Friday, October 17, 2008

Response to Malik Imtiaz's All The King's Men ...

Every Man A King

"Every man a king. Every man to eat when there is something to eat; all to wear something when there is something to wear. That makes us all sovereign."- Huey P. Long- 1934
1. The problem with this country is that we have nominal and displaced persons on the fringes of mainstream society that try to make a name for themselves by taking pot shots at upright citizens. Malik Imtiaz Sarwar is one such person who hopes to gain some selective notoriety by not only displaying his bias for all to see but has also resorted to personal attacks against Mukhriz Mahathir.

2. In his piece entitled 'All The King's Men..." published by the Malay Mail (14th October 2008) he has stooped to cast negative aspersions against this grassroots leader and newly elected Member of Parliament and acts in a manner that makes one believe that he is an elected official or one whose views are much sought after.

3. The writer's thoughts about whether the judiciary and the wider system of justice are in need of reforms are moot is but his personal opinion. There are many other members of the public, legal practitioners and politicians alike who hold a different view to this subject.

4. Mukhriz Mahathir's opinion as reported in The Sunday Star and referred to by the writer is a practical and realistic assessment of the whole issue. To put it into context in the bigger picture of nation building; the Malaysian judiciary has long been established and put into place and followed before and after the second world war .This system has been severely tested and has gone through trials and tribulations heretofore. This system has yet to crumble.

5. Our judicial system in its trials and tribulations throughout the years has met up with various "incidences" which has created unhappiness, particularly in respect of the 1988 judicial crisis- which the bar council and disgruntled lawyers have unilaterally spun as a crisis. It was actually a wind of change for the better under the prevailing circumstances during the premiership of Tun Dr. Mahathir whom had the unpleasant task and had to accept the unpopularity of disciplining the rebellious judges who had abused their positions thinking that they are all supreme– over and above the law- believing that no action can be taken against them.

6. It is undoubted that the judiciary in this country has carried out its functions in accordance with the laws of the country. We do not encourage Kangaroo courts or vigilante justice. Furthermore, there is no form of anarchy whatsoever in this country.

7. The writer then makes his case that the need for judicial reform is not due to speculative nor political spin but then makes the mistake of resting his ill-informed and biased views on the so-called "conclusions" of the Royal Commission of Enquiry on the VK Lingam video. The writer perhaps is unclear of the fact that the conclusions and recommendations made by the panel of enquiry was merely an opinion notwithstanding the fact that the panel itself were absolutely motivated by bias and a deviant agenda for reasons known only to themselves and to disrepute and smear Tun Dr. Mahathir Mohamad. This is not to mention the fact that the Royal Commission of Enquiry had acted out of their scope of terms of reference and stretched their minds and hands to the very limits to drag the former prime minister into the controversy by mere speculative findings. The writer has further chosen to ignore the fact that Loh Gwo Burne-the man responsible for making the video clip said that "the move to make public the Royal Commission report is politically motivated"..."and that he disagreed that investigations should include Tun. Dr. Mahathir Mohamad-"because he was victimised by the people who surrounded him and tried to influence his decisions." (The Star,17/5/2008).

8. Perhaps the writer maybe interested to know that recently Justice Ian Chin, whilst sitting on the bench before hearing an election petition had made derogatory and callous remarks about Tun Dr. Mahathir as a sitting judge. It is common knowledge that judges should not and must not place themselves in a controversial position and abuse their powers. Strangely, a tribunal was not set up to try Justice Ian Chin for misconduct. Where was the writer then? At court with the King? In the event that Justice Ian Chin had been tried for misconduct; is the writer going to say that this is another judicial crisis? Is this the sort of reform you are looking for?

9. Furthermore, Anwar Ibrahim, has been charged in court for the alleged offence of sodomy, so far, things are going his way and for his counsel and all praise is levied on the presiding sessions judge. Had the situation been in reverse, it would have made a good bet to say that the writer, bar council and opposition parties would have alleged that there is bias and injustice. One cannot blow hot and cold at the same time... The writer should accept the system as it is, as long as everything being equal; it is a fair system.

10. The writer also conveniently forgets that the majority of the members of the bench are appointed from the judicial legal service and this includes His Royal Highness the Sultan of Perak who was then the Lord President of the Federal Court. The so called reforms that are being peddled by the writer have in fact put the judiciary under absolute attack, causing apprehension and putting the Judges and judicial officers in a distressing and uncertain future. The writer and bar council is creating a real judicial crisis now!

11. The writer also fails to look at the practical and realistic side to the issue. To the inexperienced it is indeed forgivable to fall prey to the mere rhetoric of reform. Not that we know exactly what so-called reform is intended other than grand pronouncements as reported in the local broadsheets. To reform and establish a system-it is not something which is done overnight. A lot of care and study has to be taken into account before whatever so-called reforms can be implemented. Perhaps what is required are adjustments that maybe made to the judicial system in terms of discipline, accountability and increased efficiency in the administration of justice as a precursor-before any reform can be looked into. It is better to be with the devil you know than the devil you do not know. For we do not know if these so-called reforms if at all they are reforms, will work for the benefit of not only the judiciary but also the Rakyat and members of the legal profession.

