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2008/11/23
Sunday Interview:Fatwa on 'pengkid' to prevent lesbianism
By : ANIZA DAMIS

EXACTLY one month ago, the National Fatwa Council made a decision against women who dressed like men, denouncing it as haram. This has been met with anger, protest, and mainly, confusion, as to what exactly it is that the fatwa condemns. ANIZA DAMIS speaks to Malaysian De partment of Islamic Development (Jakim) director-general Datuk Wan Mohamad Sheikh Abd Aziz to get a clearer picture of the issue.

(This is a translation of the interview, which was conducted in Bahasa Malaysia)

Q: What is the actual definition of “pengkid”?
A: Pengkid refers to a married woman or maiden whose appearance or image is like that of a man. Although this also includes the dressing of the person and not just the way she behaves, the way of dressing is just one aspect of what makes a pengkid.

A woman may be dressed as a woman, but her behaviour may be like a man, or it might be a combination of this. She might also have a sexual desire for women.

This brings it “hampir” (close) to the practice of les bianism.

Q: Is it close to, or is it actually lesbianism? A: We can’t say that all people who are pengkid are lesbians. That wouldn’t be right. That’s why I say it is “hampir”.

Hampir means she doesn’t do that act, but she is heading that way. For instance, Islam forbids people from coming close to zina. That means, not only is the act forbidden, but any act that may lead to the actual act is also forbidden.

I believe there is no religion that allows lesbianism or homosexuality. But anything that can drive or lead towards it should also be stopped. So, this is the culture that we are trying to stop.

Actually, we are trying to save these women (from be coming lesbians).

Q: When you translate this fatwa into English, the word “tomboy” is used instead of “pengkid”. “Tomboy” in English doesn’t have a sexual connotation. So, what do you mean by “dressing like a man”?
A: This is what we mean by “fitrah”.

A safe way is to teach children, whether male or female, from an early age to follow their respective fitrah.

If we allow this budaya practice (of pengkid) to continue to develop, it will become an tradition, and then a norm. When it becomes a norm, then people will think no longer think of it as a wrong. This is something we do not want to happen.

That’s why we want to go back to the fitrah. If you follow your fitrah, the chances of you being safe is higher, compared with if we were to completely give freedom until you could not differentiate between feminine characteristics and male characteristics.

Q: Unlike in other Muslim countries where a fatwa is an advisory, in Malaysia it is law. Do you really want to make this fatwa law?
A: In Malaysia, not all fatwa becomes law. It only becomes law when it is gazetted. And not all fatwas in Malaysia are gazetted.

Q: So, this fatwa hasn’t been gazetted?
A: This is only at the national muzakarah stage. Most fatwas are not gazetted.

Usually, we look at what the subject is. If it is a fatwa that involves aqidah (Islamic doctrine), it is gazetted. This is because it requires follow-up action by the authorities, especially with deviationist teachings, or extremist or militant movements, as these involve issues of security and will need legal action.

But not all fatwas are gazetted. In fact, not all fatwas have to be gazetted.

Q: But in this case?
A: The gazetting of this fatwa is up to the discretion of the State. We prefer to look at it as an issue of social ill that we can overcome through dakwah (propagation of Islam through words and action) and education.

There are already provisions in the law for cases that have gone to the point of sexual crimes – such as being an active lesbian.

This decision was only just recently made. The process of making a fatwa is quite unique. The national fatwa council is a council that is appointed by the Council of Rulers. It’s members are the muftis of all States and five experts who are recognised by Jakim and appointed by the Council of Rulers.

If it is a national issue, we will discuss it and then standardise the fatwa at the national level. But for it to be an official fatwa depends on the religious authorities in the respective states.

Q: So, are there any states that want to gazette this fatwa?
A: You’ll have to ask the respective state religious authorities.

But in our opinion, this is a social ill, whereby there are many other ways in which to address it (other than legal). Like using wisdom and harmony.

Q: Is there any proof that if a woman dresses as a man, she will become a lesbian? What is the link between clothes and lesbianism?
A: Perhaps this is something that is different between the Islamic perspective and non-Islamic perspective.

Our approach is based on a rule of the maxim in Islamic jurisprudence – that we prevent the opportunity for some thing bad to happen. We believe this is a good approach in preventing something bad which is forseeable, based on research and other issues.

This principle is used when determining a fatwa.

Back to the issue of clothes. We have said from the beginning that dressing is not the sole factor (in lesbianism). It is more about behaviour. Don’t forget, a pengkid might be very feminine, but she is a pengkid because of her behaviour and sexual desires.

Q: So, a pengkid has a sexual connotation?
A: Yes. This is what we are worried about. What is meant by pengkid is a person who is inclined to be attracted to someone of the same sex.

It starts with the clothes and the behaviour.

What we are most worried about is that this person might go to the extreme level. That is why we feel it is safer for each person to strive to follow or abide by his or her fitrah.

A woman would be more damai (at peace) if she had a man as a companion.

Q: At the same time, we can’t go out with a man who is not our muhrim, right?
A: True. But that (relationship) can be legalised through marriage. That is a different issue.

Women can be friends with women, and men can be friends with men. That is encouraged.

That’s why in the hadith: Two people (of the same sex) that love each other, meet and part only because of Allah.
What this means is, these two people are true friends whose friendship is guided through morals.

There is nothing that says women cannot love and respect each other. This is allowed in religion. What is forbidden is the extreme act. They don’t approach each other as a woman friend, but as a male companion. This is the problem.

Q: The problem is, when it comes to the level of society, the understanding of this fatwa might be different. For instance, at the moment, a lot of men’s clothes have become unisex for women. So, for instance, on the days where I am going to a particularly rough place, I might wear a shirt and pants, and I might not wear earrings or bright lipstick. If someone sees me at that time, what would be the conclusion that person might have on my sexual preference?
A: That is a different issue. We are currently talking about normal conditions. If we talk about situations like you mentioned, then that’s the same as a male policeman going undercover as a woman.

Q: The niat (intention) of the fatwa is one thing, but its application is another. What is going to happen if someone who has heard of this fatwa starts harrassing a woman whom he feels is dressed or behaving like a man?
A: Let’s forget about the possibility of harassment by men.

Q: We can’t.
A: Alright. But what if the woman who behaves like a man attracts the attention of other women. Doesn’t that also present a threat of harassment?

Q: If that’s the rationale, then I’m better off dressed as a man. For, if I were to dress as a man, I would be harassed by fewer women than I would be by men, were I to be dressed as a woman.
A: (laughs) Actually, the danger to you would then be that you would be harassed by men, and there would be a new harasser (women).

But a pengkid is not just about dressing. Dressing is just one of the factors. A woman might have a husband, wears a baju kurung and tudung. But if her behaviour and desire is towards other women, this is where the woman starts to neglect her husband or even leaves him for her woman companion.

Q: And if the woman leaves her husband for another man?
A: That is another issue.

What we are discussing right now is the destruction of the family institution, which would affect the children.

And, it might even come to a point sometime in the future, where it could affect the grandchildren. Because these days, as Joan Collins says, even grandmothers are well turned out.

Q: Surely grandmothers are allowed to dress up.
A: Yes, but think of the effects on the grandchildren (if the grandmother is a lesbian). This threat is not impossible. It might happen to young grandmothers, who might have an interest in other women.

So, don’t think that pengkids are just a danger to maidens. It is also a threat to (married) women. Whether she is a maiden, a married woman, or even a grandmother, she can be exposed to this problem.

Dressing is just one factor.

