Loyal Followers

Tuesday, February 28, 2012

Integrity: You Know It But Do You Have It?*


* This is a speech delivered by Tun Hamid Mohamad, former Chief Justice of Malaysia at the 1st UNITEN Premier Lecture on 3rd February 2012  

I thank UNITEN and the Institut Integriti Malaysia for giving me the honor of delivering the first lecture of this series. I am more honored by the fact that this lecture is on integrity which makes me believe that I must have some integrity, at least sufficient to deliver this lecture, provided that the invitation is not a mistake !

As I am not an academician, I have decided to speak about what I have seen, heard and experienced throughout my life, vis-a-vis integrity. So, if you were to ask me how long I took to prepare this lecture, my answer is “Sixty nine years and ten months!”

I hope you will bear with me for a while, while I narrate the story of this man whom I am taking as an example.

At the close of the nineteenth century, a baby was born in Permatang Tinggi Bakar Bata, Kepala Batas, Province Wellesley. He grew up in the village, attended a pondok school in Kedah, then in Kelantan and later spent a few years in Makkah where he attended classes at Masjid al-Haram.

He returned home, married a girl from the same village, worked as a rice planter. He taught the Qu'ran on a voluntary basis twice a day to the children in the village, besides being the Imam of the mosque in the area.

In 1950‟s there was no school in Bumbung Lima. He and the people in the area decided to build a school. They collected money after every harvesting season which was entrusted to him for safekeeping. They went into the nearby forest to cut down trees and bamboo and, in the gotong royong tradition, built a three-classroom school made of attap roof and woven bamboo walls and windows. The Government provided the teachers and the children in the nearby villages went to school.

The mosque with woven bamboo walls, was old and rotting. He initiated a fund to rebuild it, collecting RM15 (if I am not mistaken) from each family after every harvesting season. He kept the money in safe custody, bundled in an old piece of cloth and known to the wife and children as duit Masjid and no one would touch it. During that period, he bought an old Austin 8, the first car in the village. Fearing that people might think that he had misused the duit Masjid to buy the car, on the following Friday, he carried the bundle of money to the mosque. Before the prayer started, he placed the bundle on the floor of the verandah of the mosque (called balai lintang because it lies horizontal to the main building) and announced to those present. ”Those of you who think that I bought the car with the “mosque money”, come and count it.” There was a complete silence. The mosque was built and completed, wholly from the money collected from the villagers and their sweat.

There was an Imam Muda, a lebai from Kedah, married to his niece. There was a rumor that he used to go and collect money from the taukeh of a shop where gambling was going on. A date was fixed for a “hearing” and, as usual, on Friday. Our subject challenged those who saw the incident to come forward and repeat their allegation. Two men came forward and swore that they were in the shop and they saw the Imam Muda came and took money from the taukeh. The Imam Muda was relieved of his position. There was no Majlis Agama Islam yet at that time.

There was an Indian man by the name of Banggaru living just outside the village. He had eleven young children and his wife had died of childbirth. Their mud house was flooded. He invited Banggaru and his children to live temporarily underneath his Malay-type kampung house built on stilts. They lived there until the flood subsided. About thirty years later, a car came to our subject's house. There were three Indian men in the car. The two younger men carried an old and sickly man, sitting on the back seat of the car into our subject's house, which was a new one though on the same spot as the old one. The old and sickly Indian man was no other than Banggaru. He wanted to meet “Haji” (that was how he called our subject) for the last time before he died and to thank “Haji” for all his help. Banggaru died soon after that. He knew how to say “thank you”.

There were two Chinese families living just outside the village. They always quarreled with each other and would run to “Haji's” house to complain about the other. Needless to say, our subject would advise them to live as good neighbors, after all there were only two of them there.

Another Chinese man. a complete outsider, came to open a bicycle shop in the nearby Bumbung Lima. He had no money. He went to see our subject to borrow a few hundred Ringgit who gave him the money and mind you, strictly without interest as interest is riba'. The Chinese man‟s business grew and he ventured into other businesses before he died. His children inherited his businesses and are well off now but I doubt whether they know the story.

One day, the aged mother of the Penghulu came to his house crying: her son had chased her out of the house. More than a decade later, the Penghulu himself, now retired, came to him complaining that he had been chased out of the same house by his son. Of course, our subject reminded the Penghulu of the earlier incident.

He was already very old then but he could still cycle. Someone informed him of some people gambling in the bushes nearby the village. He cycled there and on seeing him approaching they all fled. It was not a case of fear but ashamed to be seen by him gambling.

