Monday, March 30, 2009

Najib It Is

Malaysia's leading ethnic party names a scandal-ridden party hack as its head and the country's leader


Written by Our Correspondent
Sunday, 29 March 2009

On Friday, Malaysia is scheduled to end months of waiting to announce its new prime minister, Najib Tun Razak, after the United Malays National Organization, the country's biggest ethnic party named him their leader during their annual convention.

Najib told the UMNO parley, held in Kuala Lumpur last week, that it is crucial that his party reform itself or it will lose its hold on the electorate. But Najib's history, and that of the party itself, portends instead a return to the politics and practices that got the national ruling coalition into trouble in the first place, losing its historic two-thirds majority in the national parliament in national elections last year. Najib's ascent to power more likely represents a clear preference by UMNO stalwarts to return to cronyism, money politics and corruption after an eight-year interregnum from the authoritarian reign of Prime Minister Mahathir Mohamad.

The new prime minister's history may make it problematical whether the leaders of major countries are going to want to be seen with him. Concerns include hundreds of millions of dollars in questionable contracts steered to UMNO cronies and friends, not to mention continuing allegations of his involvement in the murder of the Mongolian translator Altantuya Shaariibuu following the controversial purchase of French submarines and, more recently, his role in sabotaging the opposition in the state of Perak and his shuttering newspapers and thwarting opposition candidates during his own party's elections last week.

The convention itself was a good example. Opponents of the Najib team were denied places on the ballot by a panel supposedly charged with cleaning up money politics, although they let Najib's allies slide by after having committed the same offenses. The result was that the deputy president, Muhyiddin Yassin, and all three vice presidents are from the Najib faction although the Najib forces were unable to prevent Khairy Jamaluddin, the son-in-law of ousted Prime Minister Abdullah Ahmand Badawi, from becoming head of the important UMNO Youth wing. They also were unable to stop Shahrizat Abdul Jalil from defeating longtime party hack Rafidah Aziz to take over the Wanita, the women's wing of the party, also a Badawi ally.

The final election night erupted into name-calling, with allies of Mukhriz Mahathir, the son of the former prime minister, charging that Khairy had bought the votes to make him head of UMNO Youth. Mahathir Mohamad himself railed against the two candidates against his son, calling them corrupt. Rais Yatim, the foreign minister, who lost out in one of the vice president races, demanded that UMNO's disciplinary board investigate the entire new supreme council over allegations that they had delivered gifts and money to delegates in the effort to win their seats. Mahathir Mohamad has repeatedly launched furious attacks on UMNO leaders, calling them corrupt although he showed up at the last night of the convention to be seen with Najib and others.

The UMNO-owned New Straits Times described the top party positions as having "given much-needed breathing space to Najib as he sets out to unite UMNO and push the party to undertake the reforms he has promised. He will have less of a task to deal with the factionalism that so often arises after a bitterly fought contest in the party." But in fact, UMNO appears to be as much riven by factional politics as it was going into the convention.

As early as April 8, the party faces the first of three important by-elections – one for a seat in the Dewan Rakyat, or national assembly, and two more for state legislative seats. The first test is for a Perak seat in which support for the Barisan appears to be waning.

"The problem is not the opposition, but within our own ranks," a local leader told the Kuala Lumpur-based website Malaysia Insider, referring to the perennial problem of factionalism within Umno.

Najib has sought to nullify the opposition with force. Last Monday, a rally led by Opposition Leader Anwar Ibrahim was broken up by police who fired tear gas at the audience. Other rallies have been cancelled as well. Two opposition newspapers were cancelled until after April 8, the date of the Perak national by-election, presumably because the two papers have hammered away at allegations of Najib's connections with the two men on trial for killing Altantuya in October of 2006 and her role in the €1 billion purchase of French submarines that netted one of his closest friends €114 million in "commissions."

To say Najib brings considerable baggage with him is an understatement. While attention has focused on allegations of corruption in the submarine purchases, the fact is that as defense minister from 1999 to 2008, Najib presided over a cornucopia of defense deals that poured a river of money into the coffers of his close friends and UMNO cronies. A September 24, 2007 story in Asia Sentinel quoted Foreign Policy in Focus, a think tank supported by the Institute for Policy Studies in Washington, as saying that "many foreign arms manufacturers generally used well-connected Malaysians as their lobbyists for contracts."

Three contracts approved under Najib have been widely cited by the opposition and fit well into Foreign in Policy in Focus's patronage scale. They have been forced back into public attention by his ascension to the premiership and by the exoneration under questionable circumstances of Abdul Razak Baginda, one of his closest friends, for Altantuya's murder.

Spending for defense accelerated across the board after Najib, called "the driving force" behind Malaysia's military modernization program by Foreign Policy in Focus. The shopping list, the think tank reported, "includes battle tanks from Poland, Russian and British surface-to-air missiles and mobile military bridges, Austrian Steyr assault rifles and Pakistani anti-tank missiles. Kuala Lumpur was also negotiating to buy several F/A 18s, the three French submarines and Russian Suhkoi Su-30 fighter aircraft.

It was the Sukhois that, after the French submarines, became the second controversial purchase brokered by Najib. The deal, worth US$900 million (RM3.2 billion), was through a Russian state company, Federal State Unitary Enterprise 'Rosoboronexport' on May 19, 2003. A company called IMT Defence Sdn. Bhd. was appointed the local agent for the Russian company and received 12 percent of the purchase price, US$108 million (RM380 million). The principal figure and chairman of IMT Defence is Mohamad Adib Adam, the former chief minister of Malacca, the previous Land and Development Minister and a longtime UMNO stalwart.

The involvement of IMT Defence only became known because in March 2005, a former director of IMT, Mohamad Zainuri Mohamad Idrus, filed suit against several Adib-related companies, alleging that Adib and his sister, Askiah Adam, "wanted to prevent him from exposing the reality of the Sukhoi deal." In 2006, Mohamad Zainuri lodged a police report alleging that Adib had stolen the US$108 million (RM 380 million) commission that was supposed to be channeled to the company.

According to Mohamad Zainuri's report, Adib had secretly registered a new company in the federal island of Labuan, Malaysia's offshore banking center, bearing a name similar to IMT Defence Sdn Bhd, allegedly in order to channel the commission illegally to the new company. The report was then sent to the Commercial Crime Investigations Department Headquarters. No report, however, has ever been released to the public.

Then, in late 2007, a third military scandal surfaced. Malaysia's Auditor General, in a report tabled in Parliament on September 7, alleged that a contract to build naval vessels given to PSC-Naval Dockyard, a subsidiary of Penang Shipbuilding & Construction Sdn Bhd, which is owned by another UMNO crony, Amin Shah Omar Shah, was near failure.

PSC-Naval Dockyard was contracted to deliver six patrol boats for the Malaysian Navy in 2004 and complete the delivery by last April. Those were supposed to be the first of 27 offshore vessels ultimately to cost RM24 billion plus the right to maintain and repair all of the country's naval craft. But only two of the barely operational patrol boats had been delivered by mid 2006. There were 298 recorded complaints about the two boats, which were also found to have 100 and 383 uncompleted items aboard them respectively.

