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Monday, November 30, 2009

Justice is an illusion

It's really tough being a Judge. Really, I think it's a thankless job. A Judge can never do any right.

I think it was in 1996 that a soon-to-be-really-famous High Court Judge politely asked me and my opponent whether we would mind to remain in his chambers for some small talk after we had finished our hearing before him. As I had no other case to do, I obliged the Judge. So did my opponent.

He asked both of us how long we had been practising. I told him I had practised for about 10 years. He smiled and said that I could be a Judge soon (as the Federal Constitution states that a person who has been a lawyer for 10 years or more could be a Judge).

I was wondering what was in the Judge's mind. He looked tired. Something was bothering him. He looked and behaved almost like he was resigned to the hopelessness of it all. He was looking at both me and my opponent intently. There was something that he wanted to say but couldn't.

Finally he asked, "what do you think of justice?" My opponent was senior to me and so he answered first. I can't really remember what my opponent said. After he had finished saying his piece, the Judge looked at me. "What do you think?" he asked me.

I looked at him and without hesitation I said, "Judge, I don't believe in justice!" He was petrified! I know he was going to ask why the hell I was practising law then. Before he did so, I continued, "Judge, human beings are incapable of dispensing justice. Only God can do so. Justice is subjective. The winning party will say they have got justice. The losing party will never say so."

The Judge was unimpressed. He looked deep in thought. He was clearly ruffled by what I had just said. Finally, he said, "could you then tell me what me and all my brother Judges have been doing all these while. And what you and your learned friends have been doing appearing before us?"

"Judge, I am a law practitioner, not a justice practitioner. You and your brother Judges have been dispensing the law all these while. You have been applying the law. In modern societies like ours, adherence with and applying the law brings the connotation that justice is being done. That's it. Justice is a connotation. It is not real. It is a corollary of the application of the law by the Court or Judge. The real justice will only be seen when we all die."

"The law is not always just. Take the land acquisition law for example. How just is a law which permits the Government to force a landowner to surrender his land to the Government? But if the law is applied and the Court imposes a suitable compensation to be paid to the landowner, the perception is that justice is done, but is it really done?" I postulated.

"My God", the Judge said. My opponent was cringing in his seat. "I have never thought about it that way,thank you for telling me," the Judge said, his eyes brightened up a bit.

We continued to chat for a bit after that. I was telling him that jurisprudentially, I belonged to the positivist school of jurisprudence. I believe that the law and morality should be separated. After about 20 minutes, we excused ourselves. As we were going out from his chambers, the Judge said, "have a good life both of you."

We thanked him. That was the last time I appeared before that particular Judge. Two or three months later, he rocked the Judiciary with his resignation. The reason for his resignation rocked the whole Malaysia and even the world. But life goes on in this country of ours. Nothing ever changed. People like this Judge just disappear from the map and from our memory.

I last met him in an event in Subang Jaya some months ago. He was still his jovial friendly self. And he looked much happier. May God bless him with a long and healthy life as well as peace of mind.

Fast forward to the present time.

When Justice Ariff Yusof (then he was a Judicial Commissioner) dismissed Gobind Singh Deo's suit against the speaker of the Parliament for suspending him (Gobind), many articles were written and posted on the net about it. Justice Ariff was questioned why he did not follow the Federal Court's decision in one of the Perak Menteri Besar constitutional circus. The Federal Court had in one of those cases held that the Court could review the decision of a Speaker.

Under the law, a decision of a higher court is binding on a lower court. Thus the decision of the Federal Court (which is the highest court in the land) would be binding on the High Court (where Justice Ariff sits).

In dismissing Gobind's suit against the Speaker of Parliament, Justice Ariff applied the clear wording of the law as stated in the Federal Constitution, which says:

"The validity of any proceedings in either House of Parliament or any committee thereof shall not be questioned in any court."

Justice Ariff opined that while the Federal Court recognised the power of the Court to question whether an act of the Legislative Assembly has any legal basis or otherwise, any act of the Assembly which is supported by any legal basis would be immuned from such scrutiny.

In all the articles written about his decision on the net, Justice Ariff was vilified by all and sundry, especially by the supporters of DAP or the Pakatan Rakyat. Some even called him stupid. Some others even questioned his impartiality.

Last week, in yet another high profile case, Justice Ariff held that MACC did not have the power to interrogate witnesses or potential witnesses after office hours. He then ruled that MACC's action in interrogating a potential witness at night was illegal and ordered compensation to be assessed and paid to the victim.

In doing so, Justice Ariff was of course interpreting the law as it is stated in the MACC Act. That Act says any person served with an order shall attend for examination and shall continue to do so "from day to day until the examination is completed" (section 30 (3) (a) of the MACC Act.

As the words "day to day" was not defined by the Act, Justice Ariff applied the literal meaning to the word and came to the conclusion that MACC does not have the right to force any person to give statement at night. Justice Ariff applied the law as he understands it. He applied the law as it is worded.

Many articles were also written about this decision, whether in the mainstream mass media or the net. The IGP made some statement which effectively ridiculed Justice Ariff's decision. The chief of MACC, while saying that MACC would abide by the ruling, was also sulking and whining like some small girls whose lollipop has been taken away.

This time the Pakatan Rakyat supporters hailed Justice Ariff as a hero of sorts. He was seen as a learned Judge who protects fundamental liberties. All the vilifications he received just after Gobind's case were quickly forgotten.