He died at the age of about 100, unfortunately we do not know his date of birth. Even then, he died in style. He had complained of feeling feverish. He wanted to take his ablution, which he did. He asked for a clean sarong and baju Melayu, He dressed up for prayer, placed the prayer mat facing Ka'abah and said “Soon the Imam will come”. Not comprehending what he really meant, his son replied, “No, it is still too early for Maghrib”, He collapsed, dressed for prayer and while waiting for it, complete with ablution. Then the children understood what he meant by “Soon the Imam will come”. That night, three generations of his students kept awake and recited the Qur'an for him. The youths in the village insisted that they wanted to carry his body to the cemetery about two miles away instead of being transported by van.

Why do people go to him for advice, for settlement of disputes and for all kinds of things? Why do people not want to be seen by him doing something wrong? The answer is that they have a lot of respect for him. Why do they respect him? Simply, it is because of his integrity.

Who is that man? Today, sixteen years after his death, UNITEN and Institut Integriti Malaysia, not knowing the story, invite his youngest son to deliver this lecture. Yes, that man is my father, Haji Mohamad Bin Haji Abdullah or known as “'Pak Su' or 'Pak Cik' Haji Ahmad”, depending whether you are from the paternal or maternal side. If I deserve this invitation, I owe it to him and I dedicate this lecture to him. May Allah bless his soul. What can we learn from him regarding “integrity”?

First, he did not even know the word “integrity” whether in Malay or English, what more words like “transparency”, keutuhan and so on. But he knew what was right and what was wrong and he always chose to do what was right. I surmise that, most probably, he knew such Qur'anic words like haq and batil, ma'aruf and munkar which could have influenced him greatly, as they did on me. My point is, you may live a life full of integrity without realizing it but by doing what you know is right and avoiding what you know is wrong.

Second, I believe he knew the word jujur and ikhlas but, in all my life, I did not hear him use those words even once. But what he did not preach through words, he, perhaps without realizing it, was preaching through examples. There is nothing more effective than preaching through example. As far as I have read that was what Prophet Muhammad s.a.w. did. Due to his excellent examples and more so being a Prophet, the sahabah like Abu Hurairah would follow him, observed every movement he made and every word he said, in answer to questions or otherwise, and recorded them faithfully. All those examples became traditions and followed all over the world for one and a half millennium now. That is the power of leadership by examples, good examples.

Why was “Kepimpinan Melalui Teladan” forgotten almost as soon as it was launched? Because the good examples were not forthcoming. As a result, very few people, took it seriously and soon it became irrelevant and was forgotten.

Even Madonna, the “material girl”, knows how to appreciate integrity when she speaks about her father:

“My father was very strong, I don't agree with a lot of the ways he brought me up. I don't agree with a lot of his values, but he did have a lot of integrity, and if he told us not to do something, he didn't do it either.”i

Now, listen to this:

“O you who have believed, why do you say what you do not do?

Great is hatred in the sight of Allah that you say what you do not do.” – Al-Saff (61): 2 and 3. (Sahih International)

I do not think anyone would suggest that Madonna and/or her father had read those two verses!

Third, integrity has to be earned the hard way throughout our life. You may have spent years or decades doing the right thing and accumulating your integrity, but one misstep, one mistake, one indiscretion affecting your honesty or morality, the whole of what you have accumulated, is wiped out. Once you lose it, it is even more difficult to accumulate it again.

Fourth, a person's academic qualification is quite irrelevant for a person to attain integrity even though it helps to understand it. But understanding integrity does not make one a person of integrity. A person may be an intellectual but he may be intellectually dishonest or he may be dishonest with his maid or driver both of which, trivial as they appear, would put a blot on his integrity. You will be surprised that what appears to be trivial may have a big negative effect on a person's integrity.

On the other hand, a person may not be able to define integrity. He may not be able to give lecture on it. With the fitrah that Allah has given us, with right upbringing, right surrounding, a person would know, what is right and what is wrong. True enough that right and wrong could be subjective, greatly influenced by your religion, culture, society and law. Yet, when it comes to honesty, the core ingredient for integrity, I do not think there is any room for a difference of opinion. So, lack of integrity is not due to ignorance. You know integrity but the question is: do you have it? Whether you have it or not depends on you, on what you do throughout your life. In other words, it boils down to our character. But, we are all human. Everyone has moments of weakness and indiscretion. However, what makes the difference is how serious and how often. When such moments of weakness and indiscretion become the norm rather than the exception, what more when those “wrongs” have become “normal”, then there is something really very wrong with the person.