Q: What is in our hearts is not visible, whereas clothes is something people can see, and that is the thing upon which people can take action. What we are afraid of is the harassment and victimisation of women, whom you say you are trying to save. Your fatwa can have negative repercussions.
A: What would happen if we didn’t give any advice or reminders to save our people? If we allow this problem to continue and expand, our eastern culture will be no different from the western culture. Where would our religious values go?

We consider the fatwa as an advice to parents. Parents love their children. So, this opinion (fatwa) is to save the next generation. At the same time, we have to remember that a fatwa also saves culture.

Q: I want to look at the application. What is are the characteristics or traits or elements that are considered feminine? What is the dresscode for women?
A: The dresscode for Muslim women is based on ensuring her safety, honour and femininity. So, the issue of the shape of dress, colour and so on is not an important issue.

In Islam, the important keyword is aurat (parts of the body which must be covered). In the context of a woman, she must not only be fully covered (except for the face and hands), but her clothes must not show the shape of her body.

For instance, people always say Muslim women cannot wear jeans. But who says they can’t? In reality, Muslim women can wear jeans in public, but it has to be complemented by other things so that the shape of her body will not be revealed.

But when she goes into her own house with her family members, the jeans doesn’t become a problem.

Q: The problem with the possible interpretations of this fatwa is that it may go back to the days when women were oppressed. It might even, to an extreme degree, lead people to say that women should not be engineers.
A: Does Islam forbid women from being engineers?

Q: No, it doesn’t. But what is the practice?
A: A practice may be a tradition, not religious teaching. We are talking about religious teaching.

We are in Malaysia, not Bangladesh where they mix-up their cultural practices with their religious practices.

Over here, we are talking about what is taught by religion.

Q: That is because you are a thinking person. You cannot assume that everyone in society is going to think like that.
A: That’s why we issued the fatwa with an explanation, so that people would understand that this is a religious requirement. It is not a restriction that has nothing to do with religion.

Also, don’t forget that religion is actually very flexible. A lot of traditional practices can be accepted into religious practice. The principle of Islamic jurisprudence is that an adat tradition) can be accepted as hukum (decision). But that depends on what kind of adat. Certainly, not an adat that oppresses women, for that is not in keeping with the demands of religion. It is Islam that freed women.

Q: But, unless they studied the history of Islam, not a lot of people realise how much Islam liberated women. Especially now, if an outsider looks at Islam, it seems as if Islam oppresses women. This is because of what is practised, which may not be the same as Islam teaches.

A: I think a lot of people think a dresscode is restrictive. If you wear certain clothes, does it mean you cannot be a careerwoman, a professional who is successful in her field? No. This proves that religion does not oppress women. What restricts you is not your clothes.

People use the Islamic dresscode as an excuse to say that Islam oppresses women.

Q: Be realistic. Malay culture is very patriarchal and very male-oriented. A fatwa that starts out with good intentions could be deviated and used as a tool for something else. For instance, if you were the creator of something as potent as nuclear energy, surely you would want to think of a way to ensure that it is not used for the would want to think it is not used for the wrong reasons. If a state gazettes this fatwa, how is it going to be enforced? For instance, not every Muslim woman wears a tudung. So, in order to enforce the fatwa, you have to first verify that a woman is a Muslim. Does that mean that an enforcement officer will stop the woman, ask to see her identification card (IC), look to see whether she is Muslim, and then if yes, proceed to look her up and down to assess her dressing? Most enforcement officers are men – so, isn’t this going to be a problem?
A: That is deviating the issue from the real issue. The real issue we are concerned about is when a married woman is attracted to a woman. Or when a young girl who is growing up and her social process is not in keeping with her fitrah. In the long run, this won’t be good for her. Men need women, and women need men. This is what we are trying to protect.

If we did not remind people that this is a deviant trend, are we willing to see how the next generation is going to look like?

This fatwa is intended to bring about good. Even though it is advice and guidance for Muslims, it is actually suited to the universal values of other religions.

Does Judaism, Christianity, Hinduism, Taoism, or Buddhism allow lesbianism?

Q: Do you consider homosexuality to be a ‘contagious disease’?
A: If we look at Eastern Europe and some states in the United States, there is a move to legalise these things there, from pressure groups or international organisations. But this is a social movement. We are looking at the issue from a religious perspective.

NGOs in Malaysia’s who held demonstrations protesting this fatwa were largely non-Muslim – the people behind the demonstrations. That’s why I want to ask: In their religions, is lesbianism allowed?

Q: Maybe you are mistaken in thinking that they are objecting to your stand against homosexuality. Perhaps they are objecting to your restricting women’s rights to choose their own clothes.
A: If that is true, then that means they don’t understand the real issue.

The issue of pengkid is not just clothes. We have stated clearly that among the characteristics of a pengkid is the dressing. What we are discussing now is pengkid.

Q: Let’s look at khalwat (close proximity) raids. When enforcement officers suspect khalwat is taking place, they knock on the door in the middle of the night. The occupants of the residential unit, who are not up to any mischief, are sleeping. They are all chaste girls and there are no men hiding in the unit. But the enforcement officers barge in and start taking photos of these girls in their sleepclothes. These sleepclothes are not of the same standard of decency that a woman would wear if she were receiving guests in the daytime. But these enforcement officers take their photos in this state of undress. Isn’t this an offence? Whereas, the initial intention of the rule is different. But because the rule is there, it can be misused by an enforcement officer who has different objectives. This is the concern.
A: I think we’ve gone into a different topic. I don’t think we’re talking about pengkid anymore.

Q: This is about the repercussions of a fatwa. The niat might be good, but the application might be wrong. If we are realistic, we will admit that not all things that start with good intentions will end in goodness.
A: But we have to differentiate between principle and enforcement.
The principle of a certain law has to exist. It doesn’t mean that just because we are worried the enforcement will be wrongly applied, we don’t establish any laws.

For instance, we have the Penal Code. But there are people who misuse the Penal Code. We know that the police have been known to do this.

Q: But the police have their Standard Operating Procedures.
A: The Jabatan Agama (religious department) also has an SOP, but not a lot of people know that.

Just because one or two people masquerade as police, or there are some unethical policemen and do not observe legal procedures, does this mean we shouldn’t have these laws? What would happen to society?


We are talking about principles. We have to be clear on what is right and what is wrong. We have to do this either through codifying laws, or through a fatwa that gives guidance.

Q: Is it not possible, when issuing a fatwa like this, to add a proviso that says that the people who can guide or advise these women are only the parents and husband, and everyone else cannot disturb these women? Because if you really want to guide these women, then at least it would limit it to the people who are really involved in these women’s lives, rather than strangers who would just harrass.
A: That would not be practical or realistic at all. And it runs counter to the spirit of dakwah.
It is true that the parents, immediate family, and husband or wife have a right and responsibility to advise and protect their family members. A husband has the responsibility to protect his family. A wife has the right to advise her husband and family. But this does not mean that other people in society do not have the right in religion to correct a certain situation. In other contexts, we have such a thing as social responsibility. We cannot say, in the instance of hooliganism, that only the parents or elder siblings should admonish the child.

When it is something that can bring about ill, the person closest to the offender has a greater right and responsibility to take reparative action, but other people also have a role to play. That is the difference between seeing things from the perspective of dakwah and the western perspective of human rights.

Q: As we have seen from history, everytime society says it wants to protect women, in the end, it is the women who become victims.
A: I would like to challenge international research agencies to do a study on where women are safest.
Actually, it is women who live in a community that practises Islam that are safest. Because they are protected.
We can prove this with research. And don’t take isolated cases. Isolated cases exist everywhere.