But, as I have said at the start of this article, there is no justice in this world. There is always one side which would say justice has not been served. My fellow blogger Rocky posted an article on his blog about Justice Ariff's decision. He somewhat said that Justice Ariff's decision is weird. Exactly, this is how he puts it:

"Well, I agree with blogger Syed Akbar Ali that in this case, the Court has acted really weird."

Apparently, the Scotland Yard, ICAC and Interpol could take statements at night. So, why not MACC? I must confess I do not know whether that is right. And I do not know what the law governing those bodies provide in terms of taking witness statements. I would also refrain from analysing whether MACC is comparable to all those bodies in terms of performance and ethics.

Whatever it is, Justice Ariff's decision will be appealed by the Attorney General. So, let's not go into the merit of it for the time being.

The point is the comments made under Rocky's article. This time, Justice Ariff is again vilified, especially by commentators who are obviously pro-government. One of the commentators noted that Justice Ariff is a former PAS legal advisor. He then concluded that "something is not right." Basically he was insinuating that Justice Ariff was being dishonest.

Another commentator asked whether Justice Ariff had any problem with the MACC. Perhaps the most unfair comment was this:

"Param Tak Suara said...

So how much did Karpal pay the judge?"

A Judge's good work will only last and be appreciated until his next decision which is unfavourable to the relevant party. That is obvious. Many of us have somewhat forgotten how Justice Ariff had conducted himself in accordance with the best tradition of the Judiciary. When the Nizar v Zambry case was fixed for hearing before Justice Ariff, he quickly made it known to all parties that he was a PAS legal advisor. He then invited arguments on whether he should disqualify himself. He later disqualified himself from hearing that case after listening to all parties interested.

That was how conscientious Justice Ariff was.

In Gobind's case he ruled against Gobind. What did that say about Justice Ariff's impartiality, considering that he was a PAS advisor? And now in the MACC case, he applied the law as he understands it. In doing that, he held against the MACC, and consequently the government.

To half of the world, he dispensed justice in all those cases. To the other half, he was a dishonest and partial Judge.

I think I have made my point.

Thursday, November 26, 2009

Selamat Hari Raya Aidil-adha

I am taking this opportunity to wish all Malaysians a Selamat Hari Raya Aidil-adha. To those who will be driving home, please do be careful and drive safely.

The Eid-il-adha (aidil-adha) is also known in Malaysia as Hari Raya Korban. This is to commemorate the day Prophet Ibrahim (Abraham) was asked by God to sacrifice his son, Ismail (Ishmael. There is however a divergent here as the Christians and Jews believe it was Isaac and not Ishmael. Some say God asked Abraham to sacrifice "his only son").

Prophet Ibrahim, without asking any question and after telling his son of the command, proceeded to "fling him down to his face" (Quran: 37:101-103). God then proclaimed that Prophet Ibrahim had fulfilled the vision and declared that it was a test.

The practice of slaughtering cows or goats on this day is derived its origin from these verses.

Sometimes I wonder whether these verses are a metaphorical call for selflessness and submission to God rather than a literal call for offering sacrifices of animals in order to please God.

I stand guided.

Tuesday, November 24, 2009

Freedom lifts us up to where we belong

I must say I was surprised at how much attention my article Enemies of the State (I owe this title to the Malaysian Insider as my original title was lame in comparison ) attracted.

There were many comments at my blog as well as the Malaysian Insider, where my article appeared. Zaidel Baharuddin, a fellow writer with the Malaysian Insider posted a comment and also ran a reply on his blog, Catatan Seekor Lipas. The famous Rocky of Rocky's Bru also ran a post on the topic which basically pitted my stand against that of Zaidel's aka the "Lipas Man".

I must say I am impressed with the passion shown by most of the commentators on either side of the fence. However the debate at Rocky's Bru had somewhat degenerated into a lawyer bashing event and the issue at hand transformed into:

  • a question of whether lawyers are of any use to the society.
  • and whether a doctor makes a better Prime Minister than a lawyer.

I will of course refrain from wading through such murky water because quite honestly I have a fear of vast, dark and vacuous space.

The article which I wrote was not at all intended to be a polemic on whether a particular system, be it democracy, socialism, communism or anything in between, could ensure more development and progress to the exclusion of other systems. Rather, that article was aimed at taking issue with Dr Mahathir's apparent stand that "too much democracy" is a hindrance to development and progress.

DrM's position is obvious from the comparison which he made, that is between India and China. The former, according to him, was too engrossed in democracy, unlike the latter. And the latter has more progress. I therefore concluded that it is DrM's position that a dictatorial system or a less democratic system would be better for development and progress.

DrM was at pain to show that freedom and liberty as enjoyed by the people, - or at least as demanded by the people - especially in the West are not good for development and progress. With that, I took issue.

What I wish to address here is the argument that human being would prefer to have food on their table or economic progress than freedom, liberty or even democracy in itself. Zaidel encapsulates this position when he commented:

"I'm pretty sure,  those starving hard working farmers in India who has to fight drought and fertilizer prices don't give a damn about freedom of speech or expression. It is those comfortably well paid lawyers with some extra time on their hands who are more concerned about these things and write about it."

The problem with that statement is the fact that it is rested on pure assumption.

Human beings are born free. The moment he comes out from the womb, he is freed from the constraints of the womb and thrust into this world a free human being. The first thing which he tastes, apart from the air which he inhales, is freedom and not food or drink.

Freedom of expression is tasted early in his life outside the womb. The first cry which a human being give is an expression, which he is then free to demonstrate. And he moves, his eyes opening up, his limbs moving in no particular pattern and without any specific control. Freedom and liberty are not only what which dignify us as human beings but they are our divine rights.

