementation of the whole policy, about 6 years ago, was to suddenly force students to take Maths and Science in English and the teachers to so teach them. Just imagine a Form 4 student. For the past 10 years, he was taught Maths in Bahasa Malaysia. He knew what “campur” and “tolak” were. Suddenly they respectively became “addition” and “subtraction”. And in science, “monoksida” and “reptilia” suddenly became “monoxide” and “reptile” respectively. Does that help him to be more proficient in English?

In July apparently the Government will announce its stand on this issue. God forbids if it decides to revert to teaching Maths and Science in Bahasa Malaysia, after about 6 years or so that Maths and Science are taught in English. Our children don’t deserve to be treated like some lab rats. They are not and should not be treated as some guinea pigs while our fickle-minded policy makers struggle even with the whole concept itself.

And the worst thing is that there is a niggly feeling that a political decision, as opposed to a diligent decision, will be made. This issue has somehow managed to become a political issue although it should not be one. This is not about the position of Bahasa Malaysia in this country. Worst still, this is not about the special “rights” or “position” of the Malays in this country.
To say that I am disappointed with the reasons given by the Pakatan Rakyat politicians and some academicians in opposing the Government’s move to teach Maths and Science in English would be an understatement. To these people I would like to appeal, please don’t turn this issue into a political one. And to the Government, please, for once, make the correct decision base on our conscience and the necessity to make our children better for their future as well as the future of this country.

To my mind, if the Government is serious at tackling this issue, it should really firstly, go to the ground and determine what the actual problem is. Then it should investigate the reasons for such problem. Only then it should consider the available solutions. When that is done, it should decide the methodology of implementing the solution(s).

There must however be room for improving the policy. The Government must be able to tweak the system every now and then if anything is found lacking or when such tweakage is necessary to yield improvements. But that doesn’t mean that the Government should be able to reverse its earlier decisions and make an about turn. Worst still, the Government should not let political pressure dictate such policy.

We, and our kids, have had too many of those. Our children should not be the sacrificial lambs, readily sacrificed for political survival or popularity. May I remind that our children’s education has been entrusted by the people to the Government. And the people expect that trust to be performed diligently, unemotionally and honestly.

PS
Encik M Bakri Musa posted a comment on my article at the Malaysian Insider. He asked me what, in my opinion, should be done.

Well, I cannot confess to have an answer to that question because I do not have sufficient facts of the problems as well as the cause for such problems. However, if we are talking about improving the standard of English, written and spoken, of the students, the first that I would do is to adopt a holistic approach towards solving that problem.

The objective must then be to improve such standard. The time within which to achieve that objective should be as soon as practicable. Then a suitable English syllabus designed to teach our students English as a business language (or as a second language, communication language – depending on the objective) should be drawn up with the help of experts. After that we would have to train the teachers. And list out and prepare all the materials which we need. Only after all these are met should we start introducing the lessons. It must begin at Standard One.
It must be holistic. We should not, with a view of a quick fix, start imposing things without much thought.

In addition, a new culture must be started. It would include inculcating our children the love for books (in English, preferably). They must be encouraged to converse and write in English. It will take time and a lot of efforts. But if that is what is needed, than we would owe it to our children to do it.

Teaching Maths and Science in English alone will not bring us anywhere.


Thursday, June 18, 2009

Visiting the Malay "Rights"

I have been labelled anti this and that. Apparently, I am also pro this and that, or the other. As such, I am going to begin this article with a disclaimer, just as all accountants do on their reports. This article contains my interpretation of the relevant Constitutional provisions in respect of the “rights” of the Malays. And please read the next sentence real slowly. It is not intended to question anything, whether rights or otherwise, belonging to anybody, regardless of his or her race, faith or political leaning.

Malay rights. What a subject. The mere mention of it evokes so many emotions. So much anger and resentment have resulted – on both side of the fence - from this subject. It has been explored by the likes of Awang Selamat, Mahathir Mohamad, Ibrahim Ali and various NGOs. Our politicians have shouted and screamed about it. Warnings of mayhem and amok have been sounded in case of a challenge against these rights. Even HRH the Sultan of Perak had spoken about it recently. But I notice not a single person out of 27 million of us has actually taken the trouble to spell out what these rights actually are. And so, let me be the first one to do it.

The supreme law of this country is our Federal Constitution (“FC”). That means every law and policy must be in adherence with the FC. Otherwise, such law or policy would be void for being unconstitutional. We therefore have to look at the provisions of the FC to determine these so called rights of the Malays.

Generally, article 8 provides that all persons are equal before the law. I say “generally” because there are exceptions to this rule. Clause 2 of article 8 says that there shall be no discrimination against citizens on the ground of religion, race, descent, place of birth or gender except as expressly authorised by the FC. So, there you go. All of us are only equal up to the extent as provided by the FC. This means we may be discriminated if the FC expressly allows it.