The original RM5.35 billion contract ballooned to RM6.75 billion by January 2007. The auditor also reported that the ministry had paid out Rm4.26 billion to PSC up to December 2006 although only Rm2.87 billion of work had been done, an overpayment of Rm1.39 billion, or 48 percent. In addition, Malaysia's cabinet waived late penalties of Rm214 million. Between December 1999, according to the Auditor General, 14 "progress payments" amounting to Rm943 million despite the fact that the auditor general could find no payment vouchers or relevant documents dealing with the payments.

The auditor general attributed the failure to serious financial mismanagement and technical incompetence stemming from the fact that PSC had never built anything but trawlers or police boats before being given the contract. Once called "Malaysia's Onassis" by former finance minister Daim Zainuddin, Amin Shah was in trouble almost from the start, according to a report in Singapore's Business Times in 2005. The financial crisis of 1997-1998 meant he was desperate to find funds to shore up ancillary businesses, Business times reported.

After a flock of lawsuits, the government ultimately cut off funding in 2004 amid losses and a net liabilities position. Boustead Holdings effectively took control from Amin Shah, reducing him to non-executive chairman.

The scandal is bringing shame to the nation and damaging our international credibility. For the honour of the nation, for the honour of the office of prime minister, for the honour of the sovereign institutions expected to endorse, confirm and lend authority to him should he become prime minister according to Umno's plans, Dato' Seri Najib Tun Razak should finally face these suspicions and implied charges, submit himself to legal scrutiny, and come clean on them."

"Swearing on the Al-Quran is not the way out," Razaleigh continued. "Scoundrels have been known to do that. The truth, established through the rigorous and public scrutiny of the law, is the only remedy if an untrue story has gained currency not just internationally but at home among a large section of the people. Najib should voluntarily offer to testify at the trial of the two officers charged with killing Altantuya Shaariibuu. He could also write to these newspapers and if necessary he should take legal action against them to clear his name and that of our country."
The case has troubling aspects that have increasingly been noted in British and French newspapers after Asia Sentinel raised them in 2007. They bear repeating.

According to testimony in the trial of the two men accused of killing her, Altantuya accompanied her then-lover Abdul Razak Baginda to Paris at a time when Malaysia's defense ministry was negotiating through a Kuala Lumpur-based company, Perimekar Sdn Bhd, to buy two Scorpene submarines and a used Agosta submarine produced by the French government under a French-Spanish joint venture, Armaris, which in turn was bought by DCNS, a French contractor, in 2007. Perimekar at the time was owned by a company called Ombak Laut, which was wholly owned by Abdul Razak.

The contract was not competitive. The Malaysian ministry of defense paid €1 billion (RM 4.5 billion) to Amaris for the three submarines, for which Perimekar received a commission of €114 million (RM510 million). Deputy Defense Minister Zainal Abdidin Zin told the Dewan Rakyat, Malaysia's parliament, that the money was paid for "coordination and support services" although the fee amounted to a whopping 11 percent of the sales price for the submarines. Altantuya, by her own admission in the last letter she wrote before her murder, said she had been blackmailing Abdul Razak Baginda, pressuring him for US$500,000. She did not say how she was blackmailing him, leaving open lots of questions.

The French government has never shown any enthusiasm for investigating French companies alleged to be involved in corruption in gaining contracts overseas. It appears likely that it will in this case.

After Altantuya was murdered, one of her accused assassins, Sirul Umar, in a written confession, said he and his boss had been offered RM50,000 to RM100,000 to kill her. In the 22 months since the trial began, nobody in court has thought to ask who was going to pay the money. Abdul Razak Baginda was exonerated by the court and has left the country to study at Oxford.

Thursday, March 26, 2009

We should all come clean


Tengku Razaleigh’s official weblog @razaleigh.com

Yesterday I gave an interview to Sarah Stewart, the Bureau Chief of AFP in Malaysia. Among the questions she asked me was the unavoidable question about the international scandal linking Dato’ Seri Najib Razak with the murder of Altantuya Sharibuu and with the purchase of the Scorpene submarines.

I told Sarah that in my long experience as a politician the only way to clear one’s name when a scandal has broken out around oneself is to meet it head on in the court of law. The BMF scandal of the 1980’s also had its share of lurid detail. There too a large sum of money and a murder was involved. An unseen hand had woven the threads of the story around me to destroy me politically. But when international newspapers alleged that I was involved in any wrongdoing, I took action against each and every one of them in their home jurisdictions.

I sued The Telegraph and The Sunday Times of the UK, and The South China Morning Post of Hong Kong. I won all three cases, the newspapers published unreserved apologies and printed retractions covering half a broadsheet page each, and I came away with a tidy sum of money for my trouble.

It is safe to say that in the international media, the incoming Umno President and the presumptive Prime Minister is being evaluated through the Altantuya scandal. The UK’s Sunday Times, the International Herald Tribune, the French daily, Lib√©ration, The Australian Financial Review, the Far Eastern Economic Review and the New York Times have all published stories raising questions about the link between the murdered young woman, Dato’ Seri Najib, and the gigantic commission paid out by the French company Armaris to a Malaysian company for the purchase of submarines. This is now an international story.

And this story will not go away. With its dramatic details and the alleged involvement of elite Malaysian government operatives, it captures the journalistic imagination. But the story is now connected with an ongoing investigation into the dealings of a major French company. The story is also going to stick around because it is a handy looking-glass into Malaysia’s “increasingly dysfunctional political system.” It implicates our entire system of government, our judiciary, and our press, and it casts a shadow on our ability as a nation to face and tell the truth. Against this backdrop promises of reform ring hollow. The storyline of the New York Times article, for example, is that scandal-clouded succession reveals a once confident young country shaken to its foundations by institutional rot. I cannot say this is inaccurate.

The scandal is bringing shame to the nation and damaging our international credibility. For the honour of the nation, for the honour of the office of prime minister, for the honour of the sovereign institutions expected to endorse, confirm and lend authority to him should he become prime minister according to Umno’s plans, Dato’ Seri Najib Tun Razak should finally face these suspicions and implied charges, submit himself to legal scrutiny, and come clean on them.

Swearing on the Al-Quran is not the way out. Scoundrels have been known to do that. The truth, established through the rigorous and public scrutiny of the law, is the only remedy if an untrue story has gained currency not just internationally but at home among a large section of the people.

Najib should voluntarily offer to testify at the trial of the two officers charged with killing Altantuya Sharibuu. He could also write to these newspapers and if necessary he should take legal action against them to clear his name and that of our country.

Tuesday, March 24, 2009

A Tighter Grip in Malaysia

In Slowing Economy, Pressure Rises on Foes of Incoming Premier

By JAMES HOOKWAY

The Malaysian government suspended two opposition-party newspapers without explanation Monday, fueling charges that Deputy Prime Minister Najib Abdul Razak is trying to silence opponents as he prepares to become prime minister next month.

Opposition politicians and some political analysts say Mr. Najib has been working to sideline potential rivals, including those within his own party, as Malaysia -- an important U.S. trading partner -- begins to feel the full brunt of the global economic crisis. Some economists project a 4% contraction this year.

[A Tighter Grip in Malaysia]

Mr. Najib, the 55-year-old British-educated son of Malaysia's second prime minister, is running unopposed for his party's presidency at a party assembly this week, and in that role is expected to become prime minister in early April. Since last year, when Prime Minister Abdullah Ahmad Badawi declared his intention to step down, Mr. Najib has emerged as Malaysia's most powerful politician.