Zaidel talks of the poor and impoverished farmers in India. What if all the hardworking and starving farmers in India, or elsewhere, were locked up in a cage and fed food and drink to their heart's content but they were not allowed to speak nor go anywhere at all? Then they are given the choice of leaving the cage, live freely and find their own food and drink. Wouldn't they leave the cage? I think they would. But of course, like Zaidel, I would be making an assumption.

However, in this day and age, when freedom and liberty are regarded as universal rights of human beings and when they are regarded as  part of natural and divine rights, it is a measure of the sorry  state that we are in that we are still arguing which is the more basic and primordial need, food and drink or freedom and liberty!

My question is, why can't we have them all? Especially in a democracy, where we elect our so called leaders to look after our well being as members of a State?

I think in this day and age, it is downright insulting - and not to mention, pathetic - for any leader to say to the people that I will give you food on your table in abundance but you would have to shut up, toe the line and do as I say, all the time and under all circumstances.

For a leader to lay the blame on the people which he or she ruled - for not understanding the limits of democracy - as a reason for his or her failure to achieve development and progress does not speak much of his or her leadership.

A comparison was made with Singapore in one of the comments. It was pointed out Singapore did not have much of a democracy and they progress well. But that does not prove that Singapore progressed well because it was less democratic. Hasn't  it occurred to any of us that Singapore progressed because of the mentality and work ethics of its leaders?

By the way, Malaysia, during the 22 year reign of DrM had identical benevolent absolutist regime with Singapore. Both DrM and LKY were the staunchest apologists for what they termed as "Asian values", which to me was nothing more than a self serving excuse for totalitarianism. 

Malaysia had everything which Singapore had in terms of repressive legislation as well as actions. In fact history would show that Malaysia imposed more limits to democracy than Singapore did in the 22 years of DrM's rule.

So I am going to ask the obvious question. Why is it that Malaysia had failed to match Singapore's progress and development during that 22 years? Both had untold limits on democracy. What happened? What were the differences between the two countries?

The thing is this. If we stripped all the deliberate cost overruns (I am being overly generous with my description here); all consultation, introduction and service fees; all middle men; all other "value-not-added services" from all of our projects all those years, I am sure this country would have enough finances and resources to do much more. The money being churned by Petronas alone would be more than enough.

And if only we had put in the right people - instead of some silver-spoon fed children, brothers in law, nephews and what-have-you of the people in power -where they were needed, I am sure this country would have equaled Singapore, if not overtaken it.

As for India, fellow blogger Wenger J Kahiry had answered well in his article India, China, Democracy, Communism and RM 50 billion on his blog. I don't want to add anything.

Whether we like it or not, we are a democratic country. Our leaders should stop asking for more and more powers and start delivering results with whatever powers they already have. Why can't development and progress be achieved without trampling on the people's freedom and liberty?

In this cyber age, the people are slowly being empowered. And they wish for emancipation. They wish for development and progress. And they do not wish to give more than they need to, particularly when it comes to their rights, freedom and liberty.

The people now have become an enlightened customers of the politicians. And they have become demanding customers. They want food and drink on their table. And they want their freedom and their liberties in the same breath. Their basic and fundamental rights as human beings. Those very things which give them human dignity and which differentiate them from other animals.

The times they are a-changin, says Bob Dylan, and you'd  better start swimming or you'd sink like a stone.

Thursday, November 19, 2009

Enemies of the State

India, apparently is a country which has made the "mistake of being too democratic". And, "democracy can be a hindrance to progress because you spend so much time politicking that you don’t have time to develop your country. In China, there’s not much politics. So, they can spend more time developing their country.”

Those are statements attributed to Tun Dr Mahathir in a IANS report as quoted by Malaysia Today on 17.11.2009.

I love it when DrM is being philosophical. Because he makes philosophy, especially political philosophy, interesting. Interesting in a comedic way, I mean.

First and foremost, to put China and India in the same political sphere is an act of questionable wisdom.

India is a parliamentary republic deeply entrenched within the Westminster typed democracy as practiced in the United Kingdom. Malaysia, which was governed by DrM practices the Westminster typed democracy as well, save for the fact that we are not a republic.

China, on the other hand is not a democratic country at all. It is a communist country. The people have no freedom of speech or at all. They kill their own people for having the guts to stand up and be counted. The so called leaders do things according to their own whims and fancies. The people just have to accept. There is no election. No voting. No nothing.

(The only good thing about China's administration  is the fact that they shoot their civil servants for corruption.)

DrM must have confused China with Malaysia during his days as the Prime Minister. Save for the fact that Malaysia is not a communist country and we do not shoot our civil servants for corruption, of course.

According to DrM, the people "do not understand the limits of democracy”. And that dear Doctor, includes the leaders too, if I may add. Which begs the question, what can the people do when they do not understand, or misunderstand, the limits of democracy? Create chaos? If so, isn't it the duty of a responsible Government to educate and to protect the people and the State in accordance with the law and the power entrusted by the people?

The real danger to the State  is not the people not understanding the limits of democracy. The real danger to the State is the leaders not understanding the limits of their powers. The real danger to the State is the leaders not understanding democracy in itself and its inner working. Because there lies the root of abuses. There lies the root of wrongdoings, corruption, nepotism, cronyism and totalitarian absolutism.

While a responsible Government could crush, with all its might and powers, a revolt by people who do not know the limits of democracy, what, on the other side of the fence, can the people do to stop Government- sponsored terrors, abuses, financial misdeeds, tortures, transgressions of universal human rights and even downright murders?