Fifth, a person's position is irrelevant too. He may hold a very high, important and powerful position. If he has no integrity, the very same people who salute him, bow to him, greet him and try to please him, may not have any respect for him deep in their hearts. A good indicator is what people say behind your back or how the same people treat you after you retire: whether, seeing you walking at the supermarket, people whom you don't even remember or recognize would walk up to you, greet you, introduce themselves, ask how are you and wish you well or, even those you recognize just turn away. That is why I used to say that the real assessment of our career while we are still alive is when we retire. The final one is when we die.

Sixth, integrity requires no advertisement if you have it, neither can you hide it if you don't have it. Actually, a person's honesty can be seen on his face. I am sure you have experienced listening to a speaker whose delivery was impeccable, who was very fluent and witty and who spoke without text. You were mesmerized by him but, when he stopped and the moment the sound of clapping died down, you wondered whether he meant what he said. On the other hand, you would have experienced listening to another person, who read his speech with some difficulty but even as he spoke, to quote Allah yarham Tun Mohamed Suffian, “you could see his honesty shining through his forehead.” ii

Out of curiosity, I tried to check what other people have said or written about integrity, focusing on the word “integrity” itself in relation to “individual integrity” as against “organizational integrity”. I find the results interesting. Let us run through a few of them.

“A person is not given integrity. It results from the relentless pursuit of honesty at all times.” - Unknown.

“Integrity is what we do, what we say and what we say we do.” - Don Galor

“Integrity is the essence of everything successful.” - Richard Buckminster Fulleriii.

“Integrity is doing the right thing, even if nobody is watching.” - Anonymous.

“Have the courage to say no. Have the courage to face the truth. Do the right thing because it is right. These are the magic keys to living your life with integrity.” - William Clement Stoneiv.

“Integrity is telling myself the truth. And honesty is telling the truth to other people.” - Spencer Johnson.v

Surprisingly, they seem to be talking about the same thing.

I have been talking about integrity at individual level. To me that is where it begins, whether you are looking at individual, group, society or organization level. Of course, at group, society and organizational levels, other additional factors come into play.

Let us take a glance at the society level. First, let us take a few random samples focusing on honesty, the key ingredient to integrity.

A Professor of Polish origin who taught at the National University of Singapore, told me whenever he crossed the causeway to Johor Bahru he would take a taxi driven by a man wearing a white cap because he found him more honest.

A Professor from the United States left his jacket with his purse and passport in it in a train in Japan. He rang up the number on the ticket. He was told to go and collect it at the next station. He found everything intact.

A Captain of an international merchant ship told me that the worst port in the world in terms of cheating is a port in a predominantly Muslim country in the Middle East.

Traveling in Switzerland I saw farmers placing a table on the side of the road with vegetables for sale. The vegetables had been weighed and each bundle had a price tag on it. There was a box on the table for you to put money into. If you have no change you may open the box and take your change. Mind you, there was no one around. (I told a friend about it. He said that if we were to do it here, even the table would be gone!)

A friend of mine told me of blatant cheating at a temple that he went for pilgrimage to.

In 1981, I was transferred to a State as the State Legal Advisor. A few days before the Aidil Firti, I went to the mosque to pay my fitrah. The Bilal, an „amil was there. He asked me whether I had “registered”. I replied “No. I have just come to live here”. I paid him the required amount. He put it in his pocket. I waited. Then he said, “Dah selesai”. I asked “What about the receipt?” He replied, “No need because you have not registered.”

If you go to Makkah you will find that the moment the azan is heard, shop keepers would just leave their merchandise and head for the mosque. You are impressed by it. But, when you want to buy something, then you realize that you don‟t even know the reasonable price for a particular item. You are at the mercy of the shopkeeper. He may quote whatever price he likes, sometimes taking advantage of the ignorance and the naivety of the customer. It is up to the customer to bargain. To him it is legal, Strictly from the fiqhi perspective it may be legal, but is it honest? Is that what the Shari'ah is all about? To me, Shari’ah is not only law. It has a soul. The soul is iman and honesty is an integral part of it.

A few years ago, I went into a sports shop in The Hague, Netherlands. I liked a pair of shoes with a tag of 25% discount on it and I told the shop attendant about it. He went to fetch the other side of the shoe and came back to me. He pointed to a small hole on the side of the shoe.”You see the hole here. We only have this pair, I cannot sell you for 25% discount, If you want this pair, I'll give you 50% discount. Or, you can go to our other branch and get a new pair” (at 25% discount, of course.)

The Makkah and the The Hague experience are very interesting really. The Hague shop assistant was actually practising the Shari'ah principle that it is obligatory for the seller to disclose the defects in the goods he is selling, without knowing that that is a Shari'ah requirement. On the other hand, the shopkeeper in Makkah was practising the common law principle of caveat emptor (buyers beware) without knowing it either. Between the two practices, which is more Islamic?