Let’s cut a long story short. Article 153 of the FC is right at the centre of this issue. It is a fairly long article, with 10 clauses in it. Basically, these are what that article provides.

Firstly, it says that HRH the YDP Agong has the responsibility to safeguard the “special position” of the Malays and natives of Sabah and Sarawak. Notice that the words used are “special position”, not “special rights.” Notice also that the safeguarding is not only restricted to the Malays but also the natives of Sabah and Sarawak (the “Natives”). But that is not all. It also says that HRH the YDP Agong is also responsible to safeguard the “legitimate interests” of other communities. Notice the differences at what is being safeguarded. As for the Malays and the Natives, it is their special position. While in respect of other communities, it is their legitimate interests.

At this juncture, we should know what Malay is. Article 160 defines Malay as a person who professes the religion of Islam, habitually speaks the Malay language and conforms to Malay custom. It is not a scientific definition. It is one of the most absurd definitions I had ever come across in any written law. How could you define Malay as a person who speaks Malay and conforms to Malay custom when the very word which was sought to be defined in that definition is the word “Malay”? It is like defining mango as “a fruit which tastes like mango”. Anyway, I digress.

Under article 153, HRH the YDP Agong is given the power to do the followings:

A. To exercise his functions under the FC in such manner as may be necessary to safeguard the special position of the Malays and Natives;
B. To ensure the reservation for the Malays and Natives of positions in the public service, scholarship, exhibitions and other similar educational or training privileges given by the Federal Government in such proportion as he may deem reasonable;
C. To ensure the reservation for the Malays and Natives of any permits and licenses if such permits or licenses are needed for the operation of any trade or business as he may deem reasonable; and,
D. To ensure reservation for the Malays and Natives of places in any university, college and other educational institution providing education after Malaysian Certificate of Education (SPM) or its equivalent in such proportion as he may deem reasonable in the event the number of qualified person for any course or study is more than the number of places available.

The rest of article 153 is concerned with the prohibition against depriving licenses or permits from the non-Malays or non-Natives if they have been in possession of such licenses or permits all along. This is beyond the scope of this article.

The most important thing to be noted from this provision is the fact that there is no right whatsoever conferred to the Malays or Natives. The provision does not say, for example, that “the Malays or natives of Sabah and Sarawak shall be allocated 75% of all places in universities, colleges or other education institutions or 65% to all scholarships available in Malaysia every year.” When we speak of “rights”, we speak of entitlements which are possessed by a person or body of persons. These entitlements would then be enforceable by law. Taking my example in the previous sentence, a class action to enforce such rights may be brought by the Malays or Natives if such rights are denied them in any year if the provision in the FC is couched as such.

However, that is not the case in the FC. What is provided is a power to HRH the YDP Agong to reserve licences, permits, scholarships, places in universities or positions in public service for the Malays and Natives in such proportion as he deems reasonable. That power is undeniable and clearly defined. The FC however, in my humble opinion, stops short from conferring any enforceable right.

Question may be asked as to how may HRH the YDP Agong exercise that power. The answer is in clause (2) of article 153. Clause (2) provides that power shall be exercised by HRH the YDP Agong in accordance with article 40. That simply means that the “power” conferred to HRH in article 153 is not exercisable by HRH at his discretion at all. That power is exercisable on the advice of the Cabinet or any Minister acting under the general authority of the Cabinet. By convention, that person is the Prime Minister.

In the big scheme of things then, HRH the YDP Agong does not have any say on how those things are to be “reserved” for the Malays and the Natives. Essentially, it is the Government, through a Cabinet decision, which draws out the policy on how this power is to be exercised. Basically, the Cabinet decides the criteria for such “reservation” and also for the distribution of the matters mentioned in article 153. That means, all these while, it is not UMNO alone who decides. It is the Barisan Nasional as a whole, which means the matter has all along been decided by UMNO, MCA, MIC and all the component parties within the BN.

Nowadays questions have been raised as to why students with lower scores could gain admission into universities while students (non-Malays) with higher scores could not. The same question is raised with respect to the grant of scholarship. In the commercial world, questions are being raised on the distribution of government contracts and also the requirement for a certain percentage of Malay shareholdings in corporations.

On the Government side, these questions have been received with absolute disdain. These are treated as a challenge of the rights of the Malays. Rhetoric abounds. Shouts of “ungrateful migrants” could be heard. There is even suggestion that to question these matters is to question the power of the Ruler under article 153. The “social contract” is referred to.