Q: As a journalist, I go to all sorts of places in Kuala Lumpur and Malaysia. And, 99.99 per cent of the people who harass me are Malay men.
A: That’s why I said, “people who practise Islam”. Islam meaning protecting women. Those who harassed you were Malay men, but not Muslims who practise the teachings of Islam. We are talking about the teachings of Islam, not Malay culture.

Q: But laws are not for the good people, they are for the bad people. Good people, even if there are no laws, would still be good people.
A: If we had no laws, a social system that could guide and advise us, or religious teachings or fatwas, do you think this world would be peaceful?

Q: Yes.
A: What I mean is, our lives would be more secure and harmonious if there were laws and a social system that protected us. In the context of Islam, laws are Shariah (a way of life).

Q: If this fatwa is to stop homosexuality…
A: Lesbians. It’s to stop lesbianism.

Q: Why didn’t you come out with a fatwa reminding everyone that homosexuality – male or female – is wrong, and homosexuals should be advised about this. Why did you focus only on lesbians?
A: Everyone understands homosexuality and lesbianism. In the context of religion, this is a deviant practice.

But we are focusing on pengkids right now because it is a new trend that some people in society feel is not wrong. They see it as only a trend. If you only look at clothes, it might be seen as only a fashion trend.

This is what worries us.

As far as leabianism, homosexuality and zina (illicit sex) are concerned, there’s no need for a fatwa, because the rules are already clear on this. I think everyone already understands this. And all the provisions exist in law.

A fatwa focuses on new things where society is uncertain of its rightness or wrongness.

As a result of Jakim’s study, we concluded that this is a trend that our society seems unclear on, and even Muslims think it’s a normal thing. And this is something we are concerned about, because it can influence our children.

Q: You don’t think it’s a problem when, instead of casting your gaze downwards (from looking at people from the opposite sex), you are looking at the way a woman is dressed and assessing whether her clothes are too tight or too manly?
A: Actually, we don’t have to stare; it possible to see with just one glance. (laughs) Staring at a woman is a separate sin.

Q: Isn’t it that in Islam what is important is what is inside – your substance – instead of what you are wearing? Your niat is the most important, isn’t it?
A: That’s incorrect. Your interpretation is wrong.
Yes, it’s true that there is a hadith which says that our actions are judged based on our niat, and there is another hadith that says that Allah looks at our hearts. That’s because iman (faith) rests in the heart; and the Allah’s acceptance of our actions is based on our niat. That is the way Allah judges us.

But, in life, we are also bound to the principle that humans judge based on what humans can see. What is hidden can only be judged by Allah.
For instance, even if I cover all my aurat perfectly, like today when I am wearing the baju Melayu, but if I have an evil heart, even though I am dressed like a true Malay, or true Arab, or true Indian, I would still be a sinner because of my evil heart. That is one way Allah judges you, according to what is in your heart.

But Allah also judges you on your actions. In this context, there are things that are forbidden and things that are encouraged.

In dressing, for instance, the question of intention is one thing.

If I were to dress in such a way that exposed my aurat, even though my intentions are good, it is still an offence. The same as if I am properly dressed but have bad intentions. I have still done wrong.

You are judged on what is in your heart and how you translate that intention in your actions.

Q: Is it possible that there is a misunderstanding that a woman who dresses as a man will become a lesbian?
A: It looks as if we are only discussing clothes today.

Q: This is the thing that has created uproar in the month since the fatwa was announced.
A: But in the fatwa council’s discussion about pengkid, we spent less than five minutes talking about dressing.
If you look at our explanation on the issue, you’ll see that “pakaian” (clothing) is only mentioned a couple of times.

Q: But that paper is not issued to everyone. That is why this misunderstanding could have occurred. I myself looked all over the Jakim website for it.
A: We haven’t had a chance yet to explain the fatwa.

Q: But it’s been a month since the fatwa was announced.
A: When we announced the fatwa, we did try and explain it, but during the question and answer session with the Press, what they focused on was the issue of dress. Society has been misled by the media that is biased and prejudiced. This is not fair to the fatwa council.

Q: In one month, there has been no clear explanation of the fatwa. And so, it is not surprising if people are angry, because they do not understand the fatwa. And one month of no explanation isinexcusable.
A: Why is the media only just meeting us after one month? That has to be answered.

Q: I have been trying to see national fatwa council chair man Prof Datuk Shukor Husin for a while now.
A: Well, unfortunately, he’s been rather busy, visiting three countries and only just came back (two weeks ago).

But to completely put the blame on the media would not be right either.
We make only the decision of the fatwa available to the public. But for researchers or academics, they can come for the detailed explanation and get it at any time. In fact, there are so many of these people, that we can sometimes barely attend to them. But even so, we are always very glad when people come to study the fatwas and ask how they are decided.

Q: How is a fatwa decided?
A: At Jakim, the process is based on studies. We prepare a research paper. If the issue concerns Shariah ,we bring it to the panel that studies shariah issues, which consists of muftis and academics who are not Jakim staff and who are free to voice their opinions. We also have women.

Q: When deciding on this fatwa, were there any women involved?
A: After undergoing that process, we then bring the matter to the national fatwa council committee. We also have women in this committee, but not many people know this.

But the issue is not whether the fatwa was brought out by men or women. What is important is that research is done in a comprehensive manner. If a person is an expert, we invite that person to contribute.

Q: If a matter involves women, women should at least be consulted. Because Puan Najibah (the Jakim public relations officer) and I,for instance, both know that even if we were to dress up as men, we wouldn’t be attracted to women. If I were to dress you up in a baju kurung, do you think you might be attracted to Ustaz Zakaria (his special officer)?
A: (laughs) Oh dear, this is starting to feel like a court room.
Don’t forget, even though we might not be attracted to people from the same sex, they might be attracted to us.

Q: Well then, you shouldn’t dress like a man, otherwise I might be attracted to you…
A: Well, that would be in keeping with our fitrah. If women liked men, and men liked women, that is fitrah, and it can be legalised through the institution of marriage.

Q: What would happen if you dressed as a man, and a gay man was attracted to you?
A: That would be a different sort of crime.
That’s why I keep repeating, it’s not all about the clothes.
A man could seem extremely masculine, but in reality he is gay. What is at fault is not his clothes, but his homosexual behaviour.

Q: Surely you can see how, from a fatwa that had a good niat, in just one month it could be interpreted in so many different ways. That is the nature of mankind, to misinterpret things. And we haven’t even got to the enforcement stage yet.
A: We aren’t talking about enforcement yet. If the matter gets to an extreme level where, if we do nothing, the homosexual and lesbian culture becomes widespread, we might have to have enforcement. We are trying to save society.

Q: Let’s say if I were to dress like my photographer just now, and I get harassed by people because of this fatwa. What is my right? I’m not talking about enforcement by law, but enforcement by society.
A: If we talk about enforcement, it’s only the legal authorities, who have been given enforcement powers. People who have not been given enforcement powers are breaking the law if they try to do the enforcing. There are provisions to deal with those kinds of people.

Q: Is anyone going to be given the powers to enforce this fatwa if it is gazetted?
A: We already have religious department enforcers. In any case, at this moment, we have in the law what is called musahaqah. That is, when a woman has sexual relations with another woman.

(The penalty for this offence is a fine of not more than RM5,000 or imprisonment of not more than three years, or whipping of not more than six lashes, or a combination of any of these).

So far, there hasn’t been a case yet, but surely we’re not going to wait for this problem to arise before we do anything. We hope it won’t ever happen, but whatever that might lead to crime must be stopped. The same with any crime. If you study criminology, in any criminal system, if something can lead to a crime, there will be laws in place that will prevent this.

Q: But in the criminal system, a person is only penalised when he has committed the offence and is proven to have committed the offence.
A: That is another matter.
But if it is an act that may lead to a criminal act, in any criminal system, whether in the east or the west, there will be a system that will obstruct it.