Perhaps, it is these kinds of things that made Mohammed „Abduhvi to remark after his trip to Europe: “I saw Islam without Muslims”. I do not know whether back in Egypt then he saw Muslims and Islam or Muslims without Islam.

Looking at these samples, my first comment is that you can find both honesty and dishonesty everywhere, only more here or less there. Neither can you point to one particular factor as the reason why one group of people whether in the same country or in different countries are more honest than the other. You cannot say it is religion, for example, because you will find that people in developing countries who appear to be very religious, at least ritually and appearance-wise, are less honest than the people in developed countries, the majority of whom care very little, if at all, about religion. The examples I gave earlier would bear testimony to this statement.

We also cannot generalize that people belonging to a particular religion is more honest than the other. We find that people belonging to the same religion in one country is more honest and less corrupt than in another country. I think the answer lies in a combination of factors. Including, religion, moral, ethic, culture, education, upbringing, level of economy, opportunity (in the case of corruption), greed and competition (especially in the business world) and law and order.

Besides these factors, the behavior of members of organizations, e.g. in Government departments and companies, I think, depend very much on the leadership and the philosophy of the organization. The story of the professor who left his jacket on the train in Japan, the story of the shop assistant in The Hague, the story of the shopkeeper in Makkah are examples of the philosophy of the organization.

At national level, more so in the fight against corruption, there must be political will: the determination to fight corruption and the example of not being involved in it.

Singapore has been quite successful in this. Admittedly, politics in Singapore is more straight forward. There is no opposition, really. There, a political party does not need big capital to fight an election. On the other hand, there is a completely different election culture here. Sadly, that has become the Malaysian culture. My worry is that we have reached a stage where voters are “offering their votes for sale” to the highest bidder purely for short-term personal gains and the political parties have no choice but to keep bidding, disregarding its effects on the country and the nation, what more if the politicians have stopped thinking beyond five years! Once I was in The Hague on a general election day. I would not know that it was an election day had I not been told about it: there was not a single poster along the road. Still there was an election.

Whatever it is, corruption is not always in the form of political donations. It is more personal and direct.

What is important is that the political leaders, top level administrators, corporate leaders must be serious about combating corruption and must lead by examples, good examples.

When I mention “corporate leaders”, I am referring to all the “givers”. Very often, people tend to focus only on the public sector while the private sector escapes attention: Government, public servants, Judges and others must be clean; companies and businessmen need not be clean as they are only to be judged by how much profit they make. That culture has to change.

When I mention “politicians”, I mean all politicians, whether they are at the moment running the government or in the opposition. For those in power, the attitude that they are an exception is definitely not going to help. In the fight against corruption, no one is special and no one is an exception. For those in the opposition, the attitude that today is your turn and tomorrow will be our turn is not going to help either.

Unfortunately, even in combating corruption, political interest still rules. I was Chairman of the Advisory Council of the Malaysian Anti-Corruption Commission (MACC) until I resigned because of my long hospitalization. During the two years that I was Chairman, I saw the frustrations of the officers who were discharging their duties diligently and honestly. They should get the full support from everyone because the fight for corruption is a common ground for all. Instead, some groups, take side according to their vested interests, in the name of the people, justice, fairness, equality, freedom of speech, human rights, democracy and so on. They screamed for action to be taken against their opponents. But, when their members were investigated, they alleged that they were persecuted. When their opponent was arrested, charged, tried and convicted, there was a complete silence from them. When one of their men fell from the office of the MACC and diedvii, they straight away blamed the MACC for it. The NGOs too joined in. When an inquest was held, it was criticized forgetting that such inquests were normally held in such cases since the British introduced the Criminal Procedure Code in this country. While the inquest was going on, demonstrations were held, in effect demanding that decision be made the way they want it to be. That inquest took 51 working days over a period of 18 months.viii It was followed by a Commission of Inquiry of five members which took another 51 working days of public hearing.ix

Everybody sympathizes with the deceased and his family. Nobody wants such an incident to happen. But, we should be fair to all. Let the process of the law take its own course, first, at least. Independence of the judiciary does not only mean non-interference by the Executive. What applies to the Executive equally applies to everybody.

In a very similar incident involving a Senior Customs Officerx, which happened about two years later, only an inquest was held. It proceeded quietly and smoothly and it took only 15 working days over a period of three months.xi There was no Commission of Inquiry. There were no demonstrations and even the NGOs that were so vocal in the first case were notably quiet in the second case. How do you explain that?