In my humble opinion, that is misconceived. Nobody is asking for HRH the YDP Agong’s power under article 153 be removed. I think, rather, what is being questioned is the policy which underlies the exercise of the power as opposed to the power itself. It must be noted that article 153 repeatedly provides that HRH the YDP Agong shall exercise his power as “he may deem reasonable”. Perhaps such “reasonableness” is the key.

We profess to have a democratic Government and system of politics. If so, surely Government policies, especially those which touch the very basic and fundamental rights of the people, such as the right to education for all citizens, could be discussed, analysed and even questioned. And surely, a good Government whose heart is with the people and the country would not dismiss such questions nonchalantly.

Otherwise, I suppose, the people could effect a change in such policies by changing the policy makers.

Monday, June 15, 2009

The RPK case - grounds of judgment

With regard to my post "The RPK case - a significant victory", I would like to inform that the Federal Court's grounds of judgment, as written by the Chief Judge of Borneo, Justice Richard Malunjum, could be found at the the Court's website.

Among others, the Court said:

"18. In the present case the two-member panel considered the application for the recusal of Augustine Paul FCJ. Ordinarily such sitting is contrary to section 74(1) of CJA which stipulates that ‘every proceeding in the Federal Court shall be heard and disposed of by three Judges or such greater uneven number of Judges as the Chief Justice may in any particular case determine’.


19. However for the reasons given in their Judgment as indicated above the two member panel ruled that they could continue with the hearing.


20. With respect we do not think it is tenable to say that the hearing had commenced just because an application for adjournment was made and allowed."

Quite ironically, the Federal Court had quoted, with approval, Justice Augustine Paul's minority judgment (when he was in the Court of Appeal) in the case of Wan Khairani Bte Wan Mahmood v Ismail Bin Mohamad & Anor [2007] 4 MLJ 409, where he said:

"The phrase ‘… in the course of a proceeding …’ in s 42(1) of the CJA is a reference to a proceeding that has already commenced. What requires consideration is the stage to which the proceeding must have moved before resort can be had to s 42(1) of the CJA to enable
the remaining judges to continue with the proceeding. It must be remembered that the object of the section is to prevent the inconvenience of a rehearing of a proceeding to the parties when a member of the panel hearing it is unable to continue to do so. This will certainly not include a proceeding which has been merely called up for hearing. The phrase ‘… in the course of a proceeding …’ must therefore refer to a proceeding where its hearing has commenced and proceeded to such an extent that it will be inconvenient to have it reheard."

The Court therefore concluded:

"26. Accordingly, when the two-member panel proceeded to hear the recusal application, section 74(1) of CJA was offended. Unlike in Wan Khairani (supra) where the majority judgment was dealing with an order which even a single judge could hear, the present case did not have that option.
27. It is therefore our considered opinion that there was a quorum failure."

The Court then set aside the order made by the previous sitting on the 4 motions.

Friday, June 12, 2009

PAS Should Be Banned?

And so, it needs no further proof that political assemblies could churn out rationalities which could sit anywhere between the state of burlesque and the city of grotesque. Just look at the recently concluded PAS muktamar.

Apparently in Malaysia, no political assembly could be completed — and probably regarded as meaningful — without the usual mega important gimmick or resolution. In Malaysian politics, perhaps the two are even one and the same. Hence the unsheathing of the keris and the subsequent kissing of it during the Umno general assembly. That was the gimmick. That was to be followed by the usual we-are-the-Malays-and-we-have-our-rights-and-don’t-challenge-us-or-else-we-would-run-amok rants. That was the resolution. After that, everybody had tea and curry puffs and went home.

The PAS assembly this year will be remembered for exactly two things. And no. It won’t be remembered for some blueprint on how the Malaysian economy would be brought out from the global economic doldrums or the likes. Not for any grand plan for the promotion of Islam as a peaceful and total way of life too. Rather it will be remembered for the “unity government” debate (this I suppose, is Hadi’s equivalent to Najib’s 1 Malaysia thingy) and the call for the banning of Sisters In Islam (this I think is PAS’s answer to the unofficial banning of black T-shirts and the act of holding candles by the Home Ministry).

Apparently, what PAS had actually demanded was not the banning of SIS. PAS was asking that SIS should not be named as such because SIS is not very Islamic. The PAS Youth wing is reported by a Malaysiakini report to have said that SIS should be changed to Sisters in Malaysia if it wishes to pursue “universal rights which are subjective” and at the same time questioning Islamic principles as stated in the Quran and hadiths.

That of course begs the question whether Islam’s concept of “universal rights” are different from the “universal rights which are subjective”. And is there such a thing as universal rights which are subjective in the first place? I mean, I had always thought that universal rights are rights which are universal to every human being, regardless of creed, breed or religion. And if Islam is to be accepted as God’s answer to a good life, how could Islam’s concept of universal rights be any different from the Christian’s concept of the same?