For example, you need a licence to own a firearm. If you don’t have a licence, you can be penalised. This is to prevent a crime from happening.

Q: Can clothes be a weapon that can lead to a crime? The reason I keep coming back to this issue is because it is part of the wording in the fatwa. And, it is actually quite possible that people will forget the initial intention of the fatwa was to curb lesbianism, and focus solely on harassing women who seem to be dressed like men.
A: I think we have become stuck in a western values trap that makes the dresscode an excuse to denigrate our religion and values.

Q: But it is not westerners who are going be the main cause of the problem. It will be easterners like us.
A: I meant in the way we think. We are thinking about fiqh and unhealthy practices, and we have fallen into this trap. We have to look at it from the right perspective. We should prioritise the implied meaning of the fatwa.

Q: If everyone we were dealing with were all good men and women, this wouldn’t be a problem. The problem arises when there are people who do not think logically or rationally.
A: We will deal with that with the values and laws that already exist. If someone infringes on the rights and privacy of another person, I think we are not short on laws to deal with that.

Q: What if someone says, “Oh but the fatwa says I must advise or admonish you,” but the focus of admonishment is something altogether different?
A: Does the fatwa says that all people must be involved in this? The fatwa determines the principle, as a guideline for family members, educators. If we do not create this awareness, I cannot imagine what the character of Muslims or non- Muslims will be like in the future. Will Kuala Lumpur be another Bangkok or Helsinki?

We want our own Malaysian identity. Particularly as Malaysia is a Muslim country. We are admired for our strong faith, and for the moderate approach that we practise. It is a model for the entire 56 OIC (Organisation of the Islamic Conference) member countries.

Q: Is lesbianism or homosexuality a ‘contagious disease’?
A: Do we want to wait for it to be of disaster proportions before we take action?
Looking at the current reaction, it will become a disaster if we don’t do something now.

Q: But if you go to western countries, it doesn’t appear to be something that’s ‘contagious’.
A: Can you prove that it isn’t?

Q: Can you prove that it is?
A: We can prove it. Because it spread to this country. That’s proof that it’s contagious. That’s dangerous.

Q: Did it come here, or was it already here?
A: If each ethnicity practised its traditional culture, the issue of pengkid would not arise. Look at how traditional Malay women dressed, and look at how Indian and Chinese women dress. Looking at just the ethnic elements and not the religious ones, you can tell an Indian woman from an Indian man from the way they are differently dressed according to their tradition.

Just like Muslims, if we all observed the pure and clean elements of our culture, the issue of pengkid would not arise.

Q: When would you say this problem came to Malaysia?
A: It’s been around quite a while. But it was imported.

Q: Is it bad because it was an import? Islam was imported in to this country, too.
A: That’s true. Something is not bad just because it is an import. What matters is whether it has positive or negative values. If we import nano-technology, for instance, then that is an example of a good import.
For Jakim, which is an Islamic institution, what is not a good import is anything that contradicts the teachings of Islam.

All people of any religion or culture should be worried about this problem, because it can bring about social decline. Why should it be just Islam that has to do this battle? And why are people looking askance at us, whereas we are trying to save all of society?

If people of other religions also obeyed this fatwa, I’m certain it will bring good to Hindus, Buddhists and so on.

We are talking from the perspective of religion. Is what we have outlined from the Islamic perspective not good for Malaysians who are not Muslim?
If we respect this fatwa, will it visit harm on Muslims?

I would like non-Muslims in Malaysia to understand that the teachings of Islam is for the good of all.

People should realise that if the application or enforcement of a law is flawed, it is the fault of the person who is enforcing, and not the law itself. Because otherwise, does this mean we should abolish moral law?

When people question why should there be people to decide what we can wear, they are no longer questioning the enforcement of the law anymore, but the law itself.

THE FATWA

"PENGKID, that is, women who have the appearance, mannerisms and sexual orientation similar to men is haram in Islam. We urge parents and the Muslim community to pay serious attention to this problem. Emphasis should be on teaching and guiding young girls, especially on the aspects of their clothing, behaviour and appearance, so that this problem may be avoided because it runs counter to their fitrah* and Allah's way."

* Fitrah is the innate natural sexual inclination that each human is born with and which does not change. In Islam, if a person is born male, he is masculine and is sexually attracted to women; and if a person is born female, she is feminine and sexually attracted to men.

Can Anwar be trusted?
Ong Kian Ming and Oon Yeoh | May 27, 08 9:03am

Previously, we talked about how PKR
MCPX
de facto leader Anwar Ibrahim has not admitted to – and probably will never admit to – previous mistakes while he was part of the Barisan Nasional government. And as such, he would never apologise for them.

In today's piece, we want to deal with another important and somewhat related matter, which is can he be trusted?

Those who have observed Anwar over the years would probably agree to the following adjectives to describe him – slick, shrewd, cunning. These words do not necessarily have positive connotations and for good reason.

anwar ibrahim pc 120508 04Anwar has often been accused of being a political chameleon – capable of adjusting his messages depending on the audience he's addressing. He's great at massaging his messages in such a way that you feel he's telling you exactly what you want to hear. A smooth operator.

That doesn't mean that he is inconsistent or hypocritical – Dr Mahathir Mohamad has that market cornered. In fact, he's been very consistent in his policies since his release from prison. Take for example, his stance that the New Economic Policy (NEP) needs to be dismantled and replaced with something more inclusive. Even though he has been criticised by Umno over this matter, he has not relented once.

Two questions are relevant in regard to whether Anwar can be trusted. Firstly, is he a changed man? Secondly, does this even matter?

Is Anwar the Reformasi Man the same political animal as the Anwar the deputy prime minister? We think that having gone through what he has, it would be difficult for him not to have changed as a result.

Anwar went from the pinnacle of political power to the depths of political humiliation. He was charged with abuse of power and committing sodomy. He was beaten up by the then-chief of police. And his name – as well as those around him – was dragged through the mud by the mainstream media. Never before had a Malaysian politician of his stature felt the heavy hand of the state against him in the way Anwar did.

When he was locked up, he didn't wallow in self-pity. He used his time productively to read and to do copious amounts of soul searching. It's hard to imagine that the six years he spent in that cold jail cell failed to change him in some very profound and fundamental ways.

He will not renege on his promises

But even if one is cynical and believes that he has not changed, does it matter provided he carries out all the reforms he has promised?

anwar ibrahim pc 120508 03There is little doubt in our minds that he would free up the media, abolish the Internal Security Act and reform the Universities and University Colleges Act if he becomes the next PM. He would also dismantle the NEP and replace it with something better. You can also throw in a Freedom of Information Act to boot. In other words, he would implement all the things that civil society expects him to.

Why are we so confident about that?

Quite simply, because it would be to his strategic advantage to carry out such reforms. In fact, there is only upside and no downside for him to do so. He would be seen as the man who was responsible for 'freeing' up Malaysia and for turning it into a real democracy. He would become the greatest PM Malaysia ever had.

And what if he reneges on his promises – promises that have been widely-publicised domestically and internationally? Think of it this way. If Prime Minister Abdullah Ahmad Badawi could suffer so badly politically in such a short span of time because of his failure to keep his promises of reform, imagine how much more Anwar would suffer if he didn't live up to expectations.

Many of the young and idealistic people who have joined PKR have done so precisely because they've bought into his progressive vision for the future. These very same people would leave his party in droves if he starts reneging on his promises. His popular support amongst the masses would dry up and Pakatan Rakyat would disintegrate as his coalition partners desert him.