I am also a member of the Judicial Appointments Commission. (Let me make it clear that I saying all these in my personal capacity). We are doing our best to recommend the right candidates for appointment as Judges and also for promotions. We are also trying to restore the integrity of the Judiciary which was at its lowest following the V. K. Lingam video clip incident. I dare say that the integrity of the Judiciary has improved significantly in the last four years. Besides, the Courts have succeeded to reduce the backlog and to reduce the period taken for the disposal of cases to such an extent that even the World Bank has given a favorable report about it.

But, look at a recent case involving an opposition political leaderxii. (I am not saying whether the judgment is right or wrong. I am only talking about the proceedings.) His trial took 88 working days over a period of 2 years and 10 months. During the trial he made 17 applications and 8 appeals. Amongst his applications, 3 were to disqualify the Judgexiii on the ground of bias which, in reality, was challenging his integrity. We also read reports of attempts to discredit the Judiciary and to question the independence of the Judiciary not only domestically but also internationally. There was a campaign to release him even before the judgment was given.

However, when the judgment turned out to be in his favor, he said that he was acquitted because the Government (I repeat, the Government) was worried about the negative image abroad if he were convictedxiv. Is that not equating the Court with the Executive? Is that not an allegation or an inference that the Judge took instruction from the Executive to arrive at his decision or that the Executive dictated the decision to him? Or, to use the “popular terminology”, is that not an allegation or inference that there was a “conspiracy” between the Government (i.e. Executive) and the Judge (i.e. Judiciary) to acquit him? By that statement, is the independence and the integrity of the Judge, the court and the Judiciary not brought into contempt? (It is interesting to note that on the following day, his own counsel denied (“sangkal”) the reason given by his client for his acquittal and went on to say that the judgment was based on evidence and that the Government had nothing to do with it.)xv

During the same period, a former Menteri Besarxvi was charged for corruption. The trial went on smoothly and quietly. It only took 19 working days over a period of one year.xvii Even when he was convicted, he did not criticize the Judge or the Judiciary. Similarly, Datuk Haji Harun Bin Haji Idrisxviii, Haji Abdul Ghani Bin Ishakxix, Dato‟ Wa‟ad Bin Mansorxx, Datuk Haji Zulkifli Bin Datuk Abdul Hamidxxi, Datuk Sahar Arpanxxii, Dato Haji Mohamd Muslimxxiii, Dato‟ Mokhtar Hashimxxiv or, for that matter, Tun Dr. Ling Leong Sikxxv and Dato‟ Chan Kong Choyxxvi, whose trials are still pending, all fought or are fighting their respective cases on merits, not by attacking the Judges and the Judiciary.

I sympathize with those Judges and government officers. I know a great majority of them are discharging their duties diligently and honestly, without even looking at the clock. However, they should not despair because, eventually, truth will prevail and honesty will supersede all. Believe me. I am speaking from experience.

Actually, on every human being, on every one of us, there is a price tag, an integrity price tag, though unwritten and not displayed, is known and agreed to by all. Behind the praises, the handshakes and the smiles that people give us, deep inside their hearts, it is that invisible integrity price tag attached to us that matters. Perhaps that is why Ralph Waldo Emersonxxvii said. “A little integrity is better than any career.”xxviii

To conclude, and with the voice that Allah s.w.t. has given back to me, let me remind myself and those who do not mind being reminded with the words of Allah:

We have indeed created man in the finest of molds,

Then We reversed him to the lowest of the low,

Except those who believed and did good works; for them there is a reward unending. - At-Tin (95): 4,5 and 6 (Maududi).

Hopefully, we will be among the exceptions.

Thank you.


i Searchquotes.com

ii He was referring to Tun Hussain Onn

iii American systems theorists, architect, engineer, author, designer, inventor and futurist.(1895-1983)

iv Businessman, philanthropist and New Thought self-help book author (1902-2002)

v Writer. (1940- ) Searchquotes.com

vi An Egyptian jurist, scholar and reformer regarded as the founder of Islamic modernism. (1849-1905)

vii Teoh Beng Hock, a Political Aide to a DAP State Assemblyman. Date of incident 15.7.2009.

viii Source: Office of Chief Judge (Malaya)

ix From first day of hearing until the report was completed (printed). Source: Office of Chairman of Commission of Inquiry.