Zulkifli Noordin of course had to join in on this issue. He is, after all — according to him — destined to defend Islam. He said SIS is not very Islamic. Its officers don’t wear the “tudung” and are unmarried. And perhaps SIS should change its name to IWK — a pun of the name of the sewerage services company, quite obviously — which according to him stands for Ikatan Wanita Kosmopolitan. Well Zul, why don’t you quit PKR and join PAS instead? And change your name to ICT, short for Irrelevant Little Twerp (I know, it does not run, but hell, just do it please).

PAS, as I understand it, stands for Parti Islam Se-Malaysia (Pan-Malaysian Islamic Party). In 1981, Datuk Abdul Hadi Awang, its current president, said this:

“My brothers, believe me. We oppose Umno not because its name is Umno, we oppose the Barisan Nasional not because its name is Barisan Nasional. We oppose them because they continue with the constitution of the colonial, continue with the regulations of the infidel, continue with the regulations of the ignorant. Because of that we struggle to fight them. Believe me brothers, our struggle is a divine struggle (jihad). Our speech is jihad, our donation is jihad and because we struggle against these groups, if we die in our fights, our death is martyrdom, our death is an Islamic death. We do not have to join the Jews, we do not have to profess Christianity, we do not have to profess Hinduism, we do not have to profess Buddhism, but we will be infidels if we say politics is a quarter and religion is a quarter.”

And now he is propounding the concept of a unity government with Umno and the BN. He even went against what Tuan Guru Nik Aziz say on that issue. To him now, it is about the people being united. It is about saving the country. Saving the country from what? And he claimed that PAS’s partners in the Pakatan Rakyat know about all these talks with the BN and Umno. PKR and DAP said they never knew about it. And yet he refused to let that issue go away.

The thing is he used to think, and preach, that Umno and the BN are the agents for the infidels. And anybody who struggles against them would die in a state of martyrdom. Now PAS, under his leadership, wants to work with these very same people. That is not very Islamic. Therefore, PAS should drop the “Islam” from its name.

Oh, one more thing. PAS had a pact with its PR partners. Now it is going against its PR partners by pursuing a unity government. That is a breach of trust. A breach of a partnership agreement too. That too is not very Islamic. In fact, it is not Islamic at all.

So please. I hope JAIS or whatever will look into this matter. I would echo Zulkifli Noordin’s call for the National Fatwa Council to have a “muzakarah” and demand an explanation from PAS about this. If PAS is found to be unIslamic, perhaps it should not use the word “Islam” in its name.

Or perhaps, PAS should be banned!

Tuesday, June 09, 2009

The RPK case - a significant victory

Civil societies advocates today gained a significant victory in the Federal Court in the case involving the appeal by the Home Minister against the release of Raja Petra Kamaruddin from his ISA detention.

Briefly, the Federal Court today declared that the last sitting of the Federal Court which heard and dismissed four applications (motions) by RPK was not properly convened. Consequently, the Federal Court today set aside all orders made on the said motions.

In order to appreciate the significance of today's order, allow me to give a chronology of events.

Background

RPK was released by Justice Syed Helmy, a Judge of the High Court at Shah Alam. The Home Minister appealed against this release to the Federal Court.

Day 1 at the Federal Court

In the morning of the hearing day, we were informed that the Coram which will hear the appeal consisted of Justices Nik Hashim; Zulkifli Makinuddin and Augustine Paul. RPK advised us that he remember writing articles about Justice Augustine Paul a number of times during the Anwar Ibrahim trial. Some negative remarks were made about him by RPK in his writings.

It was felt that an application for Justice Paul to recuse himself from hearing the appeal should be made. When the matter was called for hearing, Imtiaz asked for a one day postponement in order to prepare and file the recusal application. The prosecution team objected vehemently. The Court initially refused to grant a postponement, even though we made it clear that we would file the recusal application the next day. We were instead asked to make the application there and then, orally.

Imtiaz told the Court that that was impossible to do because we needed to look at evidence and adduce the same through affidavits. The Court asked us why we had not come prepared with the application to recuse and told us to proceed. Imtiaz told the Court that we had had no notice that Justice Paul was going to sit! We were nevertheless told to proceed.

At that point of time, I stood up and walked to the public gallery - where RPK was sitting - to get his instructions. He whispered to me his instruction. His instruction was clear. We were asked not to participate in the appeal. In short, we were supposed to walk out.

I asked him to repeat his instruction, just to be very clear about it. I also told him that if we did that, the appeal would go on without his case being heard, just so he knew the risk of walking out. He repeated his instruction.

I walked back and told Imtiaz of RPK's instruction. Just then and at that precise moment, the Court relented and gave us a postponement.

The next day, we filed the application for recusal. We also wrote a letter to the Court expressing our view that perhaps, in the interest of justice, Justice Paul should not even sit to hear the recusal application.