12. It seems to me that the so-called reforms are nothing less than political rhetoric to include the bar council in the process of selection and appointment of judges. The bar council which has for so long been sidelined now seeks to usurp the powers of the executive by cheering on its minions to remove the powers and prerogative of the prime minister and the Rulers in judicial appointments. This stripping down of the functions of the prime minister is supposedly justified based on the sanctity of the model known as trias politica or the separation of powers as propounded by Baron de Montesquieu. This is another fallacy that the writer may or may not truly believe in for in no country in the Commonwealth system is a prime minister precluded from exercising his powers in the appointment of high officials – judges included. An even more extreme example would be to look at the United States – where the President appoints Supreme court judges and where Public Prosecutors stand for elections with those candidates who are in line with current political thought being elected to office.

13. The writer should instead thank his lucky stars that Malaysia has not taken a page from Singapore, when MM Lee Kuan Yew slammed the Singapore Law Society (SLS) and diminished its role. Its past President, Francis Seow was detained under the Internal Security Act in a face-off with the Singapore government. Hitherto, the SLS and practising lawyers hardly make any comments on sensitive issues and refrain from playing politics.

14. If at all something is to be done with regards to the judiciary and as a practising lawyer I would to a certain extent agree with the writer that the standards of judicial incompetence are worrying. The writer whom I believe is also a practising lawyer should very well know that judgements given by judges are subjective, and it could be right or it could be wrong but there are legal avenues as provided for to seek an appropriate remedy by way of an appeal in the higher courts.

15. The writer also seems to rely on Zaid Ibrahim (former de facto law minister) to strengthen his arguments. For the record Zaid Ibrahim is hardly a maverick but a total political failure. He has prior to his appointment as a senator I believe, with the blessings of the outgoing prime minister and the bar council- due to the disastrous election results for the BN in the last election, used this present real judicial crisis to resurrect their political fortunes with the concurrence of the bar council and to delve into history of the 1988 judicial "incidence". This whole saga has not benefited anybody the least except to propagate and popularise Zaid Ibrahim (ex-back door minster). Nobody knows really what reforms he intended to carry out in the first place. In this regard, the writer needs to be reminded that the outgoing PM and Zaid together with the bar council held a dinner in honour of the rebellious judges with the sole purpose to hit back at Tun Dr Mahathir and attempted to humiliate this great statesman. The act of paying compensation to the rebellious judges is an ultra vires act and it involves public money which was paid by the government not only for the dinner but also for the said compensation. No country in the world particularly a Commonwealth member country will resort to such an ultra vires and unlawful act.

16. Overall, it would appear that the writer is displaying his frustrations by condemning the judicial system and playing politics-while desperately trying to project himself by making personal attacks against greater individuals such as Mukhriz Mahathir and Tun Dr. Mahathir Mohamad.

17. Mukhriz Mahathir at least has thrown his fate together with grassroots Umno members and the ordinary citizens of this beloved nation. The Rakyat of all races, class and creed have thrown their support behind him. As far as I am concerned, figuratively speaking-Mukhriz Mahathir treats every single Rakyat and fights for them as if they were a King.

Imran Imtiaz Shah Yacob
Practising Lawyer
Oct 16, 2008

8 comments:

Dhahran Sea said...

Salam Imran,
Excellent piece of rebuttal! You are one of the few from the legal fraternity who dares to go against the tide. The majority, or rather the few "loud-mouthed" members of the legal fraternity, especially those from the bar council, do not seem to be able to break away from the "shackle of salleh abas" mentality and prefer to dwell on the 1988 "incident" rather than move on and start making positive contributions in defending the rights of ordinary citizens of this country.

CicitTS.Lanang said...

Salam Bro,
TQ for your reply to Imtiaz. What is great about this 'liberal Moslem' a product of IIUM(unfortunately)? I am myself a member of The Malaysian Bar but i ve different opinion & view from those who r in control of the Bar.He may continue barking like another lawyer by the name of...who...err...Haris...but who cares!

Garrett said...

Well-written, En. Imran. I, for one, am sick and tired of all these calls for judicial reforms and criticisms of the judges.
Recently, I was drawn into a political discussion where some young pro-opposition punks were berating the judicial system in Malaysia and calling for reforms. When I asked them to specifically tell me what are the reforms they wanted, they got all sheepish and could not answer me. They know nothing about it! It goes to show how much influence the opposition has on the youngsters.

Malik Imtiaz Sarwar said...

Encik Imran,

thank you for having taken the time and effort to write this piece. I was hoping you would be able to contribute a piece to Project Malaysia (www.projectmalaysia.org) which is currently looking at the administration of justice. Your insights into whether reform are needed and, if so, how this reform is to be achieved would help us all better understand the matter. That is the aim of the initiative after all.

By way of clarification, I have nothing personal against Datuk Mukhriz. I have had the pleasure of dealing with him professionally and meeting him socially and, as I said in my article, I think he has much to offer this nation. I had not intention of personally attacking Datuk Mukhriz.