A number of politicians whom analysts perceive as loyal to Mr. Abdullah were banned from contesting senior party posts at this week's assembly of the United Malays National Organization because of allegations of corruption, improving Mr. Najib's chances of a tighter grip over UMNO party politics. UMNO is the main party in the coalition that has run Malaysia since independence from Britain in 1957.

Opposition leader Anwar Ibrahim, whose party's publication was one of those suspended, says the closures were intended to silence criticism of Mr. Najib's premiership, which is expected to begin in early April. The suspensions "are part of a disturbing trend which reflect what Mr. Najib is all about," he says.

Mr. Anwar, a former deputy prime minister, says he believes the three-month shutdown of the newspapers was partially intended to stop reporting of allegations of corruption in weapons purchases for Malaysia's armed forces while Mr. Najib was defense minister.

Mr. Najib, who didn't respond to requests to be interviewed for this article, has said there was no corruption in the purchases.

Opponents say UMNO leaders are steering the country back into its authoritarian past to thwart any public backlash against the ruling coalition as the nation's economy slows.

"We believe we are in for more punitive measures" when Mr. Najib takes power, Mr. Anwar said after the newspaper suspensions. On Monday evening, riot police fired tear gas to break up a political rally led by Mr. Anwar in northern Malaysia, according to local media and Mr. Anwar's aides. It wasn't immediately clear why the police acted.

The global economic crisis is sapping foreign demand for Malaysia's exports of electronic components and mineral resources. The slump threatens to further polarize a country that has depended on growth rates of 5% or more to create enough jobs and wealth to damp ethnic tensions. -wsj.com

Write to James Hookway at james.hookway@awsj.com

Monday, March 23, 2009

How a new government is formed


by Tengku Razaleigh Hamzah
@razaleigh.com

In a recent interview I was quoted as saying that the Yang di-Pertuan Agong could appoint someone other than the man nominated by the party. The fact that this was reported as “news” shows how far we as a country have drifted from the principles set out in our Constitution.

Let us understand very clearly the transitional situation we are in.

1. The incumbent Prime Minister is about to resign as he has solemnly promised to by the end of this month.

2. On the appointed day (which like so many things in this administration remains a mystery) the Prime Minister will tender his resignation and that of his cabinet to the Yang di-Pertuan Agong. With this the government of the day comes to an end.

3. The Yang di-Pertuan Agong will appoint the next Prime Minister at his sole discretion from among the members of the elected lower house of Parliament, the Dewan Rakyat. His Majesty’s choice is guided by his own judgment of who among the members “commands the confidence” of a majority the members of parliament.

4. The new Prime Minister will name his cabinet and form the next government.

5. The Agong’s choice may at any time be tested by a vote of confidence in the Dewan Rakyat. If the Prime Minister is rejected by the Dewan, the King will have to re-appoint another person.

As there has been much confusion on this point let me restate it:

The Yang Dipertuan Agong has sole and absolute discretion in how he forms his judgment as to who in the Dewan Rakyat commands the confidence of the majority. The choice is his alone.

The choice is absolute but not arbitrary, since it is guided by the Constitution. The right is the Agong’s alone, but it can any time afterwards be tested by the Dewan Rakyat.

This system is democratic in that it provides for the Dewan Rakyat and the Ruler to check and balance each other’s powers in an orderly manner. The participants in this process are the Ruler and the individual members of parliament. Within the Dewan Rakyat, each member is accountable to his constituents as an individual. Political parties do not enter this description. The Agong’s concern is solely for the rakyat. In his formal capacity, His Majesty sees each member of the House only as representing his subjects in a particular constituency. This is why MP’s are referred to only by the constituencies they represent. Their party affiliation is no consideration at all.

Let me draw on some implications of this understanding of how our governments are formed.

1. Whatever undertakings the present prime minister has made with his deputy or with his party about his successor are external to the constitutional process. To think otherwise is to imagine that the prime ministership is a private property to be passed on from one potentate to another at whim. The behaviour of some leaders might have conveyed this unfortunate impression, and caused the public to find the party arrogant and out of touch.

2. The fact that the President of UMNO has also been appointed as Prime Minister is only a convention, as Tun Dr Mahathir, Tan Sri Muhyiddin Yassin and Datuk Seri Nazri Aziz have asserted recently. This convention was based on the assumption of Umno’s absolute dominance of Parliament. That condition no longer holds.

3. Statements in the media that it is the right of Umno and BN to dictate to the Yang Dipertuan Agong who should be Prime Minister deny the constitutional right of the Yang Dipertuan Agong, and deprive him of perhaps the most important of his few discretionary powers. Such statements turn the Agong’s role into a rubber stamp for the decisions of a political party. I am waiting for Umno to strongly denounce such statements, especially as we have recently rediscovered our concern for the rights of the Rulers.

Over the last quarter century, the rulers, like the legislature, the judiciary, the police, the universities and all our major public institutions, have had their powers systematically curtailed and their immunities removed to make way for unruly executive power. In the process, fundamental principles such as the separation of powers have been ignored. Umno itself has not been spared this process as it has become more autocratic and top-down to the dismay of millions of ordinary members.

Over time the rakyat have been so conditioned to the abuse of executive power that many have forgotten that the government is more than the prime minister and his cabinet. Many have forgotten how a properly functioning government works and what the rule of law looks like. Perhaps this is why it is news to some that the Yang di-Pertuan Agong has an independent role to play, just as the judiciary and the legislature do.

Malaysia has fallen into a spiral of institutional and economic decline. If we are to save this country from long term and increasingly tragic decline, the next government appointed by the Yang di-pertuan Agong must not only be fully committed to restoring the Legislature, the Judiciary and the Rulers to their proper dignity and independence, it must be seen by the Malaysian public to be capable of doing so.

Saturday, March 21, 2009

Malaysia is roiled by a crisis of democracy


By Thomas Fuller
Published: March 19, 2009


KUALA LUMPUR: A slew of political scandals gripping Malaysia and a transfer of power fraught with uncertainty have embroiled the elite here with exquisitely poor timing.

As a major trading nation, Malaysia is being slammed by the global downturn, its exports collapsing by nearly one-third and current projections showing that its economy will shrink by as much as 5 percent this year.

Yet the main preoccupation of the government and opposition parties appears to be what analysts are describing as an increasingly dysfunctional political system: The man who is in line to become prime minister is linked to the murder of a Mongolian woman whose body was obliterated with military-grade explosives. The opposition leader awaits trial on sodomy charges in a highly politicized case. The government is using draconian laws, including those against sedition, to prosecute opposition figures, and this week it banned a member of Parliament for one year after he called the prime-minister-in-waiting a murderer.

Meanwhile, the Legislature of one of the largest states in the federation has been paralyzed for six weeks over a dispute over who should govern.

‘‘At the rate things are going, we’re going to be a failed state within a decade,’’ said Salehuddin Hashim, secretary general of the People’s Justice Party, the largest opposition party. ‘‘I’m at a very low point in what I expect for my children.’’

For an oil-rich country with a gleaming, cosmopolitan capital and a large, well-educated middle class, the pessimism may seem hyperbolic. But analysts say the current political woes strike at the heart of the functioning of government, damaging core institutions like the royalty, the judiciary, the police and the news media.