So, not only do we think he will do all that he has promised to do, we think he will do them in lightning quick fashion. In that sense, he is the antithesis of Abdullah – a glacially slow reformer if there ever was one. Everything about Anwar shows that he can't wait to implement reforms. What is his campaign about, if not reforms?

Now, is this because he truly believes in all these reforms? Or would he implement them for vainglorious reasons – because they are politically popular things to do and he wants a permanent place in the history book?

There's no way to read the hearts of men. We don't know, for example, whether he's absolutely sincere or not when he says that he believes in a free press. But we do know that he has said this on far too many occasions for him to backtrack on it once he comes to power.

At the end of the day, the proof of the pudding is in the tasting. If Anwar does deliver on all his reform promises, does it even matter whether he's sincere or trustworthy in the eyes of his critics? What's important is that he implements reforms. And we have every reason to believe he will do that.

Should Anwar apologise?
Ong Kian Ming and Oon Yeoh | May 26, 08 3:38pm

In a recent interview in The Star, Haris Ibrahim, the initiator behind the People's Parliament, made an intriguing observation. He said that he would like to hear PKR de facto leader Anwar Ibrahim apologise for all his actions (and inactions) during his 16 years in government.
MCPX

"My contention is very simple," he says. "Tell this nation, 'I was wrong. I am sorry and I want to work with you', and I think we can move forward."

Haris added that he had been tracking Anwar's public statements for the last few years and he has yet to see him make an unqualified apology to the nation.

The question of whether Anwar should admit and apologise for certain mistakes or wrongdoings is all the more relevant now that there is a serious possibility he might become the next prime minister if his Pakatan Rakyat coalition takes over power.

anwar pc in hong kong 130208Anwar is no angel nor is he a saint. During his time in the upper echelons of the Umno leadership, and especially as deputy prime minister, he was guilty of doing many of the things he now criticises.

His maneuverings to control the media is well-known in journalism circles. He also allowed for undeserved appointments to top positions in public universities. And he also had his fair share of corporate cronies, details of which can be found in KS Jomo's book ‘Malaysia's Political Economy’.

While Anwar has, on occasion, bucked the Umno way, for example when he spoke up for Lim Guan Eng over his sedition trial and subsequent prosecution, these instances were few and far between and are vastly outnumbered by the times when he made use of the system rather than go against it.

Anwar has been questioned on his role within the administration time and again after his release from prison. In many of these interviews, most notably on BBC's ‘Hardtalk’, he was evasive rather than frank and never once did he own up to his mistakes. As long as he refuses to come to terms with his Umno past, this matter will keep cropping up.

An admission and apology will get this monkey off his back and enable him to start off on a clean slate. In the United States, it's not uncommon for politicians to apologise for their actions in the past. For example, many political and even religious leaders have apologised for their actions (and non-actions) during the tumultuous and historic civil rights movement in the 1960s.

Anwar can do the same but we don't think he will. There are two possible reasons for this. Firstly, he might have the ‘George W Bush Syndrome’ of not wanting to ever admit to any mistakes, much less wrongdoings. Secondly, he might not want to give ammunition to his enemies in Umno.

Love means not having to say you're sorry

Casting himself as a victim of the system (which he certainly was) rather than someone who was complicit in its actions for a long period of time (which he also was) has not harmed his international reputation. But there are enough people in this country who have a knee-jerk distrust of – and in some cases, disdain for – him. For that reason, he should own up and apologise.

The ‘George W Bush Syndrome’ - he has to grapple with on his own. We can't help him there. But if he's afraid that Umno will be able to exploit any mea culpa about past mistakes, we believe it's totally possible for him to apologise in such a way that gives nothing to his enemies.

Anwar could say that he was misled, that he was sucked into the system, that it was a shortcoming on his part to succumb to Umno's ways. He could then say that after suffering through six years of jail and experiencing firsthand just how unfair the system is, he is now a truly changed man. He can then vow never to do such things again. Such a move would warm the hearts of the people who still don't trust him, including Haris Ibrahim.

Perhaps the best opportunity for him to do this would be when (or rather, if) he manages to take over the government. It would make sense for him to do so from a position of strength. An admission of guilt, a heartfelt apology, and then the unveiling of a grand vision for the future would be an excellent start for an Anwar administration.

While we believe he probably can topple the current government in due time, we don't think he will ever apologise for past mistakes. Nothing in his public statements or demeanor suggests he will. For Anwar, sorry seems to be the hardest word.

He probably believes that if he makes all the key reforms he has promised – such as dismantling the Internal Security Act, freeing up the media, replacing the New Economic Policy with something more inclusive – it would be enough to secure his legacy. It's said that love means not ever having to say you're sorry. Anwar probably thinks this applies to politics as well.

Anwar may suffer from the ‘George W Bush Syndrome’ but he also has a ‘Nelson Mandela Complex’. If he wants to be seen as the great leader that he potentially could be, it would do well for him to be big-hearted enough to admit that he was wrong in the past and to apologise for his mistakes.

How the tables have turned
Sharing the nation
By ZAINAH ANWAR
Sunday March 30, 2008

EVERY domination bears within itself the seeds of its own destruction. The fall from power of once dominant political parties (and they can rise again), such as the LDP in Japan, the KMT in Taiwan, the Congress Party in India, and the PRI in Mexico, shows that the exercise of power by its very nature eventually leads to a process of disintegration of the ruling group.

The dictates of power alienate the dominant party’s electoral support base and create factions and frictions within itself that leads to its own decline.

That this finally happened to Barisan Nasional (BN) was a long time coming. The first writing on the wall emerged in 1987-1988 following the bruising leadership battle between Team A led by then Prime Minister Datuk Seri Dr Mahathir Mohamad and Team B in Umno, led by Tengku Razaleigh Hamzah and Musa Hitam.
Orderly process: Members of the public waiting to cast their votes at the recent general election. This time around, the electorate was in no mood to wait for the promised change to come or to even acknowledge that some change has indeed taken place. - Filepic

Public disenchantment with the BN was set in place with the slide towards autocratic rule then. The leadership challenge laid to rest the promise of a “bersih, cekap, amanah” government that had swept the public imagination in the 1982 general election.

The deregistration and split in Umno, the sacking of the Lord President and five Supreme Court judges (three were eventually reinstated), the detention under ISA of over 100 political and civil society leaders under Operation Lalang, the closure of newspapers, the amendments to several laws to close the doors of judicial review – all set in motion the wave of disaffection with the BN leadership and its strong-arm rule.

These events entrenched a decided slide towards authoritarianism and the shrinking of the public space in Malaysian politics. The 1990 general elections saw PAS win over Kelantan, in alliance with Tengku Razaleigh’s breakaway Semangat 46, thus ending 12 years of BN rule that it has not been able to reverse.

But this was seen as only a hiccup by the political elite as new heights of economic success and wealth created by Dr Mahathir’s modernisation vision led to a new sense of well-being and confidence. This led to unprecedented popular support for the BN government in the 1995 general election.

All was forgiven or forgotten, for there was wealth, prosperity and stability to be enjoyed by everyone. Semangat 46 dissolved itself and its Umnoputras at heart joined the father party for a piece of the political and economic pie.

But the financial crisis and the sacking and mistreatment of Datuk Seri Anwar Ibrahim in 1998 changed the public mood once again. All the sins of the past were revisited. The electorate was poised to repudiate BN.

The party still won 77% of the parliamentary seats in the 1999 elections, but Umno suffered its worst ever result then, its seats declining from 94 to 72, while PAS emerged with the leadership of the Opposition, winning 27 seats. Two states fell to the Islamist party and the BN’s popular support declined by 10%.

