The blame is on you, Hafidz – Aziema Osmond

Here we go again. Yet another unsubtle argument for the suppression of free speech and expression was put forth in Hafidz Baharom’s article, If a riot does happen, I’ll blame the government (The Malay Mail Online, October 2, 2016). It seems that my beloved nation is destined for eternal repression. How could it not be when every time different parts of our citizenry seek only to peacefully exercise their right to speak and assemble per Article 10(1)(a) and (b) of our Constitution, would be supporters of draconian measures emerge to suppress this at all costs. The country was only just jolted by the call of Datuk Zaid Ibrahim for the return of Tun Dr Mahathir style authoritarian rule, and by penning the abovementioned article, Hafidz seems to follow in his footsteps. For a person purportedly known for writing articles in defence of human rights, this boggles the mind. Wonders indeed never end.

Granted, his message may seem rational enough. This is especially since few would disagree that our government has not done a proper job of governing these days. But be not misled, for in reality, few other opinion pieces published in recent times are as insidiously dangerous to the idea of liberal democracy many of us hold dear. Why, one may ask? Because in his article, what Hafidz has essentially argued for is not only suppressing the exercise of free speech but also for state sponsored repression against those who choose to exercise it.

And while he disguises this as misplaced concern for our national security, he ipso facto justifies state sponsored repressive measures as a legitimate response to those who hold views contrarian to his own. This contemptable stand runs counter to the universal ideals enumerated in the Universal Declaration of Human Rights (UDHR) and aspired to by all right thinking citizens in this 21st century. Disagree? Please, as you’ve allowed him to argue his points, allow me to explain.

But first, some contextual background. Before, when the Union of Soviet Socialist Republics (USSR) or otherwise known as the Soviet Union existed, daily life for those within who disagreed with or otherwise did not subscribe to communism, the national ideology of the state, was anything but bearable. There was no democracy, no freedom of religion, and worse of all, no right to one’s own thoughts as well as their expression.

As vividly expressed by George Orwell’s Nineteen Eighty-Four, the omnipresent state was ever watchful over divers own citizens under its rule during its 79 year existence. Controlled by the Communist Party of the Soviet Union (CPSU), the state eavesdropped upon all and sundry for signs of dissent and repressed those who dared question its legitimacy to rule. Joseph Stalin’s rule in particular was renowned for the Great Purge, where thousands of CPSU as well as government officials were indiscriminately interned, harshly interrogated, brutally tortured and arbitrarily executed.

It was no wonder then that those who lived under the oppressive rule of the USSR rejoiced when the regime collapsed nearly 25 years ago. For them, the seemingly unending draconian restrictions against free thought, speech and expression they had to endure for many long decades was finally at an end. Peoples of various nationalities living under the Soviet Union’s tyrannical yoke were finally free to think for themselves, many for the first time in their lives.

In Malaysia, we did not escape decades of authoritarian rule beginning in the early 1970s during the time of Tun Hussien Onn but strengthened during the rule of Tun Mahathir in the 1980s, where similar draconian restrictions against free speech were put in place. Who could forget, for example, the suppression of student marches through the use of the University and University Colleges Act 1971 (UUCA) and the rounding up of various activists, journalists and opposition politicians under the Internal Security Act 1960 (ISA) during the infamous Ops Lalang of 1987?

It was only in 2003 when Tun Dr. Mahathir finally relinquished power, was our constitutional and inherent right to freedom of speech given a new lease of life and was further strengthened, thankfully, by the repeal of Section 27 of the Police Act 1967 (Act 344) which required police permits before free assemblies, meetings or processions could be held nor may pass.

The great French philosopher Voltaire is famously known to have defended to the death the right of all to hold and state views that he profoundly disagreed with. But ironically and contrary to his stand as a proud liberal, rather than abide by the teachings of Voltaire, Hafidz Baharom in his above article makes a volte-face, and instead urges the emulation of the ways of Stalin and his time as leader of the Soviet Union.

While doubtless making clear his profound disagreement with Datuk Jamal Yunos’s Red Shirt movement, he unnervingly goes on to assert that Jamal’s right to organise his own protest is undeserving of the same treatment as Maria Chin’s right to organise the next Bersih assembly, Bersih 5. No, no. To allow this somehow makes Jamal a terrorist, of all things. Mere divergence with another’s point of view is condoned and accepted as justification enough for outrageously false (and not to mention highly defamatory) labelling.

Then, without citing any evidence, he throws a tantrum of riot instigations, confrontations and violence allegedly threatened against another individual. Which individual, one wonders. Could it be Maria Chin as well? Last I heard, he tore up her lawyer’s letter of demand against him and threw the shredded pieces into a toilet bowl. While this doesn’t exactly win any awards for prudent social conduct, it is still part of his right to express himself. Rude, probably yes but hardly terrorist behaviour, any reasonable person would agree. To claim otherwise is downright laughable.

But Hafidz has claimed otherwise, and he isn’t laughing. Judging by the tone of his article, he is dead serious that our government must double down on Jamal by repressing the actions of a so-called “racist hooligan” and bring about, in all haste, a complete halt to the activities of his blithely defined “terror movement”. Plainly, his view is that violence against Maria and Bersih 5 ought to be condemned, but insulting and labelling Jamal and his Red Shirts by nefarious terms with no basis in reality, as well as forcibly preventing their assembly must be allowed. No justification is offered by him for the different standards applied.

He also beseeches Umno not to emulate the German National Socialist (Nazi) but become a CPSU clone instead by taking appropriate harsh and draconian action to prevent Jamal’s exercise of his free speech and assembly. Umno President and Prime Minister Najib Abdul Razak and Umno Secretary-General and Federal Territories Minister Tengku Adnan Tengku Mansor should both strip Jamal of all his party posts and expel him from Umno at Hafidz’s behest. Better yet, maybe they should take a leaf out of Stalin’s book, and just purge him as was done to Stalin’s own police official, Nikolai Yezhov. For good measure, they should also make him an example by having him and his Red Shirts all thrown into a Soviet style gulag. This would be extremely bad for our human rights and democracy, but never mind. By Hafidz’s logic, those who think differently don’t get to have rights. This coming from a supposed Malaysian liberal. What a sorry state of affairs for our democracy.

Hafidz, you are perfectly entitled to your position that Bersih’s aims are legitimate and are limited to demanding free and fair elections, even if many others do not share this view. What you do not have the privilege of, however, is to demand our government take away Jamal’s right to disagree with and yes, organise a protest against Bersih in deference to his own view. It’s called freedom of speech and assembly, Hafidz, and is present within all thriving democracies. It is also enshrined in our Constitution and this document called the Universal Declaration of Human Rights, which applies to all, regardless if they are aligned with your view or not.

Citing an instance of past standoff where Jamal ripped away the flag of Bersih doesn’t justify your call for repression either, unless you mean for the government to respond by ripping apart Jamal himself in an inquisition style torture chamber. And neither does asking aloud how Jamal can be “left unhindered” to protest against the upcoming Bersih 5 rally, by the way. You say that he stops a democratic agenda from progressing, failing to realise that stopping him is in effect, stopping not only the progress of a democratic agenda, but the progress of democracy itself.

You also say that if a riot happens, you will blame the government and hold all the parties within it responsible. But I already hold you responsible for your call for our government to repress Jamal on account of mere disagreement with his exercise of free speech. Congratulations are in order, for by giving the government ideas on how it should repress and opress, you have made a huge contribution towards the slow ebbing away of our hard won but already precarious state of human rights. If the government decides to roll back the significant progress made in this arena especially in recent years, the blame, I’m afraid, is on you.

Education should be based on our Constitution – Faidhur Rahman

Wan Saiful Wan Jan’s article, “Let’s have more Chinese schools” (The Malay Mail Online, September 22, 2016) seemed to me rather anomalous. Responding to another article appearing in Sin Chew Daily, “Chinese schools a stumbling block to national unity?” which as he said, argued that Chinese schools are not a stumbling block to unity, he made some odd observations and thus derived faulty conclusions as a result.

He started by saying that the Sin Chew Daily article is defensive in its tone. I agree with this. The main argument of that article is actually a rehash of a tired claim usually put forth by Chinese language educationists who insist that teaching and learning in Mandarin does not hinder national unity and even somehow strengthens it.

But the writer seems to have overlooked simple logic that would cause one to ask, how can the use and promotion of Mandarin, a language the vast majority of the Malaysian population, including many of those of Chinese origin, do not understand, have no adverse consequences for unity? If a section of our population routinely speaks and writes in a language others do not, then how is togetherness achieved?

Surely the writer must also be aware that Mandarin is not even the native tongue of most Chinese in Malaysia, and its promotion at the expense of other Chinese languages such as Hokkien and Cantonese has caused considerable intra-ethnic tension between Chinese in countries without a native Mandarin speaking population, such as Singapore, Hong Kong, Taiwan and even here in Malaysia. If even the Chinese can disagree amongst themselves as to the status of Mandarin, what more when the language is used in an environment where other ethnicities are present?