Remember Memali? What could the helpless people who, in the mid 80s, were still eating ubi keledek for dinner, do? Other than to bath the dead, pray for them and bury them 6 feet in the ground? And believe that the dead are going to heaven as "syuhada"? What? And what danger were those  people to the State?

In a democracy the people trade some of their freedom for the greater societal benefits that the State manifestly offer. The Government is the trustee of the people's freedom and the powers conferred by the people. Those trust properties are to be used only, and only for, the betterment of the society and the State. And the people choose those who are to govern. That is the crux of democracy. But does it end there? We vote and so it is democratic? That's it? And upon being elected, we are at your mercy?

What about the performance of the trust?

And so, apparently, if the people know their limits, the leaders can concentrate on developing the country. Like in China. Oh, how blessed is our developed Malaysia. During 22 years of DrM's rule, when all of us knew our limits, or made to know our limits, he so concentrated on the development of Malaysia. Let's see. We have:

  • spanking nice highways but we have to pay tolls and the toll rate keeps on going up like an elevator to nowhere.
  • an education system which serves as a fertile breeding ground for racial segregation and good for manufacturing humanoids.
  • health care services which are almost non existent.
  • a huge new administrative centre with no viable transportation system and parking space.
  • a transportation system which is high on technology but really low on delivery.
  • nice tallest twin towers in the world.
  • nice race track which hosts 3 international races per year.
  • broadband services which is anything but broad.
  • etc etc

If DrM was right, that being undemocratic or not so democratic  was productive in terms of development, why is Malaysia still not a developed nation after 22 years of benevolent absolutist rule? Why are we now mired in:

  • racism - the least said the better.
  • religious extremism and persecution - Dr Asri was just charged as I am writing this.
  • corruption - look at the Transparency International’s Corruption Perceptions Index (CPI) 2009 published 2 days ago.
  • Governmental abuses - need I list them out?
  • human rights transgressions - read Operasi Lalang.
  • a societal beliefs in tahyul, bomoh and superstition.
  • a societal transfixion with celebrities weddings, house decor, body and physical decor and upliftment.
  • semi feudalistic idolatry of leaders and mini emperors.
  • stupidity, even in the House of Parliament.
  • a bunch of generation Z whose idea of progress is upgrading their iPhone3G to iPhone3GS.
  • fill in the blank

22 years after. And we have these. Do these exist because our people did not know the limits of democracy for 22 years? Or because our leaders did not know the limit of their powers for 22 years and beyond?

Yes. According to DrM, the Westerners are wrong for making democracy and freedom the cornerstone of progress. The British are so free they go on strike every other day. Well, who sent people to the moon in 1969? Which part of the world had an industrial revolution? Why have Russia, East Germany, Romania et al embraced democracy and freedom? From whom did we buy our Scorpene? Why Glasnost and Perestroika? So the people know the limits of freedom and how to behave themselves properly and in accordance with the Government's code of behavioural acceptance?

And finally, according to DrM, apart from China, Japan, South Korea and Taiwan will lead the Asian charge.

Which made me thinking, were Japan, South Korea and Taiwan governed by a benevolent absolutist government? Do the people in these countries know the limits of democracy? If so, to what extent? And who impose and define these limits on them?

Because the last time I checked, the South Koreans will come out on the street in droves to protest even the misuse of an office eraser by a Minister. The Taiwanese on the other hand would fight tooth and nail for the right to hog the microphone in their House of Representative. As for the Japanese, they just booted out their long non-performing Government.

So, India is too democratic and therefore they won't succeed?

Friday, November 13, 2009

The demon in all of us

Minister Hishamuddin could not hide his disgust at some of us, Malaysians, who have, according to him, "demonised" the various institutions such as the police force. The crime rate, in his opinion, is due to the demonisation of the police force. Another possible reason is "the delay in the various trials and judging process".

Minister Hisham's statement came after Minister Koh's verbal answer in the Parliament on why the IGP had a high KPI score of 113.8% when the crime rate is going north. Minister Koh's reply was that the crime rate is now higher because when the police becomes more effective, there will be more crimes reported. Let me quote him in verbatim from the hansard so that we will all not be lost in translation. This is what Minister Koh said:

"Pengalaman dari negara-negara lain menunjukkan bahawa apabila pihak berkuasa, penguat kuasa menjadi lebih berkesan. Maka bilangan laporan akan meningkat, sebab dahulu sebelum sistem menjadi berkesan, maka orang awam enggan melaporkan.


Ada juga yang dikatakan anggota-anggota Polis yang tidak menggalakkan supaya sesuatu dilaporkan sebab... Kes ragut misalnya. Amat sukar untuk mangsa mengenal pasti siapa peragut itu, oleh itu mungkin banyak kes tidak dilaporkan. Akan tetapi apabila keyakinan orang awam terhadap pasukan penguat kuasa meningkat maka mereka akan tampil ke hadapan, itu satu. Yang keduanya, sistem untuk menerima laporan itu."

It is not for me to dispute what was said by Minister Hishamuddin or Minister Koh. After all, they are the Ministers and they know better. What does a mere "rakyat" like me know about all these things?

I however have a story to tell. Those who read my article about Utusan Malaysia's responsible journalism would notice that I had mee rebus for lunch on 12th November 2009. While walking back, I bought some jack fruits. When I finished eating them, I was looking for a rubbish bin to throw the empty plastic in.

I finally saw one nice blue rubbish bin. I walked toward it. I was quite disappointed when I tried opening the cover. I took a picture of it. Here it is:

tong sampah

Note: I have exercised my responsible blogger discretion by blanko-ing the address. Rest assured I did not blank out any emblems, political or otherwise. I swear.