In a long analysis of the election results, I identified the litany of disgruntlements that the Government could no longer sweep under the carpet.

There was palpable demand for greater transparency and accountability, independence of the judiciary, a free and responsible press, a more participatory and open political system, an end to police abuse and misuse of power, and an end to the intricate web of business and politics that bred cronyism and corruption and where big business always triumphed over community and environmental interests.

The message was clear then. The Malaysian electorate wanted to see change in the way this country was governed, how the law was applied, how politics was conducted and how business was run.

Umno and BN needed to go back to the drawing boards to reinvent themselves to respond to the changing demands and priorities of a well-educated, critical, politically conscious, Internet-savvy, upwardly mobile, younger generation of Malays and Malaysians.

But this process of renewal did not take place and the eventual denouement of a dominant party that refused to change was postponed for another electoral round. For when Dr Mahathir chose Datuk Seri Abdullah Ahmad Badawi as his successor, the electorate was swept by the new leader who promised to be the Prime Minister of all Malaysians, who promised to eliminate corruption and to introduce open tendering for government contracts and who regarded the NGOs as the eyes and ears of the government, instead of the pet poodles of the West as so derisively dismissed by the past administration.

When BN went to the polls in 2004, the new Prime Minister personified that change clamoured for by the electorate.

Those who voted for PAS and other opposition parties in 1999 returned to BN. A kinder, gentler Malaysia and a more open and democratic Malaysian politics were in store as the avuncular Pak Lah won public acclaim and led BN to its greatest electoral victory, winning 199 of 219 parliamentary seats.

So where did it all go wrong in those short four years?

Much has been written. While many of us shared in the Prime Minister’s vision of a democratising, transparent and accountable government and his promise of an inclusive rule for all Malaysians, his failure to deliver on much of this grand vision and his inability to take charge of his change agenda in the face of resistance from powerful centres of power within Umno and its BN partners, within the civil service, the police, and even within his own Cabinet, eventually led to a massive loss of confidence.

It was not supposed to be business as usual. But on the ground, it was much too much of the same thing.

Change, of course, takes time. But given the erupting series of issues of public concern, from snatched bodies to the Lingam tapes, from rising crime to rising prices, local development without public representation, political leaders behaving badly, and allegations of corruption and cronyism that did not abate, the electorate was in no mood to wait for the promised change to come or to even acknowledge that some change has indeed taken place.

As a Muslim democrat who believes in women’s rights and human rights, the turning point for me was the Umno general assembly of 2006. I wrote then of the barefaced racial and religious supremacist oratory at the general assembly that scared and alienated many Malaysians.

The reaction was immediate. I met people who were already planning to spoil their ballot papers or vote for the Opposition.

For many moderate Malaysians, that was the point when Umno crossed the line. A party that prided itself as the bedrock of centrist politics, that from its birth held an inherent belief in the politics of accommodation necessary for this divided multi-ethnic multi-religious society to survive, had presented an extremist face to Malaysians.

That fateful assembly was of course the culmination of over a year of demonising of moderate voices in Islam, of the Government ignoring the demands for respect for the rule of law and fundamental liberties guaranteed under the Federal Constitution, of the failure of the political, administrative and judicial authorities to uphold the law and deal with compassion and fairness the heart-wrenching cases of conversion and religious rights and freedom that saw families torn apart and ethnic minorities feeling assaulted by a seemingly hegemonic majority.

At the local level, my pro-establishment neighbourhood saw its green lungs disembowelled for a mini-Manhattan of skyscrapers, a hotel and shopping complex in the heart of Pusat Bandar Damansara (PBD).

A strip of green hill along Jalan Beringin, which was preserved as a green lung in the original development plan because of its steep gradient, was stripped bare to build multi-million dollar bungalows.

All protests by the community fell on deaf ears as the combined might of City Hall and greedy developers railroaded neighbourhood associations. A meeting at City Hall between the residents association and the developers was deliberately scheduled for the day after Christmas, without prior notice to the residents association.

Thus our voice went unheard, approvals were finalised, and the tree cutting and earthworks began almost immediately.

At a May protest rally against the intensive development in PBD, the Tan Sris, Datuks, and professionals of Damansara, many of whom were Umno, MCA and Gerakan members, were already talking of boycotting the elections or spoiling their ballot papers; many then could still not bring themselves to vote for the Opposition.

But the warning was clear. “Don’t turn us into your enemy,” one Umno member boomed at the rally.

The belief that the mighty BN could never fall because it controlled all levers of power, and the Opposition could never win because it was an unviable alternative, has bred an arrogance of power among many in Government that bordered on contempt for dissenting sentiment.

Many BN political leaders responded to protests and criticisms by taunting the electorate to vote them out if we did not like their policies; they contemptuously dismissed human rights and women’s rights activists by telling us that our voice and our issues did not matter to their constituents in the kampung. When it suited them they saw themselves only as jaguh kampung, conveniently ignoring the national agenda and the national mission.

Even as late as the campaign period, one Chief Minister dismissed the Hindraf rally and the issues raised as irrelevant to his constituency. They even dismissed the new media as irrelevant because their kampung folk don’t own computers and don’t read the Internet.

They were even blissfully ignorant of the power of the SMS as a medium of political persuasion. They had nothing to worry about, they thought, as they controlled radio, television and the mainstream newspapers. Little did they know that the electorate had switched off. Far more accurate results were coming through their SMS than anything any of the television stations could offer that March 8.

They thought they were the Masters of the Universe and therefore they had nothing to learn from anyone. How so out of touch they were.

While Opposition party politicians were busy making new friends and allies, learning about human rights, women’s rights, Islam and democracy, framing their message to capture public angst, updating their blogs, websites, facebook accounts, getting their message out, raising funds and mobilising the crowds through the Internet and SMS, many of the BN politicians remained smug in their imagined invincibility of incumbent power and money, and the roar of their SUVs.

How the tables have turned. Once Umno could put up a banana stump and it could win an election. Now the Opposition can put up a motley of bloggers, activists, petty traders and amateur videographers to stand for a seat and they can win.

Malaysians finally wanted their vote to make a difference.When leaders fail to lead, the rakyat will show them the way. The decline of a dominant party and the new era of more competitive multi-party politics bring much uncertainty, but with it the potential for the strengthening of Malaysian democracy.

If the Opposition does not get its act together, the protest vote of 2008 could remain just that, a protest. But should the Opposition show the political will to submerge its discordant ideologies and ambitions and merge into a genuine multi-ethnic democratic alternative and prove that it can govern well, and the BN has the courage and imagination to reinvent itself, then Malaysian democracy could possibly return to the original trajectory planned by its visionary founding fathers – that of a democratic, modern, pluralist, secular state that celebrates the strength of its diversity through a national life and politics that promotes co-existence and accommodation and eschews a winner-takes-all mentality.

That is the most optimistic outcome.

The jury is very much out on whether our political leaders, be they in the BN or the victorious Opposition alliance, have it in them to see clearly the path the rakyat have already taken.

Zainah Anwar is an activist on women’s issues and was the face of Sisters in Islam for two decades

 I am here, I am here, I am here, I won't resign, says Abdullah

PUTRAJAYA, April 2 — Datuk Seri Abdullah Ahmad Badawi today scoffed at speculations he will step down as prime minister.

Abdullah reiterated his stand that he would not run away from his responsibility as prime minister.

"I am here. I am here. I am here. They make all the speculations that I want to run away, I've resigned. Why should I resign," he said after meeting with Terengganu Menteri Besar Datuk Ahmad Said at his office here.

"My Government has got a strong majority (although) not the two-thirds (majority), but very strong...that is the stand of support. Why I must run away from my entrusted responsibility."