x Ahmad Sarbani Bin Mohamed. Date of incident 6.4.2011

xi Sourse: Ofice of Chief Judge (Malaya)

xii Y.B. Dato‟ Seri Anwar Ibrahim

xiii Source: Office of Chief Judge (Malaya)

xiv Utusan Malaysia Online 10.1.2010

xv Utusan Malaysia Online 11.1.2012

xvi Dato‟ Mohd Khir Bin Toyo

xvii Source: Office of Chief Judge (Malaya)

xviii Datuk Haji Harun Bin Haji Idris v. PP (1977) 2 MLJ 155 (FC)

xix Haji Abdul Ghani Bin Ishak & Anor. v. PP (1981) 2 MLJ 230 (FC)

xx PP v Dato‟ Waad Bin Mansor (2005) 1 CLJ 421 (FC); (2003) 3 CLJ 833 (CA)

xxi Datuk Haji Zulkifli Bin Datuk Abdul Hamid v. PP (1981) 1 MLJ 112 (FC)

xxii Datuk Sahar Arpan v. PP (2007) 1 CLJ 326 (CA)

xxiii PP v. Dato Haji Mohamed Muslim ((1983) 1 MLJ 245 (HC) 14

xxiv Dato Mokhtar Hahim & Anor. v. PP (1983) CLJ (Rep) 101 (FC)

xxv Former President of Malaysian Chinese Association

xxvi Former Minister of Transport

xxvii American essayist, lecturer and poet. (1803-1882)

xxviii Searchquotes.com

Monday, February 27, 2012

I Believe*


* an initiative by a good friend of mine, Anas Zubedy

Dear Brother and Sister Malaysians,

I believe…

‘Until we give NO FREE RIDE to every candidate, no matter which party they may represent, we cannot stand proud and say "WE, THE RAKYAT, ARE IN CHARGE”.’

I believe that a single voter can make a difference. You and I, we are powerful!

I believe that we, the rakyat, are in charge. I believe that our votes and actions count for everything.

I believe that as we, the rakyat, move for the good of the nation, weare changing our nation for the better. I believe that we the rakyat are more powerful than all the party machineries put together.

I believe we can win when we do the right thing. I believe that God is with us when we are genuine, truthful and have faith in Him. I believe.

I am looking for fellow believers.

I am writing to you as a fellow Malaysian, a fellow believer with a heart for Malaysia. Let’s find ways as rakyat to work towards changing Malaysians and Malaysian politics for the better - with love, care and mindfulness; not with anger and hatred.

It is our collective responsibility to ensure we improve the quality of our lawmakers, regardless which party they are from. We are the real third force. This moment in time calls us as rakyat to act to make sure we get only our best people to represent us in parliament. When we get the best, it does not matter which party they are from.

If we grant the mandate for unfit Malaysians to become our leaders, we are directly responsible for letting our nation fall to neglect. So let’s work. Let’s work to make sure only the smartest, uncorrupted, hardworking, sound and healthy candidates are elected.

I need to convince you that when we believe, we can make a difference…

Read in full here.

Tuesday, February 21, 2012

The Emasculation of Our Judiciary

In any Westminster-styled democracy, a country’s administration consists of three main machinations, namely, the Legislative, the Executive and the Judiciary. The Legislative makes laws. The Executive runs the country. Lastly, but by no means the least, the Judiciary adjudicates disputes and determines them.

The Judiciary does not only adjudicate disputes amongst private citizens but also, more importantly, disputes between the citizens and the Executive (the government). In a branch of law called “administrative law”, the Judiciary inherently has the power to issue four kinds of orders against the Executive. These are traditional judicial powers which are paramount towards ensuring that rules of law are complied with not only by the people but also by the Executive.

Firstly, the Court may issue a certiorari order to quash any decision of the Executive. Secondly, an order of prohibition may be issued to restrain the Executive from doing any act. These two orders are usually issued if the act complained of is illegal, improper or made without power (ultra vires). Thirdly, the Court may issue an order of mandamus to compel the Executive to do certain act.

Fourthly, and perhaps most importantly, a writ of habeas corpus, may be issued by the Court to compel the government to produce and free anybody who is improperly detained.

These are the traditional powers of the Judiciary. They exist for hundreds of years and have throughout the years been refined in order to keep up with the demands of modern governance.

Prior to 10th June 1988, Article 121 of our Federal Constitution provides:

Subject to clause (2), the judicial power of the Federation shall be vested in two High Courts of co-ordinate jurisdiction and status.”

Judicial powers are powers “which every sovereign authority must have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty, or property.[1]” For a democracy to work, the Judiciary must, as of right, be possessed of these powers. Otherwise, the so-called democracy is no more a democracy, where rights, freedom and liberty cannot be adjudicated and determined by an independent Judiciary possessed with the necessary powers to do so.

Tun Dr Mahathir was full of respect for our Judiciary. At the Asean Law Association General Assembly on 26th October 1982, he was reported as saying:

I will always respect the Judiciary. We do not expect the courts to be pro or anti Government, only pro the Constitution and pro the law. The Government always considers the Constitution and the law carefully before we do anything so we expect the Judiciary to be free to judge our alleged trespasses without fear or favour, but in accordance with the law, in accordance with the law of evidence and procedure justly and fairly. We shall always respect their judgments...”