It should also be pointed out both to the writer and others, that while almost every Malaysian understands the Malay and English languages, others, including Mandarin, are only understood by a minority of the population. It is not difficult to infer that this tends towards misunderstanding and division between those who speak Mandarin and those who do not, as those who do not would be handicapped by their inability to comprehend what is being communicated. This is only natural.

One may argue that those who don’t understand a language used by others should endeavour to learn it themselves, but this ultimately is an individual’s choice. Between having so little time and so many languages to learn, for practical reasons, short of knowing Malay which is our national language, as well as English as the world’s most dominant international language, there really shouldn’t be any expectation on one to learn yet other languages, although this pursuit should be encouraged.

What particularly struck me as odd about the article by the writer is the crux thereof, namely, his argument that instead of favouring Mandarin on the basis of Chinese culture and its benefits (why shouldn’t they? They are after all, Chinese and wish to preserve their culture) they should change their strategy and make the debate a national one centred on “superior quality education that is demanded and chosen by the parents regardless of race and religion,” and that more Chinese schools should be set up since “that is what the rakyat wants,”

Most people would agree that Chinese schools don’t have a monopoly on what he has termed “superior quality education”. Nor are they the preferred choice of Malaysian parents, the vast majority of whom still send their children to national schools. The writer also failed to substantiate his contentious claim that the rakyat in general want more Chinese schools to be built. Statements of fact should be proved, not merely asserted.

But beyond this, while he has provided some contextual background to his abovementioned argument by reference to the various education reports and policies issued in our country over the years (such as the National Education Philosophy) as well as stating our laws that put the same into practice (such as the Education Act 1996), he has rather dubiously omitted to mention what our supreme law, the Federal Constitution has to say about the subject matter of his article.

Article 152(1) of our Constitution states clearly and unequivocally, that our national language is the Malay language. This of course is subject to the proviso that no person is to be prohibited from teaching or learning any other language. But this does not confer on any person the right to schools or other educational institutions that use a language other than Malay as its medium of instruction, as held in the case of Merdeka University v Government of Malaysia, since teaching or learning other such languages does not include the right to teach or learn in them. In short, while teaching and learning Mandarin itself is protected, teaching and learning in Mandarin is not. This is a subtle but important difference, and notice must be taken of the same.

Further, by virtue of the same precedent, institutions of the public sector, being public authorities, are bound to use solely the national language, i.e. Malay, for all official purposes. This render vernacular schools, including those using Mandarin, unconstitutional to the extent they are state owned and/or publically funded. The Education Act 1996, to the extent that it provides for the possibility of vernacular schools, is thus similarly unconstitutional. Even the 1956 Razak Report, which Wan Saiful says is a compromise between the Barnes and Fenn-Wu reports, envisaged doing away with all vernacular schools at some point.

So why is the writer proposing a solution that is not sanctioned by, and even contravenes, our highest law? Is not our Constitution, by virtue of Article 4(1) thereof, our grundnorm and our apicem lex? And does not our national philosophy, Rukunegara, recited in schools every week precisely to foster national unity, contain Keluruhan Perlembagaan or supremacy of the Constitution as one of its principles?

The writer also made yet another suggestion in his article that flies in the face of our Constitution. This is that the Government should question the existence of Islamic schools and we should somehow be worried about their mono-ethnicity. Again, if he had bothered to peruse our supreme law, particularly Part II thereof which concerns fundamental liberties (i.e. human rights) he would have come across Article 12(2) which upholds the right of every religious group to establish and maintain schools for educating children in their own religions, and this is not limited to Islamic schools only, but cover other faith based schools, such as missionary schools. Islamic schools in particular, by virtue of the same Article, are allowed to receive state funding. This is in no doubt due to the position of Islam as the religion of the state as provided for in Article 3(1). As such, yet again, the question must be asked of him as to why he is encouraging the breach of a sacred human right, no less, and one which is protected by our Constitution?

The writer is right, however, in his claim that our education system has always been subject to the prevailing political sentiment of the day. This is the primary reason why the abolition of Chinese and vernacular schools, long overdue, has yet to take place now despite public support for such a move.

Rather than advocating moves that clearly contravene our Constitution, what he should have done was to make clear, both to his friend Mr Tan Yew Sing of the Malaysia China Chamber of Commerce as well as the writer of that Sin Chew Daily article, that while Chinese language and culture can be preserved in tandem with the promotion of greater understanding between peoples of various races and religions, the existence of Chinese schools, as schools that fail to use the national language as their medium of instruction, in reality undermine our unity by fostering an environment of incomprehension and encouraging misunderstandings in communication. They are also unconstitutional. To desire national unity, therefore, is to see to their abolition.

  • Faidhur Rahman Abdul Hadi is a member of YP
  • First published by Merdeka-Online and Tanjak on 23 September 2016 and 24 September 2016 respectively

Why infesting prison cells with vermin is clearly illegal and unconstitutional — YP

The Young Professionals (YP) express their disgust with the suggestion by the former Court of Appeal judge, Datuk Mohd Noor Abdullah supported by Deputy Minister for Home Affairs Datuk Nur Jazlan Mohamed that prisons be infested with all manner of disease bearing vermin such as mosquitoes, rats and cockroaches in order to more effectively deter crime. While YP does agree that general conditions at prisons, lock ups and other detention centres must be rendered alluring or inviting in any way given their purpose and use as places for reflection, reform and rehabilitation of inmates, such places must nonetheless be maintained in accordance with applicable international standards, and the suggestion of the former judge and deputy minister that they deliberately be made unbearable for inmates is simply appalling to say the least.

Such a move, other than inhumane for obvious reasons, are clearly illegal under the law, not least the Prison Regulations 2000 made under the Prison Act 1995, Regulation 59 of which requires that prisons be kept clean, and Regulation 55 requiring prisoners be treated with kindness and humanity. Regulation 20 of the 2000 Regulations even provide for any prisoner found to have any infectious or contagious disease or infested with vermin to be reported to a medical officer who shall take steps to treat the said prisoner as well as take preventive measures to contain any spread thereof to other inmates.

There is also section 270 of the Penal Code which imposes a jail term of up to two year and fine for those who deliberately spread the infection of any disease dangerous to life and section 278 of the same Code which imposes a fine of up to one thousand ringgit for anyone who pollute the atmosphere in any given place so as to make it noxious to persons in the surrounding vicinity. Any person who does what is advocated by the former judge and deputy minister above would certainly be guilty of committing these crimes.

Implementation of the suggestion would also amount to a contravention of the Prevention and Control of Infectious Diseases Act 1988, which, as its name suggests, is meant to prevent the spread of diseases and control them when they occur. Under section 10 of the Act, every occupant of a building infested with or anyone who keeps company with a person suspected of having contracted an infectious disease is required to be reported to the relevant authorities, failing which an offence is committed. There is also section 13 of the Act which criminalises the distribution of any infected or contaminated rodent the breach of which is punishable by up to two years jail and a fine.

The proposed measure is also quite plainly against internationally recognised human rights standards. Article 5 of the Basic Principles for the Treatment of Prisoners, adopted by the UN General Assembly on 14 December 1990, provides that, save for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights (UDHR). These include the right to be treated with dignity (Article 1), the right to life (Article 3), the prohibition of cruel, inhuman or degrading treatment or punishment (Article 5) and recognition of them as persons before the law (Article 6).

The principles contained within UDHR are made applicable within Malaysia by a judicial precedent, namely the case of Suzana Mat Aris v DSP Ishak Hussain and Others [2011] 1 MLJ 107, a case which, incidentally, concerns standards to be applied in the treatment of prisoners in Malaysia. In that case it was held that the deprivation of prompt medical treatment for an inmate was to subject the person to torture, cruel, inhuman and degrading treatment by default, and was in breach of the protections afforded by the UDHR. If even the omission to provide a detained inmate with medical attention quickly enough is sufficient to constitute such treatment, imagine if this suggestion of the ex-judge and deputy minister were to be implemented, which would assuredly result in an outbreak of similar cases such as this one.

Lastly there is also our own constitutional protection against violations of human rights. Article 5(1) states that no person can be deprived of his life save in accordance with law, and the right to life is wide and all-embracing, including livelihood and quality of life, as stated in the precedents of Tan Tek Seng v Educational Services Commission and Another [1996] 1 MLJ 261 and Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301. There is also Article 7(2) which prohibits the imposition of double jeopardy, namely the punishment of any person for a convicted offence more than once. Any move to implement the suggestion of the former judge and deputy minister, thus, would be against all the above stated human rights protections afforded to prisoners and thus, unconstitutional.

YP fervently hopes that the above enumeration of the law as well as human rights principles and constitutional provisions applicable will contribute towards the former judge and deputy minister reconsidering their dreadful suggestion, and apologise in respect thereof, as well as deter those who think in similar terms.

Minister’s decision on FFM28 categories unconstitutional, denigrates the national language – YP

The Young Professionals (YP) decry the decision of the Communications and Multimedia Minister Datuk Seri Dr Salleh Said Keruak to reverse the hitherto constitutionally sound practice of the National Film Development Corporation Malaysia (FINAS) of having awards based on Best Picture for Malay language films and create a separate category for non-Malay language films, name the Best Picture (Non-Bahasa Malaysia) category for the upcoming 28th Festival Filem Malaysia (FFM) awards this September.