Abdullah was asked to comment on the speculations brought on by prominent Umno members, including Tun Dr Mahathir Mohamad, calling for his head after Barisan Nasional's poor showing in last month's general election.

The BN lost its perennial two-third majority in parliament and relinquished control of Penang, Perak, Selangor and Kedah, besides failing to regain Kelantan from PAS.

Abdullah's absence from the public eye lately also lent credence to the such speculation.

Umno information chief Tan Sri Muhammad Muhammad Taib came to the support of his boss. He said: "It is very unfair to repeatedly ask the prime minister to resign...we have won 140 seats in Parliament compared to 82 by the Opposition...we are only eight seats short of a two-third majority.

"If the prime minister is the cause of our defeat, then we should have lost the whole country to the Opposition. We lost because there were many other contributory factors like the use of blogs and websites to run down the BN."

He said the use of the information and communications technology like the Internet and short-messaging service (SMS) played a crucial role in last month's general election.

"Among other contributing factors were dissatisfaction over candidates picked by BN and Malaysian Indians rejecting the government outright. The move to tarnish the prime minister's name has been going on for a while now and this is being done by an influential retired politician. He even said don't vote for the party but for the candidate. That's not fair," he said, referring to Dr Mahathir's caustic denunciations.

Muhammad said it was important for BN, especially Umno, to find tne root causes for the defeat in the five states and remedy the situation as soon as possible.

"If losing seats is the criteria for a prime minister to resign, then Dr Mahathir should have resigned when during his tenure the BN had lost in Sabah and Terengganu once while it failed to regain Kelantan from PAS.

"Now Pak Lah's work is to rehabilitate Umno and BN. We need to create a level playing field. We also need to use the blogs and the Internet effectively."

He said Dr Mahathir was still very influential, especially after being in power for 22 years, before passing the baton to Abdullah in 2003.

Instead of helping the BN to get back to its feet, the former prime minister was criticising the ruling coalition.

Asked on the claim by Dr Mahathir that Umno leaders were now muzzled and had become "yes men" to Abdullah, Muhammad said the Cabinet still functioned the same way as it did when Dr Mahathir was the prime minister.

"He also alleged that the BN candidates from Umno were picked by someone else but let me assure you that the names of potential candidates were picked by the state liaison chiefs.

"Almost all the names forwarded to the prime minister were allowed to contest. This (the call by Dr Mahathir to Abdullah to step down) is like our own silat master hitting us when we are fighting with someone else. It is very bad for Umno and BN," he said.

Asked if Umno would take disciplinary action against Dr Mahathir for his outburst, Muhammad said this was very unlikely as the former prime minister was "invincible".

"We've taken disciplinary action against many people but this time we are facing an invincible man. He is openly supporting the Opposition, that is too much," said the newly-appointed Selangor Umno and BN chief, succeeding former Selangor Menteri Besar Datuk Seri Dr Mohamad Khir Toyo.

Muhammad, himself a former Selangor Menteri Besar, said there was no reason for Umno to abolish the quota system for nominations to party posts for the election of president, deputy president, vice-presidents and supreme council members.

"This year is election year, it would be like we are in a football match, but the referee stops the match and enlarges the goal post, then allows the match to resume. That would not be right," he added.

Under the quota system, a candidate intending to vie for the president's post must garner at least 58 nominations or 30 per cent of Umno divisions in the country. — Bernama

Empowering women
By: Pauline Puah (Thu, 21 Feb 2008)

Women are still grossly under-represented in politics although gender equality has become a basic principle in society. The solution to this issue is obviously a political one, Dr Mona Lena Krook, assistant professor at the Department of Political Science, Washington University, St Louis tells Pauline Puah.

Why is women’s representation in politics important?

It is important to have more women in politics because they form half of the world’s population. I think it’s quite unfair that the global average of women in parliament is about 17%, which is far away from 50%. And it seems to me undemocratic that so many citizens are excluded from positions of political power. For many people, this is simply a question of fairness. But it also raises questions about women’s interests. It is not that men necessarily ignore women’s issues. It’s just that sometimes they don’t know what these are, right?

For this reason, it’s important to have women there as well – and to have a good number of women in politics, because women themselves are quite diverse. If you have just one, she may not know the experiences of women from other ethnicities, classes or language groups. There are also other people who would say women would bring different values and qualities to the political process that would benefit everyone, which would improve the democratic process more generally. So, there are so many different reasons why it is important to have more women in elected political office.

Generally, why are women still under-represented in politics?

There are many reasons, really. It starts from the fact that women gained political rights later than men. So, what often happens is that men already occupy positions of political power. They had already formed political parties before women had the opportunity to become engaged in politics. So, it has been very difficult for women to break through. Evidence for this can be seen in countries where they have recently created new political institutions, for example, in the change from dictatorship to democracy – when institutions are new, where it is possible for women to enter more directly.

For example, the country in the world with the most number of women in politics is Rwanda. After the genocide, there was a new constitution in 2003 with different policies to include women. They now have 49% of women in parliament, which is quite close to the proportion of the female population. This really shows that the reason fewer women than men enter politics is that women haven’t had the same political rights as men, that their contribution to society has not been fully recognised.

Some people say that these are really cultural reasons for the exclusion of women, but I think the most persuasive explanation is the political one. For that reason, we need a political solution to get more women into politics. In many culturally-conservative countries, there have been many women in politics, as well as in poor countries and rich ones. There is an incredible diversity among countries that have a lot of women in politics.

Do poorer countries have fewer women in politics?

No. That used to be the case before 2000. For many years, the countries that have had the most women in politics have been Sweden, Finland, Norway, Denmark, Iceland and the Netherlands. These had been the top six, not necessarily in the same order.

But what has happened in the last five to ten years is that many countries have adopted various political measures to increase the number of female candidates. So now we see the top ten including not only Finland, Sweden, Norway and Denmark, but also Rwanda, Mozambique, South Africa, Argentina, Costa Rica. It has become a much more diverse array of countries.

What has led to the change?

It has to do with a political policy, namely quota measures. For example, in Argentina, they changed the law to say that all parties had to nominate 30% women. In Costa Rica, the law says the number has to be 40%. In Rwanda, there were one third of seats reserved for women. These policies can be controversial, but they are important in getting more women into politics. There should be a political solution, because it’s a political problem, the fact that there are fewer women than men. I don’t think it is connected with social factors or cultural beliefs.

Talking about Malaysia, do you think we have an adequate representation of women in politics?

The data showed only 9% in the Lower House and about 26% in the Upper House. So in the Lower House, that’s quite low (laughs) compared with the 17% world average. It’s better in the Senate. But this is because these positions are appointed. This definitely shows that some political will or some form of policy is required to get some women in.

In order to move beyond the 9%, parties need to change their selection practices, so that more woman are selected as candidates and later elected to office. In essence, this is probably quite an important step. As I understand it, there were actually a few more women in the last parliament in both houses recently. This shows that we can’t expect a slow upward trend without a strong political commitment. The few gains that women have already made, there is no guarantee that these would continue to increase.

Talking about political will, how do you convince male politicians in a male-dominated political arena?

That is a good point. In many countries around the world, I talk about this quite a bit. Quota laws are often adopted unanimously or nearly unanimously by national parliaments, which shows that many men have agreed to pass a law that is fundamentally against their self-interests. In some way it shows that these men had been convinced that there is good value to democracy and good value to development to have more women in politics.

In Malaysia, parliament is still male-dominated. And sometimes, there are sexist remarks made in the House. Do you think we still have a long way to go?