‘‘I see a rough ride ahead for the country,’’ said Zaid Ibrahim, the founder of Malaysia’s largest law firm, who resigned as law minister in September over the government’s practice of detaining its critics without trial. ‘‘The institutions of government have become so one-sided it will take years to restore professionalism and integrity.’’

Much of the anxiety in Malaysia is focused on the rise of Najib Razak, a veteran politician in line to become prime minister sometime after the governing party’s annual general assembly next week. No date has been set, and some Malaysians speculate that the current prime minister, Abdullah Badawi, will hold onto power, although he has said repeatedly that he would step down.

Mr. Najib’s supporters say he will reverse the sagging fortunes of the governing party, the United Malays National Organization, and offer decisive leadership, a contrast to the languid style of Mr. Abdullah, who is from the same party. But Mr. Najib lacks popular support, and many expect further crackdowns on his opponents if he becomes prime minister.

Both Mr. Najib and his spokesman, Tengku Sariffuddin Tengku Ahmad, declined to comment for this article.

In a speech on Wednesday, Mr. Zaid, the former law minister, called on Malaysia’s king to reject Mr. Najib if the party puts him forward as prime minister and to appoint someone who would ‘‘bring us back from the brink.’’

The most high-profile scandal to tarnish Mr. Najib’s reputation is the murder of the Mongolian woman, Altantuya Shaariibuu, the mistress of Mr. Najib’s foreign policy adviser. Her life and death, a mix of soap opera and horror movie, have captivated and shocked the public.

Prosecutors say Ms. Shaariibuu was killed in October 2006 by government commandos who also serve as bodyguards to the country’s top leaders.

Mr. Najib has not been charged with any crime, but lawyers say the handling of the case has been irregular and criticize the prosecution for failing to call Mr. Najib to testify.

When she was murdered, Ms. Shaariibuu was reportedly seeking her share of a commission — the opposition calls it a bribe — worth €115 million, or $155 million, paid by a French company as part of the government’s deal to buy submarines. Mr. Najib, who is defense minister as well as deputy prime minister, handled the submarine purchase.

The huge size of the commission — about 10 percent of the total cost of the submarines — is not being investigated despite an official acknowledgement by the Malaysian government that it was made to a company linked to Mr. Najib’s aide, who was acquitted in connection with Ms. Shaariibuu’s murder.

Perhaps more worrying for the country is the standoff in Perak, a state where since early February the police have barred lawmakers who oppose the governing party from entering government buildings.

Mr. Najib spearheaded an effort to install a new chief minister in Perak by claiming that he had enough defectors from the opposition coalition, the Pakatan Rakyat, which last year took control of the State Assembly for the first time since independence from Britain in 1957.

Both sides remain at an impasse, and the sultan of Perak has rejected a plea by the speaker of the Assembly for a new election, which polls indicate would probably restore the opposition coalition to power.

Ibrahim Suffian, director of the Merdeka Center, an independent polling agency, said that as the governing party’s popularity wanes, Malaysia is failing a key test of any democracy: the peaceful transfer of power.

‘‘Malaysian democracy hasn’t fully matured in the sense that those who lost the elections are unwilling to accept the results,’’ Suffian said. ‘‘There’s still some lack of acceptance of how democracy works.’’

The United Malays National Organization has governed Malaysia since independence but came close to losing power in elections last March, a watershed that put into question the country’s ethnic-based party system.

Mr. Zaid, the former law minister, traces the roots of Malaysia’s current troubles to the privileges given to the country’s dominant ethnic group, the Malays. Governments led by the United Malays National Organization have provided contracts, discounts and special quotas to Malays through a far-reaching affirmative action program.

‘‘We have sacrificed democracy for the supremacy of one race,’’ said Mr. Zaid, who himself is Malay. ‘‘It’s a political hegemony.’’

The other two major ethnic groups in the country, Chinese and Indian, have increasingly withdrawn their support for the governing party in recent years and now largely back the opposition. Only 18 percent of Chinese voters and 28 percent of Indian voters polled by the Merdeka Center in December and January said they thought Mr. Najib would make a good prime minister. Mr. Najib had the support of 57 percent of Malays in the poll.

Declining support for the governing party has heightened the personal rivalry between Mr. Najib and Anwar Ibrahim, the opposition leader facing sodomy charges. In a measure of the political nature of the case, Mr. Anwar’s accuser met with Mr. Najib before going to the police.

‘‘Our position vis-√†-vis Najib is clear,’’ Mr. Anwar said in an interview. ‘‘He has become so repressive and crude in his methods.’’

‘‘There’s no way we will have any dealing or respect for him,’’ he added. --IHT

Wednesday, March 18, 2009

Text of Dato' Zaid Ibrahim's speech

THE following is an excerpt of a speech by Datuk Zaid Ibrahim delivered at a weekly luncheon meeting of the Rotary Club of Kuala Lumpur DiRaja at the Shangri-La Hotel in Kuala Lumpur on 18 March 2009.


by Dato' Zaid Ibrahim

This is the second time I have been invited to address a Rotary Club. Thank you for the honour. Given the times we live in, perhaps it might be appropriate for me to speak about the leadership transition that has been foisted upon us Malaysians.

I say ‘foisted’ because neither me nor anyone in this room had any role or say in the choice of the person who will lead Malaysia next. We were mere bystanders in a political chess game. And yet the transition is a subject of great consequence to the nation, one I would say is of great national interest.

Leadership is definitive; the individual who assumes the mantle of leadership of this nation, whomever that may be, is one who for better or worse will leave his mark on us. His will be the hand who guides us to greater success, or possibly gut-wrenching disaster.

Save for the dawn of Merdeka, never in the history of this country has the choice of prime minister been so crucial: Malaysia is in crisis. We are facing tremendous economic challenges with unavoidably harsh socio-political consequences. Our much undermined democracy is once again being assailed by those who would prefer a more autocratic form of governance.

Our public institutions are hollowed out caricatures, unable to distinguish vested party interests from national ones, unable to offer the man in the street refuge from the powerful and connected. Our social fabric that took us from colony to an independent nation and on through the obstacles of nation building has reached a point where it sometimes feel like we are hanging on by a thread. This is the Malaysia we live in.

PM’s resignation ill-fated

This is the Malaysia which Abdullah Ahmad Badawi leaves behind. Our prime minister will resign later this month - an ill-fated decision. I say ill-fated not because he has been a great prime minister and we would lose irreplaceable leadership, that is regrettably not the case as all things said and done, Abdullah could have done much more for Malaysia.

Rather, I say that his resignation is ill-fated because his departure will expose the country to forces which may take us down the road of perdition faster than ever. Much has been said of Pak Lah being a weak leader. However, what his critics have not adequately addressed are the consequences of replacing him as prime minister with the anticipated incoming president of Umno, Najib (Abdul) Razak.

It is an undeniable truth that the average Malaysian is anxious about the anticipated transition. Many would prefer it did not happen.

There are two reasons why this is so. The first has to do with the reasoning underlying Umno’s demand for the transition itself. The second has to do with Najib personally.

We must recall that after the 2008 general election - a great success for the nation but a fiasco for Umno – one of the chief complaints by the powers-that-be within Umno was that Abdullah’s feeble leadership led to the concept of Ketuanan Melayu being challenged and ultimately undermined.