Now, the question is, what kind of demon which possesses and drives the owner of this bin to actually put the bin in chain and lock?

Is crime so rampant much so that even rubbish bins are not secure anymore?

Thursday, November 12, 2009

Utusan Malaysia is the stupidest newspaper in the world - the proof

I laughed my head off. The mee rebus which I had for lunch is now threatening to make its way upward and later, outward.

Many Malaysians have given up with the mainstream media. That is because their so called responsible journalism entails nothing more than the act of extreme spinning of facts and events to suit their political masters or their own not-so-hidden agenda.

I have ceased reading the local newspapers for a long long time. I have for example, berated against the NST for their treatment of the Bersih rally some time ago.

Despite all the lies, untruth and skewed reporting that these newspapers have been carrying all these while, the Prime Minister recently saw it fit to hail Utusan Malaysia for, among others, "being the voice of the people".

Well, I now have proof that Utusan Malaysia is nothing more than a loyal servant of their political masters. I now have proof that Utusan Malaysia will not stop at almost anything in order to protect its political masters. For whatever is deemed necessary to protect its political masters, Utusan Malaysia would stoop as low as physic permits to do and execute. And that includes misrepresentations and even downright lying. It will even doctor photographs!

The thing is this. They are not even good at doing it!! To lie and misrepresent an event is something. But to do it in a really stupid way is another thing altogether. Do Utusan Malaysia think that all of us, Malaysians, are as stupid as themselves?

We are in a globalisation era. We are in the cyber era. We are not in the 60s or 70s anymore. Nowadays, stupidity is easily exposed.

What am I ranting and raving about? Well, I received an e mail from a friend of mine just now. It contained a picture of an event which took place on 9.11.2009. The same picture was published by many local newspapers while reporting the same event.

As the story goes, a man in his 70s was arrested for allegedly killing his wife. The following picture was published by Berita Harian:

Berita Harian

This was in the Star:

the star2

And this was in Harian Metro:

Harian Metro

Notice the blue umbrella? That umbrella has the Barisan Nasional emblem on it. Quite obviously, that umbrella was distributed by the Barisan Nasional during some kind of election as it has the "vote-BN" emblem on it.

Utusan Malaysia, thinking that the stupid masses of Malaysia might equate Barisan Nasional to a person arrested for an alleged murder because of that blue umbrella, quickly exercised its responsible journalistic discretion by DOCTORING the same photograph and published the same in its report as follows:

Utusan

This is my proof that Utusan Malaysia is the stupidest newspaper in the whole world!

Tuesday, November 10, 2009

Of Judges, KPIs, Justice and Superficiality

"I want to ensure that justice is produced fast. Clear the backlog. If I can do this, then I would be very happy." – Tun Zaki, Chief Justice, Malaysia.

As far as mission statement goes, the above sounds good. It signals an aim, namely, justice must be produced fast. Then it spells out the mechanic by which that aim is to be achieved, namely, by clearing the backlog. Lastly but surely not the least, it states the overall impact of the mission, once achieved. The CJ will be happy.

With 900000 cases pending in the lower courts and 91000 cases in the High Courts (2008 figures), the concern about delays in the Courts is understandable. After all, justice delayed is justice denied. The CJ therefore has taken it upon himself to clear the backlog of the cases.

Throughout my years of practice, I have seen at least 7 Chief Justices (the position was called Lord Presidents before) come and go. Invariably, each new Chief Justice had the same resolution upon being elevated to his position. One even went to the Scandinavian countries to study on ways and means to reduce backlog. When we have a neighbour just about 300 kilometres away who have solved the backlog problem one wonders why we would want to travel to such far away land. But then again, we love study trips. Needless to say the backlog stayed. And in fact it got worse.

There was another one who said we would computerise the Courts. And soon we saw computer monitors, slim microphones and mini speakers springing up in Court rooms. I walked into one those days and I had to call my assistant to make sure that she had not sent me into a recording studio. Again, the backlog stayed.

Then there was the effort to increase the number of Judges. The idea was simple and basic. If there were many Judges, surely many more cases could be disposed off, no? Well, yes and no. A big NO, in fact. There were Judges those days who actually measured the margins on the court papers to ensure that it was one inch in width! Anything less would be struck out for non-compliance with the High Court Rules 1980. Then there was one who actually wanted all submissions before him be typed in fonts 13!

There was also one who scolded my opponent in front of me for referring to the Akta Syarikat as the “Companies Act.” That guy actually left practice soon after. There was another Court which had actually rejected my bundle of authorities because my separator was not white in colour. I was told that according to the rules, all papers filed must be white in colour. Now, if the separators are white, would they be called separators then? I am not kidding. These are true accounts. Needless to say, the backlog stayed. Until now.

Regardless of the ways and means employed by the Chief Justices, there are however a discernible pattern to the approach. Firstly, count the number of cases. Then blame the lawyers for delaying the cases by unnecessarily applying to postpone them. Then set a target – which was normally unachievable – of the number of cases to be disposed off within a specific period of time. Then sit down and see the paint drying. The result? Utter failure!

In almost all the various approaches, amidst all the media statements, the publicity, the study trips and what-nots, one method stood out. That is the circulation of the proverbial administrative circular. The circular would say, “no adjournment or postponement should be granted on the ground that lawyers have another case to do in another Court”.

Well, I have a problem with that. In fact many lawyers do. First of all, the granting of adjournment or postponement is a matter of judicial discretion. That means it is a power of the Judge in question which is to be exercised by him or her in his or her judicial capacity considering all the circumstances of the case. It is not for the CJ or anybody else to dictate the exercise of that judicial power. To do so would be an interference with the power of the Judge. If that is not contemptuous, I don’t know what is.