YP understands that the Minister has announced today that these categories will be effectively annulled by the opening of the Best Picture award to all locally-made films regardless of language and to placate national language supporters, introduce a separate category termed Best Film in the National Language, placing films made in the Malay language into a specially designated category, thus treating the language as if it is a foreign one, similar to the Academy Awards’ Best Foreign Language Film category, which is the only category of the Oscars open to non-English language films. (Communications minister ends FFM debate, says Best Picture now open to all, The Malay Mail Online, August 10, 2016).

To be clear, the Minister’s decision in no way “ends” the debate as it is clearly against both the letter as well as the spirit of our Federal Constitution, Article 152 of which clearly designates Malay, or Bahasa Melayu, as the sole national language of our nation. Per our previous press release on August 7, 2016, we have expressed the view, which we stand by, that per the National Language Act 1963/67 and the 1982 legal precedent of Merdeka University v Government of Malaysia, the functions of all governmental and statutory bodies, including FINAS, is to conduct all its affairs in and promote the use of the national language. The Minister’s decision is a marked departure from this legally mandated norm and is thus unconstitutional. It also clearly denigrates the position of the national language as a common medium of unity and for the use of all Malaysians, without regard to race or religion.

Although the Minister has said that he has taken into account the views and suggestions from all parties such as film industry players and members of the public, YP reminds this Minister that his decision should not be guided by the general wishes of these quarters only, but must always, as any executive decision must be, based on and in conformity with our supreme law and grundnorm. By deciding against the previously accepted norm, he has thus gone against this grundnorm.

The Minister’s decision is one that must be roundly and soundly condemned in the strongest terms by all Malaysians who uphold our primary document as the source of all legal, as well as legitimate, authority. YP accordingly strongly and unreservedly condemns the Minister’s decision, and urges its immediate reversal.

The previous policy of limiting awards for Best Picture for movies made exclusively in the national language while recognising non-national language local films in a separate category was already correct, and so it must remain. Whatever opposition towards such categorisation should have been met with a firm, uncompromising stand in favour of upholding the exalted status of the Malay language as our national language. Instead, there has been irresponsible capitulation on the part of the Government. This does not bode well for our future as a unified nation based on a common language.

YP also supports the position of the leading animation maker Burhamuddin Md Radzi, managing director of Les’ Copaque Production’s highly acclaimed and popular Upin & Ipin, incidentally also produced in the national language, affirming support for the previous FFM28 categorisation and his urging of youths not to neglect the critical role our national language plays in unifying the nation. (‘Upin & Ipin’ producer: Vote for new government if you don’t like Bahasa Malaysia film policy, The Malay Mail Online, August 10, 2016)

YP also lauds as spot on drama director Ellie Suriaty Omar’s claim that opposition towards the categorisation reflects, more than anything else, upon those responsible for such opposition, and that their bad faith and motives are out of sync with the widespread use of the national language in our courts, schools, governmental agencies and exams. We agree with her view that this whole episode appears to be an attempt at subversion. As such, we urge all Malaysians to reject this attempt, by writing to the Minister and demanding his decision in respect of this matter be reversed soonest, failing which, it is, in our view, incumbent upon Malaysians to boycott the upcoming FF28 scheduled for this September and explore all other options of making their opposition thereto known, including by the holding of public rallies and other open expressions of discontent sanctioned by our other laws in force.

Keep calm and uphold the national language in making our films — YP

The Young Professionals (YP) are perturbed and saddened to learn about the recent controversy following the decision of the National Film Development Corporation Malaysia (Finas) to segregate films into Bahasa Malaysia and non-Bahasa Malaysia categories at this year’s 28th Malaysian Film Festival (FFM28) together with the Malaysian Film Producers Association (PFM). We understand that local cinematographer Mohd Noor Kassim has withdrawn his participation in the event, citing racism as a reason for the same. He has further pledged to return his trophies won at previous Final film festivals, it seems.

Meanwhile, local actor Afdlin Shauki has informed the public via his Instagram account that he will be joining the boycott, backed by corporate figures such as CIMB Chairman Datuk Seri Nazir Razak, AirAsia Chief Executive Officer Tan Sri Tony Fernandes and Datuk Jurey Latiff Rosli of the Association of Malaysian Filmmakers (Gafim).

As rightly pointed out by FFM28 chief jurist Nancie Foo (who, by the way, is non-Malay), Bahasa Malaysia (or rather, Bahasa Melayu, since this is the term used in our laws) is our national language per Article 152 of the Federal Constitution. It cannot be stressed enough that legally, use thereof is compulsory by all public bodies for official purposes, i.e. anything and everything done by the Government and all its branches (executive, legislative and judicial) and its ministries, agencies, offices as well as any statutory bodies, in connection with and in pursuance of the purposes of such bodies, for example in areas such as law and education. This is further reinforced by the National Language Act 1963/67.

Since Finas is a statutory body established by the Perbadanan Kemajuan Filem Nasional Malaysia Act 1981, it is legally obligated to conduct all its business in the national language, such language being the Malay language. This is clear from the implications of the 1982 precedent of Merdeka University Berhad v Government of Malaysia. In that case, Merdeka University’s application to set up a higher education institution using Chinese as the medium of instruction was rejected as, although Merdeka University was a private corporation, the institution it desired to set up would exist by virtue of and subject to the Universities and University Colleges Act 1971, and thus a public body for an official purpose.

It was held that all public bodies for official purposes must use the national language in their organisation. Finas is no different, being a statutory body established under the abovementioned 1981 Act. Thus, YP considers that, all said and done, Finas, by promoting the Malay language via the language segregation of films nominated at its FFM28 event, is, in the eyes of the law, merely discharging its legal obligations under the Constitution.

Challenging Finas in this discharge, in our view, amounts to challenging the position of the Malay language as our national language per the Constitution, and is thus caught by section 3(1)(f) of the Sedition Act 1948 as to what amounts to sedition. YP therefore strongly urges all parties who oppose Finas’ move with regard to promoting the Malay language to cease doing so, or risk being on the wrong side of the law.

This aside, it dismays us that after more than 60 years of independence, various quarters still not only fail to understand the exalted position of the Malay language as our national language, and indeed, our unifying language without regard to race or religion, but see fit to question the position of the same.

Mohd Noor Kassim postulates that in boycotting Finas’ film festival and returning his previously won trophies, he is able to send a message to the national film body that “racism” should not be tolerated in our local film industry. Clearly he fails to understand the basic meaning of the word racism. Racism, in its ordinary sense, is defined as seeing other races as inferior to one’s own. This is hardly the case with the segregation of films according to language, which has nothing whatsoever to do with race. Further, accusing anyone or anything as being racist is by its very definition, a serious matter. Allegations of racism should not be made on a whim, for if false, can clearly amount to defamation on the part of the one accused of being racist.

The Malay language, being the national language, is not for the exclusive use of those of Malay ethnicity, any more than the English language is with regard to the British. As English unites us internationally amongst the community of nations, the Malay language unites us as nationally as Malaysians. It is often said that while not every Malaysian understands English, Chinese, Tamil or other vernacular languages, every Malaysian understands Malay.

Further, it must be borne in mind that P. Ramlee’s famous Malay language films of yore, were produced by Ranme Shaw, who was non-Malay. Malay Film Productions Ltd, under which P. Ramlee directed and stared in most of his movies, was a wholly owned subsidiary of the Shaw Brothers, who are internationally known for their prominent role in the development of Chinese cinema, both back then as well as today. Most, if not all, of the movies and all associated intellectual property rights connected with his films, are still owned by the Shaw Brothers, who are now based in Singapore.

In theory, were any of P. Ramlee’s classics more current and they were based in Malaysia instead of Singapore, they would be able to submit such films as entries in FFM28 and these would be within the main category of Best Picture reserved for national language films as the categorisation is based on the language of the film, not the race of its producer.

Likewise, Malays, should they desire, are free to make movies that are not in the Malay language and these doubtless would go under the Best Picture (Non-Bahasa Malaysia) category, so Mohd Noor Kassim’s claim that the categorisation leads to racial polarisation and “Malays unable to compete with non-Malays” and Afdlin Shauki’s assertion that it promoted more “segregation” are ludicrous and without any basis whatsoever. It is, as Nancie Foo rightly pointed out, racialisation, no less.

Categorisation of films according to language is also by no means exclusive to Finas. The Academy Awards, better known as the Oscars, which are awarded by Finas’ American counterpart, the Academy of Motion Picture Arts and Sciences (AMPAS) only accepts American movies in the English language for all its categories, with only one category reserved for non-English films, namely the Academy Award for Best Foreign Language Film. This is in spite of the US not having designated any language, even English, as its national language within its Constitution or any other of its laws.