His critics also lashed out at him for the latitude given to civil society, a move which they believed weakened a key aspect of Umno’s political leverage. It followed in Umno’s mind that in order to regain lost ground, it was necessary to reassert its ideology with greater strength.

There was nostalgia for Mahathir’s heavy-handed style of leadership and a return to the times when the party cowed many into subservience and submission.The conservatives in Umno yearned for a return to Mahathirism, hoping that it would become a cornerstone of the leadership transition plan. There has been much speculation and punditry on whether a return to the Mahathir era would be good for Malaysia.

Difference between then and now

Let me offer some of my own insight to this debate. The major difference between then and now is this: in most instances, Mahathir was harsh and dictatorial if he believed it was good for the country. But an authoritarian style of government under anyone else would be dictated by the need for self preservation and very little about the country’s interest.

The evidence is all around us. After March 8, (2008) when the prime minister ceased being the home minister, the threats of reprisal have escalated and a climate of fear re-cultivated. The detention of Raja Petra Kamarudin, Teresa Kok and Tan Hoong Cheng exemplify this turn for the worse, this appetite to use the sledgehammer.

The shameful power grab in Perak and wanton disregard for public opinion over how BN wrested control of the silver state make many people shudder at the prospect of a return to the dark days. If that was not depressing enough, we have had to bear witness to the police and the newly-minted Malaysian Anti-Corruption Commission (MACC) displaying their allegiance and support to the BN when all we needed and craved for were honest brokers.

It stands to reason that in the mind of the average Malaysian, having suffered a significant loss last March, Umno is on a rampage to regain what it lost by any method available and the man who is expected to lead it to victory is the man who succeeds Abdullah: Najib (Abdul) Razak.

A prime minister must have the confidence of the majority of the rakyat. In order for this to be the case, his integrity must be beyond question; not only must he be such a person character, he must be seen to be such a person. The office of prime minister is one of great trust, he who holds that office cradles the nation in his palms.

For this to be the case, there cannot be anything in the mind of the greater public that, correctly or otherwise, associates him with matters of criminality, wrongful action, improper conduct or abuses of power. In short, he must be beyond reproach in his dealings both official and private.

Without intending any accusation, it is regrettable that in the collective mind of the rakyat, Najib is not such a person. If a referendum were to be conducted on the subject or if the prime minister was to be elected directly by the rakyat, I do not think Najib would succeed. The reason for this is obvious: the rakyat has doubts, fuelled by the unanswered allegations against him and his unwillingness to confront these allegations.

It is not a mere trifle in the minds of the rakyat that despite a direct challenge from a member of parliament in the august House recently, the deputy prime minister remained silent, not even denying the implicit accusation made against him and demanding that it be repeated outside the chamber in the tried and tested method of refutation employed by parliamentarians throughout the world.

It has not assisted the cause of the incoming prime minister that the MP concerned was suspended for a year on a motion tabled by a fellow minister without the member having been afforded an opportunity to defend his position.

Evidence of SMS text-messages

Consider this. Commissions were paid to an agent for the procurement of submarines through the Defence Ministry, Najib (then) being the defence minister. It is unthinkable that he had no knowledge that the agent was his adviser and aide, Abdul Razak Baginda. The commission paid out was exceedingly large, in excess of RM400 million.

The defence minister was dutybound to direct enquiries to see if there had been any impropriety in the way the contracts were awarded when news of the commission surfaced; after all the price of the submarines would be considerably lower without the need for such commissions.

Taxpayers, you and I, have paid for those submarines at a price that in all probability factored in the commission. Taxpayers are yet to be told of an inquiry let alone the result of such an inquiry.
Consider the Altantuya Shaariibuu affair. A young woman was brutally murdered, her corpse destroyed by explosives.

These explosives are not the usual type of explosives, yet no inquiry was held to determine how they were available to these killers. Those accused of her murder are police officers serving in the Unit Tindakan Khas, a highly specialised unit who amongst other things serve as bodyguards to the prime minister and the deputy prime minister.

Amidst evidence that the accused were employed to protect the PM and the DPM, they were directed to (Abdul) Razak Baginda through the aide of the deputy prime minister. Amongst other things, we have heard of the senior investigating officer admitting that the deputy prime minister was an important witness and yet no statement was taken.

It is not unreasonable to think that this is irregular, more so when evidence of SMS text-messages from the deputy prime minister concerning material matters have surfaced. The text-messages cannot be ignored, proverbially swept under the carpet.

Even if they do not establish - or are not capable of establishing - any culpability on the part of Najib, these issues must be addressed.

The air must be cleared, it is thick with accusations and doubts which can only undermine the office of the prime minister if he were to assume it. The deputy prime minister’s cause has not been aided by the fact that charges were preferred against (Abdul) Razak Baginda only after public outcry, the manner in which the prosecution was conducted and the decision of the High Court acquitting (Abdul) Razak Baginda not having been appealed.

Power grab an unmitigated disaster

The Perak affair was an unmitigated disaster for the nation. It is no secret that Najib led the charge there and is still overseeing matters.

In the minds of Malaysians, Perak is synonymous with the deputy prime minister. They now equate him with the high-handed tactics that were employed to seize power, tactics that included the disappearances of the three crucial assemblypersons and the blockading of the legislative assembly by the police.

In doing so, they equate the DPM with the hijacking of democracy, the only persons saying otherwise being those persons who have associations with Umno. In their minds, no responsible leader would allow for the undermining of the institutions of state and the constitution of this nation.

They ask, rightly so, whether this is the kind of leadership that Malaysians can expect from Najib when he becomes the prime minister.

With all of this, and more, how are we not to feel anxious? How are we to sleep peacefully at night? I know that I cannot. The situation is desperate and the air is pregnant with tension. We need the state of affairs to be resolved in a way that is in the best interests of the nation and the rakyat.

To an extent, this is a matter for the Barisan Nasional. I urge its members to put politics aside and think things through. We all want a better future, a safer and more prosperous life for our children, all of them, a Malaysia where our children can reach for the stars with the certainty that there is nothing to stop them from being the Malaysians they want to be.

Let the king be kingmaker

I do not believe that the Barisan Nasional will do what is necessary. Politics has a tendency of making those who embrace it cynical. The answer lies elsewhere, with His Majesty the Yang di-Pertuan Agong.

In this case, His Majesty plays the role of ‘kingmaker’. The discretion to appoint the prime minister who succeeds Abdullah lies with His Majesty. Though His Majesty is required under the constitution to appoint the person who commands the confidence of the majority of the members of parliament, it is a matter for His Majesty’s judgment.

Never before has such a heavy burden being laid on His Majesty to make a brave and correct choice.

For King and country, I urge His Majesty to take into consideration the prerequisites to appointment and the concerns of the rakyat. There is no constitutional obligation on His Majesty to appoint the president of Umno as the prime minister. There are still well qualified members of parliament from Umno who can be appointed PM to bring us back from the brink.

Malaysia needs someone who the rakyat can throw their weight behind without reservation. Someone they can trust and respect. Someone who has no scandal to distract him and thereby gain respect from the international community.

These are difficult times and be prepared for worst times to visit us. Malaysia needs a leader who will unite the country in the face of the adversity. Divided, we are weak. I am loath to say it, but for the reasons I have set out am compelled to say that Najib will most certainly divide us and in doing so, will nudge us closer to the edge.