Day 2 at the Federal Court - hearing of the motion for recusal

On this day, there were 4 motions for hearing. First was the motion for recusal which we just filed. I will touch on the other 3 later in this post.

When the day started, Justice Paul, at the outset, said that he had formed the opinion that in the interest of justice, "everything which need to be said should be said" in the hearing of the recusal motion. He then said under the circumstances, he would not sit to hear the recusal application.

After that, the motion for recusal was called up for hearing. Justice Paul then excused himself and left. Justice Nik Hashim, who was presiding then told us to proceed.

At this point of time, Imtiaz pointed out that the law, namely, section 74 of the Court of Judicature Act, requires a panel of 3 Judges or such greater uneven number of Judges. As it was, there were only 2 Judges (as Justice Paul had excused himself).

The 2 sitting Judges pointed out that section 78 of the same Act allows any remaining Judges, not less than 2 in number, to continue hearing a matter if any Judge in the panel is unable, through illness or any other cause, to hear the matter. They were then of the opinion that section 78 allows them to continue with the case.

Imtiaz pointed out that section 78 did not apply because that section talks about a case which had started before, say, 3 Judges, and in the middle of it one Judge became unable, through illness or any other cause, to continue. In such a case the 2 remaining Judge may continue. However, in our case, the matter had not yet started or commenced.

The Court disagreed and ordered us to proceed. Imtiaz told the Court that the decision to continue with only 2 Judges would found a ground for us to apply for a review later. At this point, Justice Nik Hashim told us that "you can do whatever you like" and asked us to proceed.

The motion for recusal was thereafter heard and dismissed. Justice Nik Hashim then called on Justice Paul to "take his rightful place."

Day 2 - hearing of the other 3 motions

There were another 3 motions to dispose off. One was an application for a panel of 5 or 7 Judges. After Justice Paul had rejoined the panel, this motion was quickly heard and dismissed.

The next 2 motions were applications to adduce further evidence. There were 2 pieces of evidence which were sought to be adduced by RPK, namely;

  • the evidence given by Supt Gan in RPK's case that the police had never investigated the truthfulness or otherwise of RPK's article on the Altantuya murder. This, to our mind is relevant because that article formed one of the basis for RPK's ISA detention;
  • the evidence showing that after RPK was released from his detention by Justice Syed Helmy, the security of the nation had not been threatened in any way.

On the first one, I was asked by Justice Paul what the relevance of that evidence was. I answered that it goes to showing mala fide or bad faith. Justice Paul asked me "what bad faith" and told me to "be careful" of what I submit. I told him that bad faith went to the crux of the matter and therefore it was relevant. Since the police had not even investigated the truthfulness or otherwise of the article, it was clear that his detention based on the same article was made in bad faith, I submitted.

On the second one, Justice Nik Hashim asked me the relevance of the evidence. I told him that the Minister had signed a 2 year detention order. RPK was therefore deemed to be a threat to national security every single day for the next 2 years. The fact that after his release, national security was not in any way threatened would be relevant. ISA is after all not punitive in nature but preventive. Justice Nik Hashim disagreed with me and asked me who said that. I respectfully pointed out that the whole ISA regime is designed to prevent a threat to national security and not to punish people.

Both applications (or motions) were then dismissed.

The appeal proper was then fixed to be heard on a different day not long after.

Day 3 - review application

We quickly prepared and filed an application to the Federal Court to review all the above decisions. The basis for doing so is that the Federal Court was not properly convened as only 2 Judges were sitting. Because of that, all decisions made in dismissing the aforesaid 4 motions were not valid and ought to be set aside.

Ordinarily, the decision by the Federal Court is final. There is no more avenue for appeal. However, in some exceptional cases, the Federal Court may review any decision made by it. One of the established ground for review is that the Federal Court had no jurisdiction or power to make the order under review. To our mind, the previous sitting of the Federal Court clearly had no jurisdiction nor the power to make those orders.

The review application was heard before a powerful panel consisting of the President of the Court of Appeal (number 2 Judge in ranking, after the Chief Justice), Justice Allauddin Mohd Shariff; the Chief Judge of Malaya, Justice Ariffin Zakaria and the Chief Judge of Borneo, Justice Richard Malunjum.

The hearing went well, as opposed to the highly volatile nature of the hearing before the previous panel. The prosecution team however made it a point to say that we were:

  • trying to shop for Judges (to choose Judges)
  • driven by malice
  • guilty of abuse of the Court process
  • guilty of contempt

To say that I was livid is an understatement. I had written about this episode here. Imtiaz handled those allegations in his usual cool, calm and collected way. I, on the other hand, was preparing to hurl the various bundle of documents at the prosecution team!