We therefore urge all right thinking Malaysians, both Malay and non-Malay alike, to remain calm, reaffirm their shared national identity and say no to the racialisation shown by the likes of Mohd Noor Kassim, Afdlin Shauki, and others by rejecting their call for the boycott of FFM28. Malaysians will do this best by collectively demanding that they end their actions and apologise to Finas and all others affected by the whole episode, for which they have only themselves to blame. We also urge the reaffirmation of our Federal Constitution and its provisions, particularly Article 152 on the Malay language as the national language and our language of unity without regard for religion or race.

We understand that the Communications and Multimedia Minister Datuk Seri Salleh Said Keruak has said that he will look into the matter. YP believes there is no need for him to do so. The issue must be resolved in favour of the Malay language’s continued status as the main language for all Malaysians per the spirit of our Constitution, and we are confident that Finas, despite being challenged over the categorisation of films at the FFM28, is able to stand its ground on this and that Malaysia as a nation will be able to see through the hollow claims of those mounting such a challenge.

Lamenting misrepresentation of the NSC Act — Faidhur Rahman

It saddens me that although the National Security Council Act 2016 (“NSC Act”) has been duly passed, gazetted and came into force last 1 August, it continues to receive flak from various quarters, local as well as international. The former Opposition leader’s filing of an originating summons to declare the NSC Act unconstitutional struck me as particularly bizarre (Anwar files suit to declare NSC Act ‘unconstitutional’, stop council, Malay Mail Online, August 3, 2016).

While I have no comment on the main thrust of that application, i.e. the contention that Article 66(4) of the Constitution is unconstitutional, I note that the same Malay Mail Online report quoted several other PKR lawmakers including Batu MP Chua Tian Chang, Subang MP R. Sivarasa and Padang Serai MP N. Surendran as saying that it was ‘an inevitability that the law would be used, as there was no reason to enact a piece of legislation if there was no intention to use it.’

Contrary to their claim, there are laws on the statute book that have never been used. The Public Order (Preservation) Act 1958 (POPA), for example, which is, as I had pointed out in an earlier article, very much the same as the NSC Act in that it too, allows for the proclamation within any area a state of danger to public order much like the declaration of a security area under the NSC Act. But yet I can find no instances in which POPA has ever been used in all its 68 years (and counting) in force.

Security areas were also able to be declared under the repealed Internal Security Act 1960 (ISA). But while they were certainly declared, no party appears to have ever objected to them. The only concern ISA detractors ever had was detention without trial under its provisions. They seemed content with all the other parts of the now repealed law, including declarations on security sectors.

Many quarters have expressed the concern that this kind of power shouldn’t be in the hands of the Prime Minister as, according to one Member of Parliament, N. Surendran, there is a reason why only the King has the power to declare security zones under Article 150 of the Constitution or the repealed ISA, and it is ostensibly to prevent abuse of executive powers and safeguard fundamental liberties (MP: There’s a reason why only Agong should have power to declare security zones, Malay Mail Online, July 28, 2016).

This kind of reading of the law clearly departs from the clear wording of Article 40(1) of the Constitution, which provides that in the exercise of his functions under the Constitution or federal law (and this includes the repealed ISA and Article 150 of the Constitution), the Yang di-Pertuan Agong shall act in accordance with the Cabinet or of a Minister acting under the general authority of the Cabinet, except as provided by the Constitution. This exception concerns only matters relating to the appointment of the Prime Minister in Article 43 of the Constitution and incidental matters, no more, and certainly does not involve any declaration of the sort envisaged by the repealed ISA or Article 150. So any exercise of power purported to have been done pursuant to the ISA or Article 150 would have, in actuality, been effectively of the Cabinet’s doing.

Further, were the MP to be correct, then surely the provisions of POPA must be worse, for unlike that of the NSC Act it is not the Prime Minister who makes a proclamation under POPA, but the Minister for Home Affairs. And unlike the Prime Minister, who must consult the National Security Council, this Minister has sole discretion under subsection 3(1) of POPA. Under subsection 3(6), this power can even be delegated further downwards to any Menteri Besar or Chief Minister of a State!

All this and more, including explicit allowing of the use of lethal weapons to disperse assemblies (as contained in subsection 5(2)) contained in an Act of Parliament enacted on 5 December 1958, just over a year after our Federal Constitution came into force on 31 August 1957. Are the present PKR lawmakers now saying that lawmakers of the time (which included our forefathers such as Tunku Abdul Rahman, Tun Tan Cheng Lock and Tun Sambathan, amongst others) clearly did not understand the Constitution nor its provisions, even though the same had been newly enacted back then? To suppose so would be absurd indeed, and would be a thoroughly contemptable questioning of their collective wisdom.

Detractors of the NSC Act should really ask themselves this question: If I care so much about the liberties of others, and this is the reason why I oppose the NSC Act, then why wasn’t I aware of or opposed to a fundamentally similar law that has been in existence for the past 68 years? Also, why am I concerned about a concept (declaration of security areas) that existed and was used under a previous law (the ISA) without objecting to the same?

The answer would seem to be in that these sort aren’t particularly concerned whether the people enjoy liberty after all, hence the misrepresentation of the NSC Act by them. Once again, pure partisan politics, and not genuine concern for the rakyat, is at play, and as usual, the rakyat has fallen victim to these politicians.

These unscrupulous politicians, as well as their allies, in particular those who sit on the executive committees of certain statutory bodies supposedly committed to human rights and impartial championing of justice without fear nor favour, but at a time when the people need clarification on the NSC Act provisions and similar related laws, choose to maintain a deafening silence in relation thereto.

Our response to the Bar Council’s NYLC – YP

The Young Professionals (YP) refer to the response of the Bar Council National Young Lawyers Committee (NYLC) chairman Khaizan Sharizad Ab Razak published by the Malay Mail Online on July 25, 2016 to Kee Mohd Thariq’s article, Steven Thiru shouldn’t pretend that he cares about young lawyers (Malay Mail Online, July 19, 2016) on the pending amendments to the Legal Profession Act 1976 (“LPA”) to be tabled before Parliament in October.

First of all, it cannot be stressed enough that the proposed amendments to the LPA in current form are mere proposals with nothing yet set in stone. It may yet be the case that the amendments will undergo further changes, some or all of which might eventually be acceptable to the Bar Council and NYLC alike. Given this fact, NYLC’s hysterics over the article by our member, Kee Mohd Thariq, as can be clearly gleaned from the tone of their response, is rather overdramatic. We urge the NYLC to argue their position in a dispassionate manner befitting the dignity of the Malaysian Bar, rather than resorting to playing up imaginary fears.

Second, the article in itself, howsoever read, can in no way come close to being a personal attack on the Malaysian Bar President as the NYLC puts it. It is in fact an honest appraisal of the President’s failings in respect of the legal profession, particularly with respect to young lawyers. We lambast the NYLC for the baseless allegation, which we believe to be unwarranted.

Thirdly, as Kee Mohd Thariq is a member of YP and wrote the article in that capacity, YP believes that it is incumbent upon ourselves to respond on his behalf to the allegations made in the NYLC response, which we, to borrow the expression used therein, are similarly constrained to believe border on misinformation, and thus have similar adverse implications for the wider public. Thus, the following paragraphs constitute our rebuttal to NYLC’s response on a point by point basis, and where necessary, we have elaborated further on additional issues of interest mentioned within Kee’s article which the NYLC has failed to respond to:-

  1. Bar’s partisan stand on issues of the day

The view that the Malaysian Bar dabbles in partisan politics are far from speculative or a mere empty claim as implied by the NYLC, but has been proven in recent times by the occurrence of events such as last year’s infamous Press Release made by the former Bar President, Mr. Christopher Leong, in which he alleged “persecution” of Datuk Seri Anwar Ibrahim after his conviction and sentence for sodomy was affirmed by the Federal Court at the time, a statement which, admittedly, was issued before the grounds of judgement of the said court was even available to be read by the public at large, including the Bar.

Such conduct clearly impugned upon the competency of the Malaysian Courts to adjudicate matters and brought the administration of law and justice in Malaysia into dispute. Despite the huge implications surrounding this huge error on Mr. Leong’s part, regrettably, neither the former Bar President nor the Bar Council apologised despite more than 100 members of the Bar urging them to collectively do so, and they continue to refuse to do this. This particularly manifest action of the Bar Council indicating clear partisanship on its part is thoroughly unbecoming, unprofessional and is the source of continued embarrassment for members of the Bar who believe in impartiality, decency, credibility, proper decorum and standards of conduct. It has become a black mark on the standing of the legal profession in the eyes of the Malaysian public.

There is also the highly unprofessional conduct of the current Bar President, Mr. Steven Thiru in his response to two well-known corruption investigations (one of which has entered the prosecution stage) affecting both sides of the political fence. Vide three Press Releases dated 8 July 2015, 22 March 2016 and 11 July 2016 respectively, Mr. Steven has essentially framed two different standards of accountability for politicians holding public office depending essentially on which side of the fence they stand.