His loving relationship with the Judiciary however lasted slightly longer than Katy Perry’s marriage to Russell Brand.

When the Courts made several decisions against the government, particularly in the Berthelsen’s case – where the Court held the government’s cancellation of a journalist work permit was unlawful – he became displeased. This was followed by the High Court’s decision to issue a habeas corpus writ for the release of Karpal Singh from a detention. In the midst of it all, Justice Harun Hashim declared UMNO illegal and dissolved the party.

Tun quickly forgot what he said in 1982. He then viewed that the Judiciary was trying to take over the administration of Malaysia from his government.

Tun Dr Mahathir was reported in the 24 November 1986 issue of Time magazine, as saying:

The Judiciary says , ‘Although you passed a law with certain thing in mind, we think that your mind is wrong , and we want to give our interpretation.’ If we disagree, the courts say, ‘We will interpret your disagreement.’ If we go along, we are going to lose our power of legislation. We know exactly what we want to do, but once we do it, it is interpreted in a different way, and we have no means to interpret it our way. If we find that a court always throws us out on its own interpretation, if it interprets contrary to why we made the law, then we will have to find a way of producing a law that will have to be interpreted according to our wish.”

He then moved the Parliament in 1998 to amend Article 121 of our Constitution. Now, it is stated that the Courts will only have judicial powers “as may be conferred by or under Federal law.” That means Malaysia is the only Commonwealth country whose Courts do not have judicial powers unless the Legislative says so.

On 18th March 1988, in moving for the above amendment, Tun Dr mahathir said in the Parliament:

“... to achieve a balance the country needed a civil service and Judiciary which did not involve itself in politics…But unfortunately lately we find incidents where some members of the Judiciary are involved in politics…By possessing qualities termed as ‘fiercely independent’, these members are indirectly involved with ‘opposition politics’. And to display that their independence is really ‘fierce’ they often bend over backwards to award decisions in favour of those challenging the Government.”

With the amendment passed, the Courts quickly became impotent and subservient to the Legislative. Unfortunately too, members of the Legislative are also members of the Executive. That put paid to any semblance of a checks and balance mechanism between the powers that be and the Judiciary.

When the people have legal disputes, where else do they go but the Courts? However, with the 1998 amendment, the Courts are powerless to assist in more than many instances.

The present administration has pledged transformation. Socially, promises have been made to review and even repeal draconian laws such as the ISA, Printing Presses and Publication Act; Police Act and many others. That is to be lauded.

Any national transformation however would not, in my humble opinion, be complete until and unless the position of the Judiciary be restored to its rightful position. It is humbly urged that the present administration look into re-amending Article 121 of the Federal Constitution to its former position.

[1] Professor Aun Min, Wu in The Malaysian Legal System, pg 283

Wednesday, February 08, 2012

Some mothers do have ‘em…



Ever so often, we have news of children who die falling off into drains; drown with their siblings at some beaches in Port Dickson; die of serious burns while playing with matches without any adults around them; die of heatstroke after being left alone in a locked vehicle under the hot sun while their mother was doing some household shopping etc etc.

Some months ago I watched a father lamenting the fact that his children had drowned at a beach while he was praying. Yea, right. He had the clarity of mind to leave his kids unattended at a beach and went praying.

It is obvious that some of us are not fit to be parents. These people forget that children are not mere by-products of sex, legal or otherwise. With kids come the responsibility. And if we are not prepared to take the responsibility of being parents seriously, or at all, we’d better not be one. It is as simple as that.

In England for example, a day after any incident resulting in a calamity to children, the authority would come a-knocking on the parents’ door. Without question they would take away the remaining children until they are sure that the parents are fit to raise their remaining children.

Over here, I remember there were calls sometime ago for a negligent parent whose child died to be punished. But of course people in authorities as well as a section of the public could be heard saying why must we compound the agony of the parents who had just lost their kid. Well, how about the kid? He died, for God’s sake.

I know the action of the welfare authorities in England may sound harsh, inhumane and unkind. However, incidents involving parental negligence in our country have seen a steady rise.

Our lackadaisical attitude towards our children’s safety can be seen every day. Yesterday alone I saw a lady walking a good 5 metres away from her 4 or 5 year old boy. The boy was of course walking in the middle of the street. The mother just walked as if nothing was happening.