Secondly - and this is really irritating – it is not the lawyers’ fault that two or more of his cases are fixed on the same day. Do I have to explain this? Well I suppose I have to. Take me for example. I don’t just handle one case. I handle many cases at the same time. I may file an application in case A a month ago. Then I may also file an appeal to the Court of Appeal in case B 8 months ago. I also may have an appeal in the Federal Court in case C still pending. Now, let’s say I am in Court today trying to fix a trial date for case D in the High Court. The Judge says “how about 1st March 2010?” I look at my diary and I am free on that day. So, the Judge fixes case D for trial on 1.3.2010 to 5.3.2010.

Later, my application in case A is taken out from the registry and it is fixed on 1.3.2010. To add to that, the Court of Appeal suddenly write to me to notify that my appeal in case B is now fixed on 2.3.2010. Soon, the Federal Court notifies me that case C is now fixed for hearing on 3.3.2010. Is that my fault? Have I taken cases which I am not able to do? Have I bitten more than I could chew? Am I to blame? Well, according to current jurisprudence, I am. And the Court should not grant me a postponement of any of my cases.

When I complain, the answer is almost curt and disrespectful. Not to mention dismissive. “Farm your cases to other lawyers.” Problem solved. Well excuse me. Article 5 (3) of the Federal Constitution guarantees every person (citizen or otherwise) the right to be represented by a Counsel of his or her choice. Isn’t that important? Or is it convenience over right? Then there is the fact that clients come to me because of some special knowledge that I possess in the specific area of the law which is the subject of the case. Isn’t that important too? Or how about the fact that I have taken a retainer fee for that particular case and I had done all the works required in preparation for the trial of that case. Must clients engage another lawyer and pay another fee now? Can we have a little bit of understanding here please?

The current CJ is quick to add that the grant of adjournment is a judicial discretion. In a meeting between the Bar Council representatives he stressed that point. But later, it transpired that he had actually personally called up some of the Judges who granted adjournments which he thought was unnecessary and asked them to explain their action. Which begs the question, what judicial discretion is there when Judges have to explain their exercise of that judicial discretion to the CJ personally? Isn’t that interference?

The law is every exercise of judicial discretion by the Judge is a judicial act. Judges are not required to explain to anybody, not even to the parties to the action. He or she can write a judgement. The party who is unhappy with the exercise of that judicial discretion may appeal to a higher Court. With the greatest of respect to the CJ, it does not befit anybody, including the CJ, to question a Judge on the exercise of a judicial discretion.

What would the public think? If Judges could be hauled up to face the CJ and questioned on their judicial act, what is there left for litigants? Fight their cases on the street?

And now we have KPIs for Judges. Sometime ago, Judges were made to clock in and clock out, like some “production executives” in a Seberang Perai factory. Every Judge is supposed to dispose of at least 35 cases annually. I presume “cases” here means trial cases and not merely applications in Court. Let’s do the Maths. There are 53 weeks in a year and the Judges work 5 days a week. That amounts to 265 days a year. Assuming the Judge takes 15 days of personal leave and another 15 days leave on public holidays. That would leave 235 days. That means 6.7 days per case. Let’s say he or she spends half of that, ie, 3 days to hear applications. That means an average of 3.7 days per trial.

Is that realistic? What kind of justice are we talking about? A quick one, obviously. And quite a short one too, if I may add.

It is easy to treat the Courts like some manufacturing plants. Like Proton for example. Increase production. Increase sale. Increase profits. Set targets. Meet them. And yes, we are successful. But what is justice? What is fairness? Let’s face it. Nowadays, lawyers and their clients talk about appealing against a Court order even before the case was heard. Why? Because there is absolutely no respect for the judgment of the Court. That is the hard truth. To put it bluntly.

Dr Deming in his book, “Out of the crisis” stresses that in a non-performing entity, the people are not to blame. It is the system which is at fault if the people don’t perform. He said that a manager needs to understand that the performance of anyone is governed by the system and management. He emphasises quality and not cost cutting and the likes. Among others, he lists the followings as the integral elements to transforms effectiveness;

· There must be constancy towards improvement of product and services.

· Dependency on inspection to achieve quality must cease. The work must be good and of quality the first time around.

· The system must improve constantly and forever.

· Institute leadership, not for supervision, but to help people be better in their job.

· Eliminate slogans, exhortations and targets for the work force.

· Eliminate management by objectives, numbers or numerical objectives.

· Institute programmes for education and self improvement.

· And most importantly, drive out fear, so that people may work effectively.

The above are for corporations. But how true it is for the judiciary to take note of. It would be good if we could super-impose these elements on the Judiciary and see whether what Deming is asking to be avoided is being done and what he is asking to be done is not being done.

Have we undertaken a proper and in-depth study of the whole situation? If so, what is the root cause of the problems? Hell, do we know what the problems are in the first place? Can’t the system be improved, or changed altogether? Have we looked at some international arbitration rules for example? Can we learn from those rules?

If we do not have a holistic approach, we can of course continue appointing new Judges till kingdom come. We can continue blaming the lawyers till their robes and bands rot. We can stop giving postponement. We can even impose a limit to the number of words a witness may utter.

At the end of the day, the backlog might be cleared. And everybody should be happy, right?

Friday, November 06, 2009

1 Telor!

Yes. I am talking about the Persatuan Peguam Syarie Malaysia or Malaysian Syariah Lawyers Association (PGSM).