While Datuk Seri Najib Abdul Razak, our Prime Minister, must take an immediate leave of absence without any preconditions pending the completion of investigations into the alleged improprieties surrounding 1MDB, the Bar Council has seen fit to opine that the Chief Minister of Penang state, Lim Guan Eng, not only need not have done so in the absence of any “strict legal requirement” but is now even totally absolved of even any moral obligation to do so as the prosecution stage has commenced, never mind that there is no conviction or acquittal yet! Double standards indeed.

Although we believe that everyone is entitled to their own personal views on political matters, such views should not be projected unto the Malaysian Bar. The Bar is a collective of many different minds and personalities and its President should know better than to use his position as a platform to air his own personal views.

Many members of the Bar as well as those of the wider public at large are aware of these occurrences, as well as many more on the part of the Bar Council, and this is what fuels the perception on the partisan leanings of the Bar, and certainly not “the continued allegations of those such as Mr Kee,” This kind of blatant partisan conduct on display by the Bar is certainly not sanctioned by our Constitution, and for the NYLC to make an empty reference thereto and simply dismiss this thoroughly valid and substantial concern, we regret to note, is an insult to the collective intelligence of those who caution against this, for the benefit of the Bar’s own credibility and the right of the general public to an unbiased legal opinion alike.

  1. Increase of quorum for Bar AGMs

Contrary to the claim of the NYLC that Kee Mohd Thariq fails to appreciate the history behind the AGMs of the Malaysian Bar, he and indeed the rest of YP have done our research thereon, and we find that Mr. Steven Thiru’s statement claiming that increasing the current quorum for AGMs of the Malaysian Bar from 500 members to 4,000 renders the Bar Council’s effective cession is not only preposterous, but also incorrect. There is precedent, prior to the 2006 amendment to the LPA establishing the current quorum, indicating that this higher number is indeed achievable, per the reconvening of the 59th AGM of the Bar back in 2005, where 3,027 members attended thereby ensuring quorum was reached. This was hailed by the Bar President at the time, Yeo Yang Poh, as vindicating the ability of members to rise to the occasion and The Star’s news report on the same at the time is archived right at the Malaysian Bar’s own website. If members of the Bar rose to the occasion back then, there is no reason why they cannot do so again.

But interestingly, this precedent was never alluded to by Mr. Steven Thiru nor by the NYLC in their response to Kee’s article. Further, the notion that the Bar Council will somehow close shop as a result of a lack of quorum is in contrast to the current Bar President’s assertion as reported in the Malay Mail Online on July 15, 2016 that the highest attendance the Malaysian Bar has ever secured in its history amounts to a measly 1,906 members. Why the discrepancy? Kee omitted reference thereto in his article, as it was thought appropriate as well as considerate, to allow Mr. Steven as the Bar’s President the opportunity to explain this incongruity, but alas, disappointingly, not only has he failed to do so, but it appears that the NYLC wishes to perpetuate this myth on his behalf.

  1. Foreign investors and the Bar

That investors, unlike as with the judiciary of a nation, do not care whether a legal professional body such as the Malaysian Bar is, as a whole, independent or otherwise is pretty much accurate, and it is disingenuous of the MYLC to throw into the mix legal due diligence undertaken by individual or groups of lawyers, duly hired by investors based on solely their own unique professional competencies, abilities and circumstances, and not their viewpoints. This is obviously an attempt at obfuscation.

Legal due diligence by lawyers does not have the goal of holding governments to account – this kind of diligence is undertaken by and is the role of members of parliament in a democracy, and is not the duty of privately hired legal help. Legal due diligence, in reality, is merely an inquiry into the legal and regulatory compliance of entities such as corporations, societies and other bodies corporate of interest and/or concern to the investor.

Further, investors have control over and direction of any legal due diligence undertaken by lawyers, unlike as is the case with courts and tribunals. So while the latter must be independent to ensure fairness in decision making affecting such investors, the former, do not. The NYLC’s conflation of two very different types of due diligence suggests deliberate muddying of their respective divergent roles or a lack of understanding of our national legal framework.

  1. Elections to the Bar Council and State Bar Committees

We regret yet again a misrepresentation by the NYLC this time on why exactly movements such as Bersih and the Malaysian Bar by extension support the abolition of postal votes in respect of general elections. These are in no part due to, as the NYLC puts it, the Election Commission making the criteria unduly narrow, overly bureaucratic and failing to widen the franchise. It is because the postal votes are and indeed have been subject to tampering by officials in charge of tabulating the votes, as can be gleaned from the statements and resolutions of these organisations opposed to postal voting, issued time and again by them.

Likewise the same concern is had with respect to elections to the Bar Council and, as postulated by the Attorney-General Tan Sri Mohamed Apandi Ali in his article published by Berita Harian on July 4, 2016, 50 votes cast during the elections held to the Bar Council for the 2007/2008 session were held to be fraudulent and yet nothing was done, and the continuing inaction in this regard by the Bar, means that this fear is not unfounded.

The disquiet amongst members is further compounded by the staunch refusal of the Malaysian Bar (unlike Election Commission officials) to allow independent third party monitors to observe live counting of the votes, and subjects candidates and their representatives the ability to do so only vide a pathetic live video feed, and even then after executing a letter of undertaking, which is not a legal requirement in the LPA or any other written law. The act of the Bar in cutting the live feed in response to one candidate, M Reza Hassan’s, refusal to sign the undertaking and barging into the room where the feed was shown during the tabulation of votes for the 2014/2015 session is cause for further alarm in this regard.

The NYLC’s contention that to ensure free and fair elections the current system must remain, cannot be further from the truth. There is simply no accountability. There are no checks and balances. The current postal voting system is the furthest thing from free and fair. Just imagine: the Bar Council themselves are the one counting the votes unsupervised!

  1. Representation of young lawyers within the Bar

Unlike evidently the NYLC, we do not have access to the amendments to the LPA as presently proposed, and cannot verify for ourselves NYLC’s claim that a member will have less influence on the outcome of the elections if they are enacted, and neither can anyone else. Are we expected to take this claim at face value?

But in any event, free and fair elections can only come about by one method of voting – that of secrecy of vote ballot papers cast in ballot boxes situated in polling stations, as is the case with general elections. This need not involve high costs – the existing offices of the State Bar Committees can serve as polling stations, and a designated day or number of days can be set in order for members to come and cast their ballots, subject to the same requirements practised in a general election i.e. registration and safeguards against double voting such as by requiring the use of indelible ink.

This method of secret vote by ballot, and not by postal votes delivered to the Bar Council or, laughably, by show of hands for State Bar Committees as is practised currently, ensures greater reliability compared to the present system of allowing just about anyone to return a postal ballot within a month’s time frame. In fact a demonstrably successful running of this system by the Malaysian Bar could serve as an example and catalyst for Election Commission officials to mend their ways in the conduct of general elections more than any protest or rally ever could.

  1. Contribution of young lawyers

While Kee and other members of the Bar with YP are grateful that section 46A(1)(a) of the LPA that disqualified members of less than seven years’ standing from serving in the Bar Council and State Bar Committees is no more, one right move by the Bar in this regard does not excuse a history of injustices perpetrated upon young members of the Bar by the Bar Council whether successful or otherwise.

For instance, while we commend the Bar Council for its support leading to the repeal of the LPA section mentioned above, we are also mindful that it is the same Council who not too long ago, also proposed that the establishment of new law firms be limited to members of at least seven years’ standing as well. Thankfully this proposal was shot down in a past AGM, in no small part due to the efforts of young lawyers in opposing the proposal back then.

The NYLC is right that young lawyers are the vanguard of the Malaysian Bar. Being the future of the Bar, it is their responsibility therefore not to parrot the words of or defend the actions of the Bar Council or its members as they do with their response to Kee’s article, but to act as a check on the Council’s excesses by genuinely making known the concerns of young legal practitioners and to rebuke the Council accordingly when its members patronise young lawyers the way they do currently.

  1. Meritocracy or representation?

Standing for office in the Bar Council is as much about representation as it is about meritocracy, and perhaps even more so. If the amendments result in permanent places on the Council for those of less than 10 years’ practice, thus ensuring that the concerns of young lawyers are heard within the Council and their needs duly met, we see no reason to object to the same.

Besides, if merit were the sole criterion in running for office, then all concerns and interests of different segments of the Bar membership, which is broad based consisting of members of different classification based on not only age but race, religion, gender and the like, will fail to be addressed by the Malaysian Bar and this would result in widening inequality between Bar members based on those classifications. An amendment taking into account age, as well as other concerns, would reflect the spirit of Article 8 of the Constitution affirming equality before the law and the prohibition of discrimination on the criteria set forth in Article 8(2) specifically.

  1. CPD Scheme

The imposition of the Continuing Professional Development (CPD) scheme reflects in many ways the failure of the current system of administration practised within the Malaysian Bar. Having tried to impose the scheme for many years at each AGM but failing to muster support, the Bar Council has sought to persist with its introduction, apparently refusing to take no for an answer, and in its latest incarnation, tabled before the recently concluded Bar AGM held earlier this year, the scheme will apply progressively, affecting only young lawyers called to the Bar after 2011, being some 6,000 members of the Bar.