The Decision Today

Today, the Federal Court delivered a unanimous written decision on our application for review. The decision was written by Justice Richard Malunjum. It was read out by the Court Registrar in open Court.

Justice Richard Malunjum found that the reason proffered by the previous panel of 2 Judges to "continue" with the hearing of the motion despite Justice Augustine Paul having excused himself and left was "untenable". That is because the case had not commenced or started and as such section 78 of the Court of Judicature Act did not apply.

As such, there was, in Justice Richard Malunjum's decision, an "inherent failure" of the Coram in the last Federal Court sitting.

His Lordship therefore exercised the Court's power to review the orders made by the last panel. He found that the dismissal of the recusal application was not in order and he set aside the order for dismissal.

Because the recusal application was improperly dismissed, it follows that the hearing of the 3 motions which took place after the dismissal of the recusal application, was also tainted or in his word, "contaminated." The orders dismissing the 3 motions are therefore also set aside.

What it Means

RPK is not yet out of the wood. What today's order means is that all parties have to start afresh. All motions filed by RPK are now kept alive and will have to be reheard by the Federal Court. A fresh hearing date will now be fixed for all the motions and the appeal by the Home Minister. We will be duly informed of the date as and when it is so fixed.

Personally though, I feel vindicated. At least it is now proven that I was not driven by malice. I was not contemptuous. I didn't indulge in Judge shopping. And no, I didn't abuse the Court's process.

Monday, June 08, 2009

Ya-Sin, Surah 36 of the Holy Qu'ran

This must have been one of the most beautiful recitation of the Holy Qu'ran that I have ever heard. Please click here.

For the benefit of the non-Muslims, that was the recitation from Surah 36 of the Holy Qu'ran, namely Surah Ya-Sin. The English translation of the Surah Ya-Sin could be viewed here.

Surah Ya-Sin is recited by Muslims for many purposes. It is recited when someone is sick or when someone needs to gain a sense of confidence (for example, before he or she goes into the exam hall). It is also recited to treat or cure someone who is believed to have been possessed by evil spirit.

However, most importantly, the Surah is recited to someone who is on his or her death bed, in order to "smoothen" his or her journey to meet his or her creator.

I have viewed various injustices in this life. I have heard so many lies being told. I have seen so many trusts being broken. My rights are stolen. My mind is intruded. My soul is invaded and tortured. I have seen rapes, molestations, thefts, abuses and down right evil.

Sometimes I exist not. I only exist in so far as I am permitted to exist. I am a slave. A slave to this life which is planned, shaped and thrust upon me. And I don't have anywhere to go. Nowhere to run. I feel trapped. Watched. Observed. Controlled.

Sometimes I am angered. And the feeling of helplessness consume me. Some other times I just want to give up. I had wanted to retreat and find solace.

But at the end of it all, I have faith in God. And His rewards. As well as His promised judgment on judgment day. And from that I draw strength.

"[Yusufali 36:53] It will be no more than a single Blast, when lo! they will all be brought up before Us!

فَالْيَوْمَ لَا تُظْلَمُ نَفْسٌ شَيْئًا وَلَا تُجْزَوْنَ إِلَّا مَا كُنتُمْ تَعْمَلُونَ {54}

[Yusufali 36:54] Then, on that Day, not a soul will be wronged in the least, and ye shall but be repaid the meeds of your past Deeds.

إِنَّ أَصْحَابَ الْجَنَّةِ الْيَوْمَ فِي شُغُلٍ فَاكِهُونَ {55}

[Yusufali 36:65] That Day shall We set a seal on their mouths. But their hands will speak to us, and their feet bear witness, to all that they did."

Perhaps all of us should remember that.

Wednesday, June 03, 2009

The Manohara Episode - innocent until proven guilty

I don't normally write about private matters, especially when the whole facts are unknown. But the Manohara stories have evoked so much ill feelings towards YTM Tengku Temenggong Muhammad Fakhry that I feel I have to state my 2 sen's worth about the matter.

I wish to start by saying that I do not know the facts of this matter. All that I have are information which I got from the various reports on the Internet. And I do not have the means to verify those information. Being so, I am afraid that this post is going to be speculative, at best.

The latest take on this episode is titled "The Manohara Escape and Unsung Heroes" appearing on Malaysia Today. The story appearing in that article is however inconsistent with earlier reports which I had read a day earlier. Chief among which is the story about how Manohara pressed the emergency button of the elevator at 3 am, which was reported a day earlier.

In the aforesaid story however, the chronology of events are as follows:

  • Arriving at the hotel at around 8.30pm, they (manaohara's mother and her sister) entered the hotel lobby,
  • The police arrived less than 10 minutes after they arrived, and,
  • “Then I (Manohara's sister) heard the emergency alarm from the elevator. A woman and a man then came running from the lobby area towards the elevator carrying what looked like a doctor's bag. They (the security guards) told them to go to the third floor.