As for bias, I may not have been clear. My views are not based on what it is the Royal Commission concluded only or on Zaid Ibrahim's position. There is a wealth of opinion which points to the need for reform.

I am further not involved with the Bar Council or any of its sub-committees and have not been for some time. I too have my doubts about making the heads of the bar associations members of the proposed commission. In my view, the commission should be independent in the truest sense. I think the UK model is a good one.

I agree with Dharan Sea that we should be looking forward and looking to strengthening the rights of ordinary citizens. My view is that strengthening the judiciary would allow for this, but this is said on the basis that there is a need for such strengthening in the first place. I have publicly stated this to be my position at various forums in which I said we should look to the future. Though I do believe that some measure of reconciliation was needed for us to look to the future, the events of 1988 are relevant for appreciating context.

I hope you will are able to contribute a piece to Project Malaysia. A different viewpoint is always welcome.

Malik Imtiaz Sarwar

Col Roseli said...

Well done Imran. Some people just need to be told off point-blank.

A Voice said...

Imran and Malik

Thanks for the use of this blog to express your opinion. No censorship was imposed on the commentators.

If both you lawyers do not find humour in the cartoons I inserted, I will make no apology. I am excercising my right of free speech.

Personally, I think lawyers and the legal profession are grossly over rated. They are to in love with their limited ability.

Any professional - bankers, engineers, accountants, doctors, roti canai seller [serious and I have example. Although I meant it to insult lawyers too:)], etc - can study law and become lawyers. In short, lawyers can't do stuff other's do.

They can pretend to talk as though they know the suffering of others. But they are by profession heartless for they defend the wrong too.

And they just do not posses sufficient right brain intelliegence to do a simnple dy/dx or the simplest y = mx + c. They could remotely understand Financial Theory Theorem and Gaussian formulas use din Physics. BUt they sure bullshit as though they could.

I am sure Malik is more open to free speech and engaging than some friends.

Many bloggers seemed to be intolerant to differences in opinion.

They think their interpretation of a similar value we agree to (like freedom of the press and free speech) is only suitable and applicable. Others view don't hold any currency.

They can't understand that similar values can be applied and seen differently, depending on the purpose or the lack of purpose.

They scream and swear at other blogs to the point of disclosing private conversations and discussions outside teh blogosphere.

They severe friendship and remove blogs from blogroll (which I don't give a damn if it is mine).

But they never offer or articulate any facts, and analysis of their own.

But they don't seem to be able to listen well when arguing against others' point of view.

... and they think they are the only right!

galadriel said...

Sorry la bro, I'd have to differ.
Dah sampai kena saman or even your life hang in the balance, perhaps only the lawyer could help u, so part lawyers are overrated tu, doesn't make sense.

Lawyers are often called to argue their cases and they find the confidence and guts from there. Just because they all bising, it doesn't mean they have no value.

And yes, they are bound to defend the wrong cos of the principle "innocent until proven guilty". You are far too well-read and well travelled for you to take this stance just because you don't like certain outspoken lawyers in Malaysia.

Having said that, I must agree with you on the inability of fellow bloggers to tolerate dissenting views. Some just block a dissenting view from another blogger.

Others wud remove u from the blogroll. No problem. That's their right. Still others would come to blows and name calling.

But of course some of them might see justice in it too. Some, I was told, are offered money to write in a certain way, but then this I have seen happening in mainstream media too.

The blogosphere, like the world outside, is full of people with different opinions.

I'm commenting right now on your comments and not attempting to dissent Imran's piece.

Hafagud kosher day...heheh

Daniel said...

Both pieces are excellent.

However, from my viewpoint, whoever says there is no need for judicial reform just needs to take a look at Irene Fernandez's case. 12 years, and it's only just being heard at appeal next week.

Aside from that, who hasn't had "fail hilang" or "tak masuk senarai" on their daily court agenda?

To high-flying litigators, perhaps there is no need to experience this. But what of younger lawyers, chambees or legal clerks? What about your clients' cases?

I'm not a lawyer, but i have experienced courts in Malaysia, Singapore and the UK. I know what is efficient is, and what it is not.

Let's talk about access to justice. 'Access to justice' means that i, as a layman, should be able to walk into a registry, tell the clerk i have a claim against someone, and handle the whole situation, at least at the lower court level.

This is the movement worldwide for the courts. Statements of claims or claims forms are readily downloadable online, with easy step by step guides.

In Malaysia, if you walk up to the counter and ask how does one re-seal an order of probate, the clerk will say, "hire a lawyer".

This is not access to justice. And this is why the courts need to be reformed.

Of course, if there is allegations of corruption, then that needs to be weeded out before other things can be dealt with.

Reading "Attracting and Retaining Talent: Flight of the Legal Eagles?" in this July's "Relevan" is very telling.

Isn't it time we just let go and admit that we are less than efficient in some things? That we not only need to improve, but intend to improve?

Or is the reluctance for reform because lawyers would like to tighter controls on access to the court?

My Say