Yet out of some 700 members of the Bar who attended that AGM, some 300 had left earlier before the debate and vote was held on the said motion, and out of 589 members left voting, the motion was carried 295 to 294, in short, a mere 1 vote decided the fate of all 6,000 young members who are to be forced to attend this scheme or face having to pay a hefty fine of RM500. The NYLC’s endorsement of this travesty betrays its lack of respect for the principle of democracy that is a hallmark of decision making practised within this country, as enshrined in our Constitution.

How can any self-respecting body seeking to govern its 17,000 members, make decisions based on meetings attended by a mere 500 of these members, when these decisions affect all or large portions of other members? This is precisely why the quorum needs increasing – to make the attendance and vote more democratic, representative and in accordance with contemporary situations and needs. It is the responsibility of the Bar Council to make this quorum work for the benefit of all Malaysian Bar members, as it has in the past and can do so again, if it just stops moaning and immediately embarks upon the task at hand.

  1. Bar’s failure to uphold human rights

The NLYC has failed to respond to Kee’s mention of an earlier article written by another member of YP, Faidhur Rahman Abdul Hadi, titled Malaysian Bar decision making process in serious need of reform (Malay Mail Online, July 26, 2016), for which he has received letter from the Bar’s secretariat reprimanding him regarding the same for disclosing to the public at large Malaysian Bar AGM proceedings (despite there being no law to the contrary of this) and warning him not to do the same again, in total denial of his freedom of speech and expression pursuant to Article 10(1)(a) of the Constitution. If the Bar Council supports young lawyers, as the NYLC postulates, the Bar Council would not have issued such a letter. This makes a mockery of the Bar’s supposed reputation as a defender of human rights. Even the contents of the article, which touched upon the human rights implications of the CPD scheme, was all but ignored.

While it is clear that while voluntary learning schemes should be provided and attendance thereon encouraged, making the same compulsory for members amounts to none other than forced labour, and is a violation of fundamental liberties, in particular Article 6(2) of the Federal Constitution, Article 4 of the Universal Declaration of Human Rights (UDHR), Article 8(3) of the International Covenant on Civil and Political Rights (ICCPR) as well as the International Labour Organisation (ILO)’s 1930 Forced Labour Convention and 1957 Abolition of Forced Labour Convention. It is also arguable, for the most part based on the discourse present at the recent AGM suggesting that young lawyers are somehow in need of a compulsory learning scheme due to their supposed unemployability and inability to practice as counsel, that the scheme also amounts to degrading treatment of young lawyers, which is prohibited by Article 5 of the UDHR and Article 7 of the ICCPR.

Rather than be concerned for Faidhur’s right to speak up as a young lawyer or even the welfare and rights of many of the 6,000 young lawyers about to be penalised unnecessarily for being forced to attend a scheme they neither have any interest in or desire to be a part of, the NYLC has chosen to defend the Bar Council’s action in the flagrant disregard of an individual’s free speech rights and partake in the commission of what potentially or at least arguably constitutes one of the most systematic violation of human rights perpetrated in Malaysia committed by a body against its members in recent times, and against the ban on forced labour at that. Thus Kee, as well as other young members of the Bar can be excused if they are not impressed by any call to provide suggestions and input to address the issues faced by members of the Bar internally by joining any Malaysian Bar or State Bar Committee. The administration of the Malaysian Bar is in such a bad state that only external pressure, not internal participation, can result in meaningful change and it is to that end the Malaysian Bar must be reformed.

  1. Bar’s selective view of what amounts to justice

It is odd that the NYLC considers employee and consumer rights mere party political issues, but the welfare of political party leaders such as Datuk Seri Anwar Ibrahim and Lim Guan Eng are not. That the former are considered non-issues while the latter are, speaks volumes about the misplaced sense of priorities the Bar has, and its failure to appreciate the true meaning of the terms administration and justice, or even the meaning of the term justice as used in section 42(1)(a) of the LPA. This would suggest that an amendment is needed to clarify what is meant by the term used in section 42(1)(a) of the LPA as well, which unfortunately, isn’t included in the proposed reforms forming part of the proposed LPA amendments to be tabled in the coming months.

  1. Independence of the Bar

While the Bar is statutorily bound to make decisions free of external influence by virtue of section 42(1)(a) of the LPA as supported by principle 24 of the of the Basic Principles on the Role of Lawyers agreed in Havana, Cuba in 1990 and by the UN Human Rights Council in 2015, the NYLC conveniently forgets the existence of section 42(1)(l) of the same law, which states that the Malaysian Bar must “promote good relations and social intercourse amongst members and between members and other persons concerned in the administration of law and justice in Malaysia,” as well as principle 25 of the Basic Principle on the Roles of Lawyers, which states that “Professional associations of lawyers shall cooperate with Governments to ensure that everyone has effective and equal access to legal services and that lawyers are able, without improper interference, to counsel and assist their clients in accordance with the law and recognized professional standards and ethics,”

This would mean that the appointment of two (2) Government representatives in the Bar Council is not a limitation on the independence of the Bar (notwithstanding that the Bar is in fact not independent even as currently constituted) but in pursuance of greater cooperation between legal practitioners and other bodies concerned in the administration of justice, which necessarily includes the Government.

  1. Conclusion

While the NYLC takes a myopic and jaundiced view of the proposed amendments to the LPA to be tabled this October, we at YP remain positive as to the outcome of the amendments, which would clearly enhance democracy, ensure better representation and more reliable and transparent methods of voting, thus benefitting young as well as senior members of the Malaysian Bar alike. YP thus stands with Kee in support of the proposed reforms, and calls upon all affected parties to uphold the speedy passage and implementation of the same at the next session of the Malaysian Parliament.

Steven Thiru shouldn’t pretend that he cares about us young lawyers – Kee Thariq

I am a practising lawyer and a member of the Malaysian Bar. And I have to say, my President, Steven Thiru who is also the Chairman of the Bar Council has been making headlines of late. For all the wrong reasons, too.

First, on July 15, 2016 he was quoted by the Malay Mail Online as making the preposterous claim that the Bar Council will cease to function if the quorum for the Bar’s Annual General Meetings (AGMs) was hiked up from the current 500 to the more representative 25% of the total membership of the Bar due to supposed inability to encourage the participation 4,000 or so members to attend such AGMs, thus severely hampering the annual business of the Malaysian Bar. Rather than find ways and means to make this happen, per his duty along with other members in the Bar Council, he merely shrugged his shoulders and declared it can’t be done.

Second, on July 16, 2016, he attempted to mimic the scare tactics of George Osbourne, the former Chancellor of the Exchequer of the United Kingdom, in attempting to influence UK voters against voting for Brexit in a referendum held on the UK’s membership within the European Union held there recently. Steven Thiru did this by suggesting, as reported by the same online news portal, that the existence of government appointees on the Bar Council would undermine independence of the Bar, which in turn would scare off foreign investors, never mind that such investors don’t usually give two hoots whether a Bar is independent or otherwise, and the fact that lawyers, being advocates, take sides as part of the job. This ridiculous proposition, along with the first mentioned above, was ignored by the Malaysian public, much like George Osbourne’s Project Fear was also ignored by the British public.

But when the above two statements had no discernible effect with regards Malaysian public opinion, he made the most ludicrous claim of them all the day following the next day, on July 18, 2016. Imagining himself a well-meaning friend of us young lawyers who are starting out in practice, he claimed, again according to the Malay Mail Online, that the abolition of postal votes in elections to the Bar Council would be “unfair” to young lawyers such as myself, as it hinders our chances of getting elected to the Bar Council. It was a good thing I wasn’t drinking anything at the time I read this, as I immediately burst out with laughter.

Oh, the irony. The man who has previously affirmed his support for the demands of the Bersih clean elections movement regarding election balloting reform, including a demand to abolish all postal voting for general elections, now opposes the abolition of the same method of voting on account of elections to the Bar Council.

Further, having seen fit to oversee the implementation of the much hated Continuing Professional Development (CPD) Scheme, a mandatory training course many of us new in practice are loathe to attend, upon us young lawyers, by a AGM resolution of a one vote majority of some 200 (yes, 200!) or so members in attendance of the AGM present and voting earlier this year, he now pretends to be our best friend by feigning concern about our representation on the Bar.

The Member of Parliament for Alor Setar, Gooi Hsiao Leung, said it best when he told the Attorney-General Tan Sri Apandi Ali to “save it for the marines” recently on account of the proposed amendments to the Legal Profession Act 1976 affecting the Bar. Although I disagree with that MP’s position regarding the amendments, I must admit that the expression of his is quite beguiling. So having acknowledged the source thereof I will repeat the same here: Steven Thiru can save it for the marines. The reality is that he doesn’t give a damn whether we young lawyers get represented on the Bar Council or even whether all is right with us within the Bar. As far as him and his allies within the Council are concerned, we young ones are inexperienced, so we should just stay put and do as we’re told, as they “guide” us by imposing ever more burdensome regulations designed to restrict the efficient and effective practice of law by Malaysian Bar members at every turn.