Malaysia Today cited a report in The Star this morning saying that PGSM  has apologised to Dr Asri, the former Mufti of Perlis over the contents of the memorandum sent by the former to His Royal Highness the Yang di Pertuan Agong recently. This is also confirmed by a MalaysiaKini report.

I will not repeat what was said in the memorandum. Suffice if I were to say that the contents are vicious enough to make a multi-million dollar defamation suit by Dr Asri a very viable exercise.

The thing is this. PGSM is the self proclaimed defender of the faith. Whenever there are people or party whom they disagree with on matters pertaining to Islam, they would be the first to shout and scream. On the Kartika issue, they were so loud in condemning Sisters In Islam, Joint Action Group for Gender Equality and WAO. They had a protest against these NGOs. They also lodged a police report against the organisations.

When these NGOs called for a review of Syariah Criminal offences, they issued a memorandum (they just love memorandums, don't they?)  imploring the government to prosecute these organisations.

Why not? After all, those orgainsations are unIslamic. They on the other hand are the protectors and defenders of the faith.

Now they are apologising for telling lies about Dr Asri. If I were advising Dr Asri, I would advise him to sue their proverbial kain pelikat off!

Don't they know what the Prophet - peace be upon him - said about telling lies and liars? Well, here it is:

Narrated Abu Huraira: Allah's Apostle said, "The signs of a hypocrite are three: (1) whenever he speaks, he tells a lie, (2) whenever he is entrusted, he proves to be dishonest, (3) whenever he promises, he breaks his promise" (Sahih Bukhari)

"Narrated Anas: The Prophet was asked about the great sins He said, "They are:-- (1 ) To join others in worship with Allah, (2) To be undutiful to one's parents. (3) To kill a person (which Allah has forbidden to kill) (i.e. to commit the crime of murdering). (4) And to give a false witness."  (Sahih Bukhari)

Narrated Abu Bakra: The Prophet said thrice, "Should I inform you out the greatest of the great sins?" They said, "Yes, O Allah's Apostle!" He said, "To join others in worship with Allah and to be undutiful to one's parents." The Prophet then sat up after he had been reclining (on a pillow) and said, "And I warn you against giving a false witness, and he kept on saying that warning till we thought he would not stop. (See Hadith No. 7, Vol. 8)  (Sahih Bukhari)

And about people who say things without being asked, in other word those who are Pak Sibuk, the Prophet - peace be upon him - said this:

Narrated Zahdam bin Mudrab: I heard Imran bin Husain saying, "The Prophet said, 'The best people are those living in my generation, then those coming after them, and then those coming after (the second generation)." Imran said "I do not know whether the Prophet mentioned two or three generations after your present generation. The Prophet added, 'There will be some people after you, who will be dishonest and will not be trustworthy and will give witness (evidences) without being asked to give witness, and will vow but will not fulfill their vows, and fatness will appear among them."  (Sahih Bukhari)

Nice eh? The Prophet - peace be upon him - abhors people who defame others.

So, I am now waiting to see whether PGSM would lodge a police report against itself for acting against Islamic teachings. Or perhaps they would prepare and publish a memorandum against themselves.

As for JAIS, I would like to ask:

- why do you need to bring about 50 people to arrest Dr Asri?

- was the arrest necessary? Was he running away? Can't you take a promise from a former Mufti to appear at your office the next day to be interrogated by you on whatever offence that you were investigating?

- was there a report made to you about Dr Asri's wrongdoing BEFORE you proceeded to arrest him? Please be truthful on this. God does not like people who are liars.

- was there a reliable information about Dr Asri's wrongdoing BEFORE you proceeded to arrest him. Please also be truthful on this. God hates liars.

- why weren't any of your officers at the Court the after to charge Dr Asri when he was in fact told to be present in Court the next day to answer a charge?

- what are you all going to do after this? Charge him? Or what?

- are you sure that the requirement for a "tauliah" is not repugnant to Article 10 of the Federal Constitution, which guarantees the freedom of speech and which says only the Parliament can restrict the same?

Oh, I just remember what the Prophet - peace be upon him - say about spreading knowledge. No, I am not teaching. I am just saying I remember it. Here it is:

Narrated 'Abdullah bin Mas'ud: The Prophet said, "Do not wish to be like anyone except in two cases. (The first is) A person, whom Allah has given wealth and he spends it righteously; (the second is) the one whom Allah has given wisdom (the Holy Qur'an) and he acts according to it and teaches it to others." (Fateh-al-Bari page 177 Vol. 1- Sahih Bukhari)

Hmmm...did the Prophet - peace be upon him - say get a license before teaching others?

Tuesday, November 03, 2009

1 World, 1 Malaysia...different planet

Imagine you are an alien being from some planet far far away in the globular star clusters M80, 23,000 light years away from Earth. You have just arrived on Earth after traveling in a space craft called Pro-Ton, your premier national space craft manufacturer. You have traveled 23,000 light years to be here.

You are tired, hungry and may be sleepy. But you are excited at the same time. You have read so much about this blue planet filled with strange gasses, minerals, matters and of course, strange and wild creatures of various forms. You can't wait to meet them. Interact with them. Probably even mate with some of them.

As fate would have it, you have landed somewhere in what your inter-stellar google map calls Kuala Lumpur. While landing, you have caused a bit of a landslide along the KL-Rawang road causing the road to be closed. You have also caused cracks to reappear all over the MRR2 prompting the former Minister of Works to shout at his wife "it's an act of God!!!!" out of sheer habit, forgetting that he is no more a Minister. But you are not worried. You and your craft are invisible of course.