Some of you may say that all efforts to promote the national interest are at this stage an exercise in futility. If truth be told, I am tempted to slip into cynical hopelessness too. I am fighting the temptation to give up for one simple reason: Malaysia and all that it represents. This is a blessed country, a country too valuable for us to turn our backs on.

Zaid urges King not to make Najib PM

KUALA LUMPUR, March 18 - Datuk Zaid Ibrahim has made an impassioned plea to the King to not appoint Datuk Seri Najib Razak as prime minister, and instead appoint someone else from Umno "to bring us back from the brink."

The former de facto law minister urged the King to used his judgment to appoint as PM someone who is "beyond reproach in his dealings both official and private," in a scathing attack on his former Cabinet and party colleague.

"A prime minister must have the confidence of the majority of the rakyat…For this to be the case there cannot be anything in the mind of the greater public that, correctly or otherwise, associates him with matters of criminality, wrongful action, improper conduct or abuses of power," he said in a speech to the Rotary Club here today.

Zaid's remarks will certainly put pressure on Najib as he prepares to take power first as Umno president next week before taking over from Datuk Seri Abdullah Badawi as prime minister the following week.

The former minister's comments also come a day after Tun Dr Mahathir Mohamad also piled on the pressure on Najib by saying he did not shine as a deputy prime minister and acknowledging the baggage he carries into the job.

In his speech, Zaid also made reference to what has been described as the kind of baggage that no other Malaysian leader had on entering office.

He has been linked on the internet and by political rivals to the brutal murder of Altantuya Shaariibuu although he has firmly denied involvement and there is no evidence to tie him to the death.

Najib's popularity rating also stands at just 41 per cent, according to a recent poll by the independent Merdeka Centre.

Zaid said that while he did not intend any accusation, he felt that Najib was not beyond reproach in the collective mind of the rakyat.

"The rakyat has doubts, fuelled by the unanswered allegations against him. It is not a mere trifle in the minds of the rakyat that despite a direct challenge from a member of parliament recently, the deputy prime minister remained silent," he said.

Zaid also cited the RM400 million in commissions reportedly paid by the Defence Ministry while Najib was minister for the procurement of submarines, and pointed out that Abdul Razak Baginda, the DPM's friend was an agent in the deal.

The Altantuya murder was also cited by Zaid, who pointed out that there were many unanswered questions which the public deserved to be told about.

He also described the recent power grab in Perak as an unmitigated disaster.

"They (the public) now equate him with the high-handed tactics that were employed to seize power.

"With all of this and more, how are we not to feel anxious? How are we to sleep peacefully at night?"

Zaid said that while the King is required under the Constitution to appoint the person who commands the confidence of the majority of the members of parliament, it is a matter for His Majesty's judgment.

"There is no constitutional obligation on His Majesty to appoint the president of Umno as the prime minister.

"There are still well qualified members of parliament from Umno who can be appointed PM to bring us back from the brink." - The Malaysian Insider

Monday, March 9, 2009

How to judge the judge?


by N. H. Chan

In The Sun newspaper, March 4, 2009, I read on page 1 this alarming report:

“Ipoh High Court grants injunction sought by Datuk Dr Zambry Abdul Kadir and the six State Executive Councillors to stop speaker V. Sivakumar from convening any state assembly sitting.
Court also ruled that Sivakumar’s five lawyers have no legal standing to represent him in the case filed by Zambry to seek a declaration that Sivakumar’s decision to suspend him and his executive council was unconstitutional and unlawful.”

The arrogance of a novice judge

I must say I was taken aback by the astonishing ruling of the High Court judge. The full report is on page 6 of the newspaper. There I find that the judge was Mr Ridwan Ibrahim, a judicial commissioner. He ruled that the lawyers “engaged by Sivakumar had no locus standi to represent him in an application by Perak Mentri Besar Datuk Dr Zambry Abdul Kadir, who is seeking a declaration that Sivakumar’s decision to suspend him and his executive council was unconstitutional and unlawful”.

Sivakumar’s leading lawyer was Mr Tommy Thomas, and I quote from the newspaper of what he said:

“Thomas recounted what happened in chambers at a press conference outside the court.
He said the judge had earlier asked that only one lawyer from each party enter his chambers, so he (Thomas) went in on behalf of Sivakumar, while Zambry was represented by a counsel and the state legal officer.
‘An objection was made against me and my team, saying that we had no locus standi to represent the Speaker’.”

The objection was under section 24 of the Government Proceedings Act:

” … ‘the judge ruled against us saying that we had no locus standi and therefore we cannot defend the Speaker who can only be represented by the state legal adviser’.
. . . when he asked if he couid sit in and hold a watching brief with speaking rights, Ridwan ruled that no speaking rights would be granted but he could hold a watching brief.”

I am appalled at the arrogance of the judge. I am quite sure he is not an expert in constitutional law and even if he were, in a case of such great public importance to the nation, it is wise to listen to the views of the other side. Especially in this case, when eminent counsel Mr Tommy Thomas was available to assist him. The judge could have invited him to submit as an amicus curiae - in Latin it means ‘friend of the court’ and when the phrase is used in a court of law i means ‘one who advises the court in a csae’. I have done that many times even when I was in the Court of Appeal. Judges of far greater eminence than this Judicial Commissioner have often asked lawyers of great experience who are in the court for their valued views. Yet this judge thought he knew everything that he did not require any assistance from one of the top lawyers in the country. Dick Hamilton in his book Foul Bills and Dagger Money wrote, at pages 244, 245:

“It is always easy to criticise judges, and some of them deserve it from time to time; but it is even easier to underestimate the difficulty of their task, and to take their successes for granted. No member of the Bar pretends to understand every branch of the law. … But a High Court Judge has to deal with any sort of case which comes before him.”

In order for the judge to tackle all sorts of cases which come before him, the wise and able judge is always humble enough to ask any of the lawyers in court who is an expert in his field for assistance. Here we have Tommy Thomas who is one of the top lawyers in the country who was only too willing to assist the judge, yet this probationary judge, who thinks he knew more law than some of the most eminent judges who have sat on the bench, refused to hear Mr Thomas.

How you can judge this judge

You cannot judge a judge unless you know the basic law yourself. But you do not have to worry because I shall now provide you with the law applicable so that you are in a position to judge the judge. You may be surprised at your own ability after you have read this. You might think that even a layman, after reading the applicable law, knows what is the right decision to make. And when a judge does not know the correct answer, it makes you wonder how such a thing could have happened.

On section 24 of the Government Proceedings Act 1956

I shall start with section 24 of the Government Proceedings Act 1956. I have highlighted the important words for easier reading. Subsections (1) reads:

“(1) Notwithstanding any written law
(a) in civil proceedings by or against the Federal Government …
(b) in civil proceedings by or against the Government of a State a law officer … authorised by the Legal Adviser of such State … may appear as advocate on behalf of such Government … “

As you can see this subsection is not relevant as it only applies to civil suits brought by or against the State Government.