    “We tried to follow them up, but they stopped us.”

    Soon after, her mum and the police also went up to the third floor while Asih stayed behind in the lobby.

So, in this story, it was not 3 am but it was about 8.40pm that the emergency alarm was sounded. That's the first inconsistency.

The earlier reports suggested that Manohara knew that her mother was at the hotel at the time she pressed the emergency alarm. That must be one hell of a coincidence! How did she manage to know that her mother was in the hotel if she was so closely guarded all the time? And quite how did she manage to get out of her room at 3am and got into the elevator if she was so guarded all the time? How did she escape the watchful eyes of all the body guards?

In the earlier reports too, it was Manohara who called the police. In the aforesaid report, it was the mother and her sister, on the advice of the taxi driver, who called the police. Which is which?

In this latest report, apparently the mother and her sister, while sitting at the lobby, were approached by another Indonesian lady who happened to live at the same hotel and on the exact same floor where Manohara was staying, namely, the 3rd floor of the hotel. Wow. That was quite a coincidence, I must say.

As the story goes:

"Said Asih: “A lady, who turned out to be an Indonesian guest staying at the hotel, came up to us while we were waiting near the elevator.

“She asked my mum if she was Manohara's mum. My mum said yes, and she told us that she saw Manohara on the third floor, but the people upstairs were not letting her come down."

That was quite a coincidence. And as if this was one big movie, precisely at that time, while the mother and her sister were talking to this Indonesian lady, the emergency alarm went off from the elevator. Then:

Then I heard the emergency alarm from the elevator. A woman and a man then came running from the lobby area towards the elevator carrying what looked like a doctor's bag. They (the security guards) told them to go to the third floor."

Who were these woman and man? Where did they come from? Why were they carrying a medical case? This suggested that these woman and man knew before hand that there was going to be an emergency. How could that be the case?

The icing on the cake is this.

Soon after, her mum and the police also went up to the third floor while Asih stayed behind in the lobby.

Said Fajarina: “When I got up to the third floor, I saw Manohara inside the lift, sitting on the floor crying, pressing the alarm button. She refused to get out.

When she saw me, she started screaming for me and said, 'Mother, never let me go again'.”

Asih said that she later met her sister and her mother in a hotel room on the third floor belonging to the Indonesian lady who had earlier tipped them off about seeing Pinot on that floor. She had allowed them to use her room.

Asih said that Pinot later contacted American embassy officials who turned up with officials from the Indonesian embassy.

Fajarina said that they stayed in the room from 9pm to 4am and negotiated with the prince, who did not want to let her daughter go."

This is the most unbelievable part of the story. It does not make any sense at all. Here are 3 people who are supposed to be scared stiff of the Tengku Temenggong. Human instinct would make them run away from the scene as soon as possible. But instead, they stayed in a room on the same floor till 4am!

Why would they negotiate with the Prince? If she was abused, wouldn't she run away immediately. Negotiate? What was there to negotiate? Negotiate to run away?

Then:

"She (the mother) added that the prince relented only after his lawyer advised him that he could be in trouble with the law if he refused.

The family then made their way back to Jakarta on an early morning flight on Sunday."

What trouble with the law? What Singaporean law had the Prince breached or broken? What criminal offence had the Prince committed in Singapore? Being with his legal wife is an offence?

Truthfully, I find the stories incredible.

I think we should give the benefit of the doubt to the Prince. First of all, it is a private matter. Apparently Manohara is now considering legal actions. If so, the truth would soon come out.

But before then, in my book, the Prince is innocent until proven guilty.

Tuesday, June 02, 2009

The Proton Saga (part 2)

Proton Holdings Berhad, at group level, made a loss of RM338 million for the financial year ended 31.3.2009. That means, from April Fool's day in 2008 till the eve of April Fool's day this year, Proton lost RM338 million. The full report can be read at the Malaysian Insider.

Proton earned a total of RM6.49 billion in that period. That is an increase of RM865 million over its earning for the previous financial year (2007/08). Although Proton earned less in 2007/08, it managed to post a profit of RM144 million in the same period. Quite obviously, Proton's operating costs have gone up in 2008/09 as compared to 2007/08.

In addition, Proton sold more cars in 2008/09 than in 2007/08. In 2008/09, Proton sold 156,845 cars while in 2007/08, it only sold 139,952 cars.

Let's analyse the figures.

In 2007/08, Proton's total earning was RM5.625 billion. It sold 139,952 cars. What that means is, Proton's average earning per sale was RM40,192.35 (5.625 billions divided by 139,952). In that same period, Proton made a profit of RM144 millions. Which means, for every car sold, Proton made a profit of RM918.00 (144 millions divided by 139,952). Therefore, in 2007/08, the break even point for Proton was RM39,274.35 per sale (RM40,192.35 minus RM918.00).