You have come here prepared. You have studied the Earth and its entire history from day one, right from the day the Big Bang caused some dust, gasses and various matters to form Earth to the day Alexander the Great arrived in India and wished he had never been there and to the day Hitler was locked in a dungeon by an angry Jewish midget and the key thrown away. You have seen it all.

You have seen the Mayans drawing up their calendar up to 2012 before they committed mass suicide for no apparent reason leaving later generations to think that the Earth will come to an end in 2012. You have also known about Nostradamus, a guy who loved puzzles and riddles and whose entire goal in life was to ensure that the whole Earth population would be puzzled and riddled till Armageddon. And of course, you know all about Gandhi, Martin Luther King, Abraham, Isa, Mohammad, Mandela, Idi Amin, Robert Mugabe, Mahathir Mohammad, Clinton, Obama, Osama and others (in random order, not association or affinity).

As I had said, you came prepared. Also preset in your indefinite memory bank is humongous amount of data and information about all cultures, values and religions on Earth. Islam, Christianity, Hinduism, Judaism, Buddhism, Zoroastrianism, Taoism, Shintoism and hundreds more. You know them all.

After drinking about 88 gallons of toxic waste and pig poo from some rivers around KL for breakfast, you decide to catch up with some reading before you set out to explore Earth. You plug one end of your version of a USB cable into one of your three heads and the other end into your 1 iEverythingPod. Your mind then skims through the vast data and information available about the latest and most current happenings on Earth.

You would instantly learn about the call for 1 Malaysia of course. Your two mouths actually smile. Then you would learn about UMNO delegates voting for change. You then cross-refer the word "change" to one Barrack Obama, the President of a place where Hollywood and one Scarlett Johansen are. Ahh...similar, you note. Then you learn about Zaid Ibrahim taking leave. About one Zul Noordin defending his faith while in bed. About a creature known as MACC - quickly cross-referred to McDonald - planning to prosecute 35 government officers for abusing their office erasers and paper clips. About a bomb exploding in Kabul killing many - cross referred to Holocaust, World War 2, Bosnian conflict, war crimes, exhibition at PWTC, Dr Mahathir, Idi Amin, stop - and another in Baghdad.

You shake your 3 heads in disbelief.

Then you are transported to the fact that NASA had just successfully launched and tested the Ares I-X prototype rocket, which was designed to replace the old and aging space shuttle. And you think, ahhhh..I have travelled 23000 light years and these morons are still testing space shuttle. Lame!

Later, you become aware of the fact that the African Union had just backed a plan to create a special hybrid court for trying those accused of committing atrocities in Sudan's restive Darfur province. Hmmm...Sudan....Darfur you think. Cross refer, mass killing, 300000 people (mostly Muslims) killed, 2.5 million people displaced...genocide...further cross-refer, World War 2, Holocaust, Hitler, Karadzic, Idi Amin....you get the drift.

Then you learn of the swine flu. Of the race to come out with a vaccine. Of how China and the USA manage to create one. In the nick of time. Then you discover there were more than 70 deaths in Malaysia because of this flu. The 1 iEverythingPod then cross refer to 3rd world; Philippines; Botswana; Ethiopia. Oh no, you have landed in a third world country, you think. Mission almost a failure!

You also learn that the Noble prize has been awarded to that guy whose name is Obama, from that country where the women have silicon in their body. Cross refer, Pamela Anderson. Monstrous, you say quietly.

Jenson Button wins the F1. Ooops...what is this? You explore. Auto racing. You learn. Abu Dhabi. Nice day and night race. You see at one time during the race, there was the sun and the moon at the same time! Cross refer, Sepang F1 race, race stopped before it finished as it was getting dark. Cross refer Singapore night F1 race. Party. Beyonce. Cross refer, Black Eyed Peas, no Muslims allowed, then Muslims allowed, check identity card, Beyonce cancels her concert, Pemuda PAS Selangor protests, Michael Learns To Rock, protests again, Hassan Ali, Zul Noordin, mullahs on Ecstacy.

You explore deeper. Japan leads in hybrid powered cars. New water in Singapore. Financial world revamping. Melting ice caps. Globalisation. Peace treaties. Middle east unrest. Modern day slavery in Dubai. Fulham whacks Liverpool 3-1.

You then come back to news in Malaysia, the place where you have landed. The Prison department is awaiting order to cane Kartika. Cross refer, beer, alcohol, Kartika, cane, Islam. Then you learn about the call for award to be given to those who marry single mothers. Cross refer, Islam. Later, you are fed with a scheme where RM10000 is paid to each man who would marry an orang asli woman in order to keep her as a Muslim. Cross refer, Islam.

You check your memory bank on all the information and data about that religion called Islam. Just to make sure you are reading those news accurately. Hmmm...strange, you think. Then you are transported to an offer for honeymoon for married couple having marital problems. Then to divorce-hit Terengganu wants to spice up sex life of newly-weds. Cross refer, Islam.

Finally, you learn about one Dr Asri, a former Islamic Mufti of a state in Malaysia, being arrested for lecturing about Islam without a license. Cross refer, Islam, breach of fundamental liberties, freedom of speech.

By this time you are sure all the data and information you had been implanted with about Islam is wrong and inaccurate. You profusely push the communicator button. Call your planet. "No," they say, "the information are correct." "But," you say, "I am getting quite different reports here." "Where are you?" your home ask you.

"I am in a place called Kuala Lumpur, Malaysia," you answer.

"Oh, that place", exclaims your home.

"Listen up okay, access your memory bank, and click ignore once," direct your home.