Nowadays it is also of course quite trendy for some of us to drive in continental vehicles with sunroof. And scenes like the one in the picture above are quite prevalent too nowadays. If I remember correctly, last year I saw a TV3 news about a girl who was allowed by her father to do like the child in the picture in a car which was driven along a busy road in KL. Her head was stuck when the sunroof closed by itself and could not be re-opened! It made the news on TV3!

Traffic safety is our responsibility. It is not enough for all of us to just hope that the PDRM and JPJ to reduce accidents etc. We must realise that the responsibility first of all is ours to ensure traffic safety. The PDRM and JPJ are just law enforcers. If we could not be bothered with even our own safety, can we expect the PDRM and JPJ to reduce accidents?

Most importantly. children are God’s gift to us. They rely on us for almost everything until the time comes for them to look after themselves.

Do we want to fail them?

Tuesday, February 07, 2012

Newspapers – your fate is in your own hands

The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.” - Thomas Jefferson (letter to Edward Carrington, 1787)

When I was growing up in a small village in Kedah, only a handful of the villagers read newspapers. There wasn’t even a newspaper vendor in my village and that was probably because there was no market for newspapers then.

The villagers who wanted to buy newspapers had to place their order with a shopkeeper. The shopkeeper would then order them from a vendor in Alor Star. The vendor in Alor Star would then send them to the shopkeeper in my village by bus. Every day, the newspapers would arrive by about 1 or 2pm, courtesy of the friendly Bas MARA driver.

My father was one of those handful of villagers who actually ordered Utusan Melayu (that’s how and why I manage to read “jawi”) every day. On weekends, Mingguan Malaysia was added to the order.

When I grew up and was in the hostel, I read whatever newspapers available at the library. In the university, the Star was my staple diet. Truth be told, the Star actually helped me to improve my English while in the university.

I have however stopped reading printed newspapers about 10 years ago.

There are two basic reasons for that. Firstly, the advent of the internet means that I could have access to the news on the go, even from the BBC, Reuters, CNN and the likes. Secondly, I am afraid to say, rightly or wrongly, I have credibility issue with local newspapers.

Both the above reasons are intertwined. Prior to the internet age, newspapers were the main sources of news in printed form. Government programmes were publicised through the newspapers, radio and TV stations (RTM being the only stations available). Once in a blue moon, a Jabatan Penerangan truck with portable loud speakers, large movie screen and film projector would come to the village school to show a movie. In the middle of the show, there would be a short interval. During the interval, announcements would be made by the Jabatan’s officer about pending government programmes and the likes.

The people had no other means to access information. Unfortunately, newspapers, owing to the information monopoly which they then possessed, had to a large extent abused its power over information. If knowledge was power, then power over knowledge, especially a monopolised one, is debilitating.

Reports were often spun in order to suit whatever agenda, political or otherwise, which the newspapers serve. I remember one particular newspaper reporting that the 1st Bersih rally had only attracted 6000 people. There was another newspaper which blanked out a political party’s emblem from a picture of an umbrella in a murder report. Recently, another newspaper blanked out Malaysia’s name from an international report which was not too flattering towards our country.

Before the advent of information technology, our newspapers did all these things with impunity. They seldom got caught. Even if they were, by the time they got caught, the particular issue would have gone stale and became irrelevant.

Enter the age of the internet. Information travels at the speed of light nowadays. And quite literally too. Information in analogue form is now instantly converted into digital form. These digital codes are then beamed all over the world through optic cables in the speed of light. Pictures of events are instantly posted on social networking sites such as Facebook, Twitter and blogs as well as internet news portals. Comments are made and published as and when the events take place. Articles are written and analysis made within minutes thereafter.

Newspapers editors should now realise that it is 2012 we are talking about. Any misreporting or “creative inputs” which negate the original news could be found out in an instant and corrected much to the embarrassment of the newspapers in question. They should now realise that information is not within their absolute purview and power anymore. The whole cyber world is now empowered. And they are so ever willing to share this new-found empowerment.

Some of us would have read by now how Kodak had filed for bankruptcy protection under Chapter 11 of the American bankruptcy laws recently. This is a company which had almost monopolised the photography industry. It has more than a thousand patents on digital photography technology. However, unfortunately, it failed to adapt to modern technologies, a number of which it even owns. It is now paying the price.

Newspapers, I am afraid, could suffer the same fate if they fail to adapt to this new-age world of information freedom. They would lose credibility and readership.

All of us who professionally use the mass media are the shapers of society. We can vulgarise that society. We can brutalise it. Or we can help lift it onto a higher level,” says William Bernbach, (of DDB Needham Worldwide), in 1989. That is true. Newspapers have its function. They can shape the society, vulgarise it, brutalise it or enlighten and lift it to a higher plane.

The question is, what would our local newspapers want to do?