And subsection (2), which is relevant on the subject of discussion, reads:

“(2) Notwithstanding any written law in civil proceedings to which a public officer is a party -
(a) by virtue of his office; or
(b) in his personal capacity, if the Attorney General certifies in writing that it is in the public interest that such officer should be represented by a legal officer;
a legal officer may appear as advocate on behalf of such officer … “

See also section 2 of the Act which gives the definition of:

” ‘legal officer’ includes a law officer”
” ‘law officer’ means . . . in respect of proceedings by or against the Government of a State or to which a State officer is a party, includes the Legal Adviser of such State”

This subsection only applies to civil suits brought by or against a public officer. In such a case, a public officer may (the word is “may” not “must”) be represented by a legal officer which could include the Legal Adviser of the State. There is, therefore, nothing in section 24(2) of the Government Proceedings Act to suggest that a public officer if he sues or if he is sued must be represented by a legal officer such as the State Legal Officer.

In any case, section 24(2) of the Government Proceedings Act only applies to civil proceedings to which a public officer is a party. Therefore, the question is, does the Speaker of the Legislative Assembly of a State hold office as a member of the public service - if he does then he is a public officer. Article 132, Clause (3) of the Federal Constitution states that:

“(3) The public service shall not be taken to comprise -
(a) …
(b) the office of President, Speaker, Deputy President, Deputy Speaker or member of either House of Parliament or of the Legislative Assembly of a State;

So now you koow that the Speaker and the members of the Legislative Assembly of a State are not part of the public service as they do not hold office as such public officers. Therefore, section 24(2) of the Government Proceedings Act does not apply to them. Now we all know, except the judge because he thought he knew better, that Mr Tommy Thomas could not be prevented to appear for the Speaker Sivakumar. If only he would hear Mr Thomas, instead of barring him from speaking, he would not have made such a grave error.

On the conflict between the Speaker of the Legislative Assembly and the Law

According to newspaper reports the case is an application by Mentri Besar Zambry to the court the decision of the speaker Sivakumar in the legislative assembly to suspend him and his 6 exco members unconstitutional and unlawful. The question is, can the courts decide on the validity of the proceedings in the Legislative Assembly?

The answer is staring right at us here in Federal Constitution. Article 72, Clauses (1) to (3) states:

“(1) The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.

(2) No person shall be liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in proceedings of the Legislative Assembly of any State or of any committee thereof.

(3) No person shall be liable to any proceedings in any court in respect of anything published by or under the authority of the Legislative Assembly of any State.”

So now you know from the Federal Constitution itself that the validity of the suspension of Zambry and his 6 exco members by the Speaker in the State Assembly cannot be questioned in any court.

Lord Denning tried to inquire into a private Act of Parliament on the ground that Parliament was misled by fraud but he failed. The case is Pickin v. British Railways Board [1974] A.C. 765. He recounted this in his book What Next in the Law at page 319:

“A little while ago there was a case where the British Railways Board got a private Act vesting a man’s land in the Board without payment. He alleged that Parliament had been misled by fraud. In the Court of Appeal we held that the judges could inquire into it. But the House of Lords overruled us. They held that no inquiry by the judges could be permitted.”

It is important to remember that the United Kingdom does not have a written constitution. What more when we have a written constitution which says that “the validity of any proceedings in the State Legislative Assembly shall not be questioned in any court”.

From what we have read from the newspapers it seems that there is an injunction against the Speaker. You may also wonder how an injunction can be obtained against the Speaker when our written constitution says that “no person shall be liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in proceedings of the Legislative Assembly of the State”.

In The Family Story, Lord Denning tells us this story, at pages 194, 195:

“I would recall the great case of Ashby v. White 1 Smith’s Leading Cases 253 in 1703. There was a conflict between the House of Commons and the Law. A ‘poor indigent’ man named Mathias Ashby went to the polling booth and claimed a right to vote for two members of Parliament: but the voting officers refused to allow him to vote on the ground that he was no settled inhabitant of the borough. Ashby brought an action for damages. The House of Lords then resolved that Ashby was entitled to bring his action and to recover his damages of £5. The House there not only vindicated the fundamental right of a citizen to vote, but it also established the great principle that wherever a man has a right, he shall have a remedy at law to enforce it. The decision, so clearly a broadening of freedom, was, however, furiously opposed by the House of Commons. They ordered the arrest of the solicitor who acted for Ashby; and they committed to prison five other men simply because they, like Ashby, brought actions against the returning officers. These men applied for a writ of habeas corpus. They had counsel to argue for them. But the House of Commons thereupon took action against the counsel. The Sergeant-at-Arms actually arrested two of the counsel and would also have liked to have taken a third, Mr Nicholas Lechmere, ‘but that he got out of his chamber in the Temple, two pair of stairs high, at the back window, by the help of his sheets and a rope’. The controversy between the two Houses was only resolved because Queen Anne prorogued Parliament and the prisoners were released.”

The above account is not as strange as it seems. It is the common law of England and the common law of England that was in force on 7 April 1956 is embodied into the common law of West Malaysia, and the state of Perak is in West Malaysia, by virtue of section 3(1) of the Civil Law Act 1956.

There is an interesting episode in Lord Denning’s The Family Story about a breach of the privileges of the House of Commons. He wrote, at page 192:

“In the ordinary way there is no conflict between our two great institutions - Parliament and the Courts. But in exceptional cases there has been. … The Houses of Parliament enjoy certain privileges. One of them is freedom of speech. Erskine May says: ‘What is said or done within the walls of Parliament cannot be enquired into in a court of law’.”

At page 193:

“On 8 February 1957 Mr Strause M.P. wrote a letter - on House of Commons paper - to Mr Maudling, the Paymaster-General. He complained of the behaviour of the London Electricity Board. He said that they were disposing of scrap cables at too low a price. He said their conduct was a scandal. Mr Maudling … passed the complaints on to the London Electricity Board. … The Board’s solicitor on 4 March 1957 wrote saying:
Your letter is wholly unsatisfactory and we are instituting proceedings …
That simple solicitor’s letter raised the great constitutional issue. Who was supreme? Parliament or the Courts of Law? Mr Strause said the letter (threatening a writ) was a breach of the priveleges of Parliament, and that the Board and its solicitor were punishable by the House itself. The London Electricity Boardsaid that they were entitled to have recourse to the Courts of Law and that the House of Commons could not stop them.
The issue was referred to the Privy Council. Seven Law Lords sat to hear them. I was one of them. I found myself in a minority of one. . . . They held that the House of Commons could treat the issue of a writ against a Member of Parliament - in respect of a speech or proceeding in Parliament - as a breach of its privileges.”

At page 194:

“So if you read the Report in the Law Reports - re the Parliamentary Privileges Act 1770 [1958] A.C. 331 - you would think that it was a unanimous opinion of all seven,”

Those of you who are lawyers will know that the decision or advice of the Privy Council is given as a single opinion - only the majority view is given.

——————————————————————————–
NH CHAN, who is former Court of Appeal judge, lives in Ipoh.

Saturday, March 7, 2009

Outdoing Abu Gharib

He was tortured continuously for six days, starved, beaten and branded like a cow. We do not treat even animals this way where pain is inflicted purely for the pleasure of it. How could this be carried out in the premises of the police itself?


Khalid Samad
The Malaysian Insider

The second autopsy report carried out on the body of A. Kugan was released on Thursday. It confirms without a shadow of a doubt that he was tortured and died as a result of this torture. The torture sustained by him was mind-boggling and only a sick mind can even begin to understand the reasons why it was done. How anyone can do something as terrible as this to another human being is beyond comprehension.