In 2008/9, using the same methodology, Proton's average earning per sale was RM41378.00, representing an increase of RM1186.00 than the average earning per sale in 2007/08. Proton however made a loss of RM338 millions. Which means, for every sale, Proton loss RM2155.00. Proton's break even point had in fact risen to RM43533.00, a rise in cost of a whopping RM4259.00 per sale!

At this juncture, I must say that an average  profit of RM918.00 per sale in 2007/8 was disappointing. In fact, "disappointing" is an understatement. Embarrassing is more like it. And for the average cost per sale to have risen by RM4259.00 in the following year (2008/09) requires a lot explaining to do.

The thing is this. Proton is the darling of the Mahathir Government. It continues its "darling" status under the Badawi administration. It is exempted from import duties in respect of its imported components. That results in hundred of millions of ringgit in revenue loss for the country. Consequently, it is us, the people, who are subsidising Proton.

In addition, the Government subsidises the production by giving grants and further exemptions. To top it up, the Government protects Proton and its products by imposing high import duties on other imported cars. Approved permits are also required for imported cars just to protect Proton's business. One AP costs about 25000 ringgit (there are instances where APs are sold at 30000 ringgit!). Ultimately, it is us, the people, who are paying all these hidden costs.

As a road user who do not buy a Proton, I am in fact subsidising Proton through the followings:

  • the loss in revenue by exemptions against duties and taxes given to Proton
  • the grants given to Proton
  • the amount I have to pay for the AP for my imported car
  • the high import duties imposed on my imported cars

Added to that, the man hour costs which every Proton owner waste in the workshop because of the frequent problems he or she  encounters with his or her Proton. The time to get there. The time spent on waiting. The money spent on repairs (just bear in mind the famous Perdana gearbox problems and the famous power window problems in the Waja and Gen-2, for instance). The stress suffered arguing with the Proton people. All these are losses suffered by us, the people. All in the name of protecting Proton and pursuing a lost dream.

After almost 25 years, Proton makes an average RM918.00 profit in 2007/08 for every sale! Look at Honda. Within 20 years of the ubiquitous Honda Life, it manages to introduce a ground breaking Honda NSX with the now industry standard variable valve timing (V-tec) system.

Within 15 or 16 years of Honda Life, Honda was F1 champion, during the turbo days with its 1.5 litre engine! It was such a fast and capable car in F1 so much so that turbo engines had to be banned form F1 at the risk of Honda winning F1 championship non-stop for the next 15 years! What has Proton won? The MME at Sepang? The Malaysian Super Series?

What ground breaking technology has Proton managed to come out with in its 25 years? The truth is Proton can't even build a trouble free power window, let alone a ground breaking gear box system or ECU.

The question is, then, what has gone wrong? Who is responsible for this auto debacle called Proton? Why is it not fixed? How long more are we, the people of Malaysia, are going to suffer losses, notional or otherwise, because of Proton? Why must we, the people of Malaysia, continue to assist Proton?

Various accounting-babbles were blurted by the Chairman in trying to explain the losses. Apparently, it was mainly due "to  Proton’s decision for the impairment of PPE and inventory write-down for certain models impacted by volume contraction." Big words indeed Mr Chairman, Sir.

What it simply means is that Proton had to reduce the book value of some of its cars and plants. Why, you may ask? Well, it is because cars of these models cannot sell. And therefore the plants or production lines for these models loss their book value. Why don't the wise Chairman tell us what PPE had been impaired and which models have to be written down?

My guess is the Savvy. An absolute wonker of a car. "Your first Lotus", as it was spun in Great Britain, to much ridicule  by Top Gear (you can watch it on You-tube, where Clarkson made a hell of an embarrassing joke about that marketing spin!). Excuse me. The Savvy is my first Lotus? Good God! How about the Waja then. My first Lexus?

Which begs the question, who is to be held responsible for the impairment and write downs? You don't just impair or write down for fun. It was done for a reason. And the reason is the abject failure of the relevant model and consequently, the PPE in respect of that particular model.

Who was behind the model? Who was responsible for the design and production? Who was responsible for the marketing aspect of it? It was obvious that the Myvi killed the Savvy even before it was launched. It was a debacle. Now, are heads to roll because of this?

Well, you and I know the answer. No head is going to roll. Nobody is going to be held responsible, let alone, accountable.

That is precisely the malady which infests Proton. And that is part of the problems. Added to that a vendor system which is not transparent and is so full of mediocrity, below industry standard quality and  probably, cronyism. All these contribute to this great Malaysian failure, Proton.

PS The first part of the Proton Saga can be found here.