This includes, apart from the unwanted and burdensome CPD Scheme, the neglect of the needs and welfare of young pupils who undergo nine months of chambering before admission to the Bar including but not limited to their treatment by their pupil masters, the subjecting and conditioning the same pupils to unnecessary and bureaucratic requirements before consenting to their entry into the Bar, the charging of exorbitant fees for any talks or seminars organised by the Bar, the imposition of compulsory tests and courses (such as pointless mandatory ethics courses) before gaining entry into the Bar as well as after (such as requiring mandatory attendance at talks and camps organised by the Bar), maintenance of a bureaucratic requirement to fill and hand in written forms that are similar year to year with respect to Practice Certificate and Sijil Annual renewal, and the long delay in issuing guidelines or policy on the Limited Liability Partnership although the Act governing the same has long since been introduced in 2012.

To this we may add the failure to speak up on ordinary issues affecting the well-being of the people such as high fuel prices, high food prices and defending employees as well as consumer rights, failure to uphold and defend the Federal Constitution particularly on matters concerning the position of Islam as the religion of the Federation, failing to implement the national language as the dominant medium of communication within the Bar and an unhealthy preoccupation with the welfare of a certain Federal opposition leader last year, replicated this year by a similarly sickening preoccupation with the fate of a certain public official heading the state of Penang who is being charged for alleged corruption.

Further, and this very much needs pointing out for everyone out there to note, the Bar Council appears to routinely engage in the silencing of dissent on the part of members of the Malaysian Bar who take different positions than that of the Council on public issues as well as regulation of the legal profession. Although Steven might claim, as was recently reported, that there are no gag orders within the Bar, my friend and fellow Bar colleague Faidhur Rahman Abdul Hadi received written notice from the Bar Council’s secretariat admonishing him for writing to the public about our Bar’s AGM proceedings held earlier this year, in scandalous disregard of the fact that there is no law prohibiting the same from being disclosed, and horrifyingly in spite of his right to freedom of speech pursuant to Article 10(1)(a) of our Federal Constitution.

The issues raised in his article, Malaysian Bar decision making process in serious need of reform (Malay Mail Online, March 21, 2016) such as the potential human rights implications of introducing a mandatory scheme of forced learning, among others, were all but ignored in the written notice of the Bar sent to him. If this isn’t a gag order then what is? And please don’t insult our intelligence by the utterly ridiculous reasoning that secrecy of proceedings promotes robust discourse amongst members. Quite the opposite is true, and this is something so basic it is obvious to even a three year old.

These, among many other reasons, is why the Malaysian Bar and particularly its executive body, the Bar Council, must be reformed without further delay. Already due in no small part to his latest press release, I have to field questions from clients and friends of other professions who enquire and worse, assume that all of us lawyers are natural DAP sympathizers. There’s only so much individuals like myself and other fellow colleagues who recognise the need for a truly independent Malaysian Bar uninfluenced by fear nor favour, can do to maintain the image of our profession.

For the good of the legal profession and Malaysia as a whole, I pray for speedy passage and implementation of the package of reforms intended to be introduced by our Attorney-General to the Legal Profession Act 1976 when Parliament convenes again this October. I also hope that the Government will be resolute in its intention to carry forward the reforms, and not be deterred nor swayed by the many misleading claims from the Bar Council, as well as their local and foreign supporters regarding the same. A true independent Bar is what the silent majority of practising lawyers really desire, and these reforms being the opportunity for the realisation of one, must be supported and seized upon by all my fellow colleagues post haste without any moment to lose.

Bar Council’s statement on Guan Eng partial and proof that the Bar is in need of reform — YP

The Young Professionals make reference to the statement by the latest press release of the President of the Malaysian Bar, Mr. Steven Thiru, issued on 11 July 2016, titled “Presumption of Innocence is the Cornerstone of the Criminal Justice System and Must be Respected,” It is gratifying to note that after days of maintaining a deafening silence on the issue of YB Lim Guan Eng’s arrest last 28 June on corruption charges, it has finally issued a statement thereon. The statement is sure to be defended by its proponents as being issued pursuant to responsibility of the Malaysian Bar to uphold the cause of justice uninfluenced by fear or favour, pursuant to paragraph 42(1)(a) of the Legal Profession Act 1976.

But does the statement of the Bar reflect this ideal? Alas, it is our considered opinion it does not. YP notes that the Malaysian Bar had issued a statement on 8 July 2015 calling for the Prime Minister, YAB Datuk Seri Najib Abdul Razak to take a leave of absence pending the outcome of the investigation into the deposit of unknown funds into the Prime Minister’s bank account. This statement, it is further observed, was made unequivocally and without any reservations, with the Bar taking the view that such a move was “clearly necessary” to dispel any perception of interference or influence.

While a subsequent statement made by the Bar Council indicates that the Bar has seemingly kept to this stand in respect of the Penang Chief Minister during a subsequent investigation into the latter’s alleged purchase of property below market price, this later press release dated 22 March 2016 reported by the Malay Mail Online (and not by the Malaysian Bar website, as is usually the case) qualifies this call by adding that “there is no strict legal requirement to do so”, “it all depends on the severity of the allegations” and “whether the public official under investigation can influence or be perceived as being in a position to interfere with the investigation,” all of which were absent when its call in respect of the Prime Minister was first made.

Clearly different standards are being applied by the Malaysian Bar in respect of two public officials, depending on which side of the political divide they are from i.e. whether the Barisan Nasional or Pakatan Harapan. While the Prime Minister must immediately take a leave of absence without delay, the Penang Chief Minister enjoys more latitude from the Bar as to whether he should do so or otherwise.

But the latest press release by the Bar shows clear favouritism on its part. The Bar Council has backtracked on its earlier call that the Chief Minister should take a leave of absence on the basis that the investigations into him are complete and thus “there should no longer be any possibility of interference in the investigation,”

Any reasonable man would know this to be false. The risks that evidence may be tampered with as a result of influence or interference do not cease upon completion of investigations, but continue well into the prosecution stage until and unless a conviction is made based on all the best available evidence made known to the relevant court conducting the trial. The Malaysian Bar also has a statutory duty to promote good relations and social intercourse between members and other persons concerned in the administration of law and justice in Malaysia, which includes assisting the courts in all manner possible in the dispensation thereof, which in turn necessarily involves helping to ensure that the best available evidence is at all times made available to them, including in the pending prosecution of the Chief Minister of Penang.

The statement of the Bar Council that it is “premature to decisively conclude” whether Lim Guan Eng should remain in office and that the risk of interference would depend on whether the evidence comprises of formal documents or oral witness evidence is disgraceful, despicable and cannot hold. Even primary school children are able to tell that this is not justice, let alone something within the scope of the Bar to conclude ostensibly in the discharge of its statutory duty. It is, for all intents and purposes, a sham and a farce which stains the good name of the legal profession.

In order to give paragraph 42(1)(a) of the Legal Profession Act its true meaning, the word “uninfluenced” appearing therein must be given full effect, and to this end, there cannot and must not be any perceived, let alone material, differences in standards applied by the Malaysian Bar towards public officials, not even an inch. This is noticeably not upheld in Steven Thiru’s latest press release.

YP is also of the opinion that the Malaysian Bar is similarly in breach of its statutory duty imposed by paragraph 42(1)(l) of the Legal Profession Act by failing to ensure that all potential evidence that may be adduced before the courts are adequately safeguarded from influence and interference.

The Bar Council’s clear failure to abide by the statutory undertakings of the profession indicates that the Malaysian Bar has failed in its duty, and must be reformed. YP notes that the Attorney-General has recently taken moves towards enacting such reforms. YP welcomes this development, and hopes that the same will result in a permanent cession of dual standards being routinely applied by the Malaysian Bar when it comes to issues affecting Malaysian society, and refocuses the Bar’s attention towards the much neglected welfare of its members.

Beyond the pale – Mohd Luttfi and Faidhur Rahman

The Two Towers is the second instalment of J.R.R. Tolkien’s trilogy titled the Lord of the Rings. It tells of an alliance between two parties, Saruman the white, the wizard who betrayed the Fellowship of the Ring to ally with Sauron the enemy in order to raise an army that will reignite the war between the two kingdoms of Mordor and Gondor, and win the same for Mordor, as well as restore the One Ring to its previous owner, Sauron, enabling him to rule the realm once again.

This epic Middle Earth fantasy, based on a book of the same name written by Tolkien in 1954, was made into a movie directed by Peter Jackson in 2002, enthralling many fans of the original books, and introduced many of those who were previously unacquainted with the books to the trilogy.

It is then little wonder this particular title came to mind when one of yours truly stumbled upon two very entertaining articles published by the Malay Mail Online in the course of the past three days since the start of this new month of July. Following yet another controversy last week, where one Malay Muslim, Maryam Lee, posted in her Facebook wall that she decided (out of the blue on one fine day, it seems) to make a conscious protest to “stand up for Malaysian Muslim oppressed women”, by eating, drinking and making merry publically and openly during Ramadan within the safe confines of a Chicken Rice Shop outlet in a mall within the Klang Valley, and following her – naturally – being utterly condemned for this bizarre act on social media, two Malay Mail Online columnists, Farouk A. Peru and Zurairi AR decided that they had to write something in her defence.