He was tortured continuously for six days, starved, beaten and branded like a cow. We do not treat even animals this way where pain is inflicted purely for the pleasure of it. How could this be carried out in the premises of the police itself? How could it happen without the knowledge of the other police personnel, especially the officers and the OCPD themselves? Are prisoners or detainees handed over to the interrogators and no supervision is undertaken whatsoever?

I was really upset on reading the report. We can only imagine the pain which Kugan suffered. The way the incident was handled seems to indicate that it is not necessarily an exception to the rule. There may have been other similar cases, and had it not been for the tenacity of Kugan’s family insisting on a second autopsy, this case would have been closed. How many similar cases have gone by unnoticed is anyone’s guess.

The first autopsy report was misleading to say the least. It is quite obvious that the doctor had no personal interest in this case and as such had no reason to hide the facts. Either he was completely incompetent, which is unlikely, or very slip-shod in undertaking his duties. This is also unlikely. The only other possibility is that he was instructed to provide the kind of report which he did. I believe the majority of people following this case are convinced that this is the case.

Similar is the case with the 11 police personnel involved in the incident. I do not believe that they would have done this, in the premises of the police station itself, if they did not believe that they could get away with this. In fact, I cannot conceive of a situation where they would be willing to do this without the consent or instruction from their leaders. The level of torture was such that there was no way for it to be hidden or concealed. It can therefore be safely deduced that the they were not planning to hide anything from their superiors nor did they think they had anything to hide.

This situation is obviously very worrying. The fact that their actions are condoned by the system which also provides for a cover up necessitates the revamping of the police system as a whole. This should start by the resignation of the Inspector-General of Police. It is unacceptable that the IGP can carry on with his job knowing full well that he has completely failed in the carrying out of his duties by ensuring high standards of justice and fair treatment of those detained by his personnel. The “lackadaisical” attitude shown by the IGP when shown the findings of the second autopsy is a clear indication that this is something which is not new.

For the institution of the police to be cleaned up, it requires leaders who have the vision and the desire to see it cleaned. This is obviously not something which the current IGP and the current administration can do. We are, as always, left with the conclusion that the longer this administration stays, the worse will it be for the nation as a whole.

Khalid Samad is MP for Shah Alam. He is also Head of Shah Alam PAS Division and also member of the PAS political bureau which is the most powerful bureau in the party. His website is www.khalidsamad.com

Sunday, March 1, 2009

MACC: Old Wine In A New Bottle

Sunday, 01 March 2009 02:02

we can have the best legal framework, systems and procedures, but if we put crooks in charge, nothing will change. A “bunga taik ayam” by any other name will not smell like a rose.



By TUNKU ABDUL AZIZ, MySinchew

What a waste of public funds! The creation of the Malaysian Anti-Corruption Commission will go down in history as a feeble and pathetic final clutch at the straws by a sitting duck prime minister best remembered for his inexhaustible supply of good intentions but with nothing to show for them. The MACC was hastily conceived against a murky background of a web of duplicity and deceit. It was a desperate attempt at deluding the people of this country and the world anti-corruption community at large that the Abdullah Badawi administration still had a lot of fire in its belly to make corruption a high risk and low return business. The whole process was nothing more that a charade, a sleight of hand that we had come to expect of this government. In the meantime, corruption continues to be in robust good health.

In 1995 my friends and I started to look at corruption in our country seriously and to view with growing unease its debilitating effects on our society. This led incidentally to the formation of Transparency International Malaysia as it has come to be known. We saw the Anti-Corruption Agency for what it really was in operational terms. It was the weakest link in both the “supply and demand sides” of the corruption equation. We saw the ACA as part of the problem of corruption and not, as it should rightly have been, part of the solution. We thought its claim to “independence” was a joke in poor taste. It was as independent as a beached whale.

"They have missed the point deliberately and with a cynicism of Machiavellian proportions. It is frighteningly sinister."

We demanded from day one that the ACA be converted into an independent commission along the lines of the highly professional Independent Commission Against Corruption with a strong and influential oversight civilian committee to keep an eye on the staff who could otherwise be tempted to abuse their wide powers.

After years of insisting that the ACA was independent despite glaring examples to the contrary, the government finally relented just as the Abdullah Badawi administration went into its death throes. Abdullah Badawi woke up all of a sudden to try to put in place the flawed Malaysian Anti-Corruption Commission. He is, he has just told us, happy with the judiciary and the MACC. But then our prime minister is an easy man to please. You will note that for all the rhetoric about an independent commission, the key operating word itself does not appear in the name and title of the new body. I suppose it matters not what name you give it, the creation of the MACC is nothing if not a clumsy attempt at decanting old wine into a new bottle.

As for the much hyped up “Hong Kong model” upon which the new corruption fighting machine is apparently based, the less said about this the better. It is clear for all to see that the Malaysian Anti-Corruption Commission falls far short of the Hong Kong template on at least two counts. The first and most obvious shortcoming is an absence in the current law a provision enabling a MACC officer to call anyone to account for their wealth and lifestyle that stick out like a sore thumb against his known income.

It is not a crime for public servants to be wealthy, but would they please explain how they have acquired their wealth to the satisfaction of the authorities, assuming naturally that the authorities themselves are incorruptible? The absence of this specific provision in the law renders the fight against corruption an exercise in futility. The legions of the corrupt in Malaysian public life know that they cannot be touched. The framers of the law knew what they were doing when they decided to omit this powerful provision both in the 1997 Act as well as the current law. They claim that there is no need for it as there is already in the statute book a provision against money laundering. They have missed the point deliberately and with a cynicism of Machiavellian proportions. It is frighteningly sinister.

The second and equally serious shortcoming is the quality of the commissioners. You cannot by any stretch of the imagination compare them with their highly professional Hong Kong counterparts. I have kept abreast of the excellent work of the Hong Kong Independent Commission Against Corruption from the time when the iconic Bertrand de Speville was its commissioner. The Hong Kong model works because of the quality of the officers employed. They are all of them drawn from the professions, and are well trained to behave and act professionally. Above all, the ICAC is truly independent, set out to be just that from day one.

Now that the MACC has been officially launched, let us hope it will shed its reputation for bias and sloppy approach to its mission, and above all, its officers must resist the great temptation of seeking premature publicity such as the “million flying licenses” of some years ago. Let your professionalism be its own reward, and Datuk Seri Ahmad Said Hamdan, the head of the organisation should learn to keep his counsel and not repeat that most uncalled for and disgraceful act of finding Tan Sri Khalid Ibrahim guilty while his “car and cow” case was still a work in progress.

I wrote this piece before the official launch of the Malaysian Anti-Corruption Commission yesterday, and I am glad that I delayed submitting it to the editors so that I can now have the pleasure of congratulating Datuk Anwar Fazal, a partner in the setting up of Transparency International Malaysia, Tan Sri Megat Najmuddin, and Tan Sri Yong Poh Kon, all strong anti-corruption advocates and my co-workers, on their appointment to the advisory board. They have their work cut out for them, and I wish them well.

As for the MACC, remember this; we can have the best legal framework, systems and procedures, but if we put crooks in charge, nothing will change. A “bunga taik ayam” by any other name will not smell like a rose.