It didn’t matter that groups normally aligned with their liberal stance on religion in the past, such as Dr. Ahmad Farouk Musa of the Islamic Renaissance Front (IRF) had decided, in this instance, to call her out and disavow her for going a tad too far than what they would be willing to go.

No, no! They would not have it! She was an ally, and needed protection. So, like the towers existing in the fantasy that was penned by the celebrated late author abovenamed, they allied as two in the service of her cause, by writing articles in her support.

The first article, “Why I support Maryam Lee’s non-fasting protest” was published on 1 July. The writer, Farouk A. Peru, as usual, employed his routine standard operating procedure: either agree with his take on what Islam should be, or be called an “Islamofascist”. No exceptions.

He begins with an avowed admiration for Muslim women who “unflinchingly stand” against “Islamofacism”, listing Amina Wadud Muhsin as an example of one such idol deserving of this admiration of his. Then, hailing his new darling, Maryam Lee as part of a so-called new generation of Muslim feminists, he asserted on her behalf that she was entitled to eat as according to traditional Islam, women are forbidden to pray and fast during menstruation, and thus, according to Maryam (wait, he didn’t know this himself?), it is not therefore a crime for a Muslim woman to eat and drink during Ramadan either.

We can only shake our heads at this asininity. Hey, Farouk! It isn’t the fact that she didn’t fast that was objectionable (as the various responses to Maryam Lee’s Facebook post themselves made clear), it was the act of doing so in public! And they call our politicians stupid.

And while we’re on this point, we remind the same writer that there isn’t some unspoken rule that prevents Maryam from legitimately eating and drinking in public. It is the law itself. Section 15 of the Syariah Criminal Offences (Federal Territories) Act 1997 (as well as various identical provisions in force within other states of Malaysia) provides that any person who during the hours of fasting in the month of Ramadan is found openly or in a public place (this includes Chicken Rice Shop outlets, by the way) to be eating or drinking AND those who sell to any Muslim any food or drink for immediate consumption during such hours is guilty of an offence and shall be liable to a fine of up to RM1,000.00, imprisonment of six months or both!

This means that not only did Maryam Lee break the law, but the man who served her meal as well! No wonder he was mistaken for being rude – he was concerned for his own culpability. Can anyone really blame him?

Having both failed to comprehend the nature of the complaint against his friend, and failed to duly research the proper implications, he wraps up his rambunctious article by taking a swipe at ISMA and “Malaysian Islamofascist authorities” and lastly, with all the traits of a tantrum throwing infant, ended with a demand that others rise up to the challenge to teach the “spoilt and petulant Malay Muslim” a lesson, thus insulting a great deal of the population!

But as dreary as Farouk’s article was, it was nothing compared to the trashy piece penned by Zurairi AR, which is not just beyond the pale (although this is convenient as a title)  but beyond absurdity or even the realm of reality. So illogical and mendacious was his article published on July 3, “We need solidarity for Muslims who do not fast”, that reading it leaves one with the acute impression that its author hails from some kind of parallel universe where time moves in the opposite direction, where gravity is repealed and where the laws of physics as we know them don’t apply.

Beginning with a prompt dismissal of the annual Fast4Malaysia as nothing but a “dishonest” event (which we have no qualms with, by the way), he goes on to bemoan the fate of some Muslims in Malaysia who won’t or cannot fast, as being denied so-called nourishment due to Shariah. Maryam Lee, who he says is a friend, is one among plenty of them.

Further lamenting the treatment that his friend Maryam deservedly got, he dropped his first incomprehensible bombshell. “I cannot make this any clearer: Ramadan is a month. And months, in general, do not care if humans disrespect them or not. Because months do not have feelings,” he wrote.

This left us stupefied as to its denotation. We are sure you, dear reader, would be at a similar loss to understand this statement as we were. What does this even mean? Ramadan does not care about respect because it is a month and not a human being? What?

Maybe that there are many different categories of respect escaped him, but we refused to believe that someone could be this inane. Surely even a five year old child knew about the difference between respect accorded to humans and one accorded any religious or cultural practice?

Using his friend’s case in point, he then continued by taking strong exception to the restriction for Muslims to openly and publicly display their Shariah-allowed non-fasting situation, as if they are the victimised Muslims in the country. He termed it as an absurdity, when in reality, he grows even more absurd by each paragraph he writes.

Muslims, he claimed, should “own up” that it is them who feel insulted when others eat in public, due to his self-proclaimed reasons, not backed by any cold hard facts or evidence, that run the gamut from self-entitlement to insecurity, and then, in a stunning display of incoherence, even questions the appropriateness of etiquette and manners as an issue. “How could one act that is completely harmless one day, become so maligned on another?” he asks, incredibly. Because that other day is in the month of Ramadan, duh! Why should this even need to be spelt out? Any reasonable person, much less a practising or pious Muslim, can deduce this.

His further opinion about moral policing is, in our view, not worthy of comment, because morality (Akhlak) is deeply rooted in faith (Iman) where it goes in tandem with compliance to Shariah. Both are two sides of the same coin, so to speak. But of course, this aspect is lost to the humanist like the article’s author, who refuses to accept the Shariah proscribed co-relation and bond between manners, etiquette and morality as well as and Iman and Islam (faith and submission).

He also miserably failed to cite any instance of Muslims in countries “where public eating during Ramadan is completely allowed”. Yet another failure of his is to provide any evidence where the Muslims in those countries chose not to fast. What we find even more insulting is the suggestion that those Muslims, if they are allowed by Shariah to break their fast) “are less well-mannered than Malaysian Muslims” (and we believe he is referring to the likes of Maryam Lee here) who decides to break the prohibition.

In a peculiar twist, he then suggests that non-Muslims brazenly join non fasting Muslims for lunch rather than with fasting Muslims “who try to demand undeserved respect,” and then asserts that it is right that Ramadan has, in his view, “peeled back the pretence of the rest of the year to show an increasingly Islamised society”. Unbelievable. Muslims who want to follow their religion better listen up, as simply practising your faith is “unsympathetic” and should somehow be discouraged, if not out rightly prohibited, as the case is in Xinjiang, China. Oddly enough perhaps he would be happier there.

We remind all fellow Muslims, including ourselves that, lest it be forgotten, the provisions of Shariah is incumbent upon all Muslims, irrespective of their geographical location, language, social, economic and educational backgrounds. A Muslim diplomat, for example, is as much duty bound to observe the Shariah (and be held accountable of any breach thereof) as a Muslim poor farmer or Muslim university graduate. The values of and morality as prescribed by Islam is the same in every corner of the globe. The regulations and boundaries of this divinely inspired system of life governs the believer’s entire life, from birth to death, and it also uniquely governs matters of the bathroom as well as the boardroom and bedroom.

Muslims who follow the injunctions of the Holy Quran and Sunnah believe that Islam is the only divinely ordained ideology, system of life and value system which must be upheld in the face of all and any man-made faulty and hollow systems under any other names, brands or labels – be  they secularism, socialism, liberalism or humanism. For them, it is the only way of life (deen) which sees no divorce between the mundane and ephemeral pursuits in life with that of their consequences in the Hereafter. Iman (faith) becomes meaningless without akhlak (morality) and compliance (Islam) with the commandments of Allah, as soundly preserved in the main sources of life guidelines – the Quran and Hadith.

Humanists, such as the authors of the abovementioned two articles, are at a lost to comprehend this, for sure. But there’s no need to quail or insult, less still pen incoherent and boisterous articles against those Muslims who wish to live by the Islamic code, such as fasting during Ramadan. There is even less of a need to encourage senseless scenes and dramatic disturbances by pitting non-Muslims against Muslims who fast as well. It has never been a problem for most non-Muslims in Malaysia that a Malay Muslim should want adhere to the tenets of his or her faith by fasting during Ramadan, nor has there been any objection to the idea that Muslims who can’t fast should not be seen eating or drinking in public.

It is a matter of common courtesy that respect be shown to those who fast by not eating and drinking in front of them. Unfortunately society does not place much of a premium on the idea of respect these days, which is why we have writers like Zurairi who advocate open displays of rudeness in their articles.

Instead of encouraging senseless deeds, these writers should seek instead to understand and promote as well as practice mutual respect between different kinds and kin for Muslims and non-Muslims alike. This is not difficult. Much like the many non-Muslims who ignore the absurd suggestion of Zurairi have found deeper meaning and understanding of Islam as a result of their decision to fast in solidarity with fasting Muslims, Maryam Lee, Zurairi AR and Farouk A. Peru might too, yet have a chance to discover what Islam as a religion and way of life is really about.

  • Muhammad Luttfi Abdul Khalid and Faidhur Rahman Abdul Hadi are lawyers and the Chairman of i-Peguam and Chief Executive of Young Professionals (YP) respectively.
  • Also published by Merdeka-Online, Malay Mail Online and Ismaweb on 5 July 2016