Well, I think this happens a lot, but can be changed. In Argentina, before a quota law was passed, many women in parliament said men had made sexist comments. But this has changed, now that 35% of the Argentinean chamber is made up of women. So, having a quota made it possible to effect change to a certain degree, so that today more people accept women in positions of political power.

The question is how to be lucky enough (laughs) to get this kind of commitment. It’s quite interesting to see that such commitments often come at election time. This is the time when politicians can be made to realise that women are 50% of voters. In fact, it is often quite easy, if people make this into an issue, so that politicians try to show they are better than others in supporting women. It’s a good opportunity when you can use elections to pressure, to take a stand, to remind politicians that is important for women to participate, so they have to be careful not to be sexist in public.

What can women do to show that they need to be better represented?

It is interesting internationally that in most cases women’s representation, or policies to increase women’s representation, don’t make it to the political agenda until women themselves make it an issue, to say "this is what we want". In many countries women have been able to come together across party lines, ethnic lines, class lines, to say that having more women in politics is a women’s issue. It is something that women can identify as a common interest.

Women’s representation is different from other issues. It’s actually about being part of the political process, and less about individual policies themselves. So it’s important for women to try to overlook their differences to to say that this is what we want, because this is the only way that most parties would come behind this demand. It is difficult for only one party to respond, if women in all parties are making this demand.

You are actually suggesting that women from different backgrounds and political parties work together?

Right. International experience shows that these policies are adopted when women make it an issue and say "hey, this is important". This has often meant that they have had to do most of the work to try to make good arguments about why it’s important to have more women in politics. Without pressure from women, it’s quite difficult to get people to listen to you. It is important to have women who are involved in civil society groups. It’s also important to find women who are outside and inside, you know, women who are already members of parliament. Because then you can work inside and outside to convince men.

If they can’t work with each other in parliament, they can work together with women in civil society to foster an active connection between women more generally in the political process. It doesn’t have to mean all women have to be behind the goal of increased representation, but it’s ideal if they can identify this as an important issue. Evidence from many countries shows it is a good strategy to have the insiders and outsiders working together.

From your observations, do you think the Malaysian government has enough political will (to increase women’s representation)?

I am quite happily surprised to see that the government has adopted a commitment to try to have 30% female participation in decision making. This is quite exciting because they are trying to develop an action plan that addresses not only legislative representation, but also women in the judiciary, local government and other areas. This shows there is a commitment to try to promote women’s participation.

Just recently in an Umno assembly, when a senior female minister (Datuk Seri Rafidah Aziz) told the prime minister that there should be an increased representation of women in politics, she received boos from a predominantly male audience.

Right. One of the problems here is that in order to get more women in politics, you need to have fewer men. Many men in politics realise this, so they say, well, for cultural reasons we can’t have more women. But this is really about their self-interest, isn’t it? They are saying "I don’t want to lose my position".

I think this dynamic explains why national leaders or party leaders are much more likely to come out in favour of quota policies, because they are less likely than other men to lose their seats with such a law. It takes a lot to convince these other men that it’s for the greater good and is morally right.

In some countries, a compromise has been reached through mechanisms to bring in more women while reducing the need to take out men. In some countries, this has meant increasing the number of seats in Parliament. That way you increase the number of women without necessarily hurting men.

In other countries, it has meant implementing the policy in stages, doing a little bit in an election, a little more in the next election, and a little more later. In that sense, you slowly implement the policy without displacing men.

But we already have more than 200 parliamentary seats?

Right, I know (laughs). But for example, in Bangladesh, they have 300 seats and they added on 45 seats for women. This increased women’s representation from 2% to 15% overnight. It wasn’t ideal, but comparing 2%, which is very low, with 15%, closer to the global average, is quite remarkable.

I know that the number of seats is a major political constraint. It’s difficult, but this shows that it’s important to realise it is not an easy thing to do, to increase the number of women in politics. It’s also important to stress that you have to start somewhere. The main issue is that men are already in politics, and they’ve made politics a career, so it is hard to get women in it. This brings us back to the argument that it’s all about political reasons, rather than social or cultural ones.

You don’t think culture is part of the problem?

I used to think that. And there are some scholars who write about that. But we also see, in terms of women in politics, that many very conservative countries have a lot of women. In fact, when you look at national leaders, most of the countries that ever had a female president or prime minister have been among the most socially and culturally conservative.

I do think that for women in general, cultural ideas shape how they are able to live their lives. They can’t get a job, for example. But interestingly, politics is not a job like other jobs. It’s about representation. There’s no course or training or qualification that you have to have to be a politician.

But as a politician, you can have another career. Anyone can become a politician, you know. There’s much more flexibility here in terms of who is qualified to run. And unfortunately people say that women are just not qualified to run for political office, which is not a persuasive reason for their exclusion. There are many things that women would bring to the political process.

So women’s representation is not a problem only in Malaysia, but a global one?

Yes. It’s interesting that since 2000, there have been many other Islamic countries that have adopted different types of quota policies, for example, Jordan, Morocco, Afghanistan and Iraq. There are more, but this is off the top of my head. They all have policies to promote women in politics, mainly reserved seats. Something interesting that just happened in Jordan is that there were six seats reserved for women in 2003, and now in the most recent election, women not only won these six seats, but a woman also won a general seat for the first time. It shows that these policies not only bring women in on the reserved seats, but can also empower women to run for non-reserved seats. Women were never in the parliament of Jordan before that. This shows it’s important to give women these kinds of opportunities.

Reserved seats? You mean seats that are reserved for women?

Yes. In Jordan six seats were reserved for women, that only women could run for. The women who receive the most votes in each district win the seats. A similar system is in place in Pakistan. They have had reserved seats there since the 1950s, with the only gap occurring for a brief time in the 1990s. Today nearly 20% of seats are reserved for women. There have also been seats reserved for women in countries like Egypt, Nepal and India. A few years ago, Indonesia also passed a 30% quota law, although this applied to the candidates nominated, not the exact number of seats. In fact, there are today more than 100 countries that have some type of policy to increase women’s representation. About 80 of these adopted the policies within the last 10 years. This is a major victory, that so many countries around the world have decided to promote more women in politics. That is important. After a while, if Malaysia doesn’t take some steps, there would be only a few countries that hadn’t addressed this important issue.

So it’s important for Malaysia to quickly catch up?

There are many countries that had said this is an important issue. There are also many countries in the same region and with similar cultures and traditions and religious backgrounds that have said having more women in politics is important. So I think that it should be possible to do this here as well, whether or not the ideas come from abroad or are generated internally.

It’s possible to implement it as long as we have the political will to do so?

Yes. I mean, there is evidence from around the globe that shows that if people are serious about increasing women’s representation, they come out with a way to do it, despite all sorts of constraints. So I think it’s possible to do that for sure. And I feel strongly, the more I know about women in politics, that women’s representation is a political problem that needs a political solution. Waiting for society to change, for cultures to change, we will be waiting forever. Politics can also play an important role in changing cultural ideas, social ideas about women’s roles. Women’s experiences and values should be reflected in the democratic process.

Further, in countries where there are more women in politics, many of them find that they are contacted by a lot of female voters who say, ‘I could never raise this with a male politician, but I feel I could raise it with you’, in terms of important issues like domestic violence, healthcare and education. They are more willing to go to the women, even to women politicians in a different district who are not even their own representatives. That shows that having more women in politics is not just good for the women who win office, but also for female voters, who feel more connected as a result to the political process. It’s good for democracy to have people more engaged.

Any ideal example that Malaysia can learn from?

There are so many good examples around the world. It’s important to look at countries that have adopted various kinds of quota policies. It depends though on what kind of policies we might find to be the most useful. The strategy that would work in Malaysia would be to pass a legislative quota, a quota law. Most countries have adopted a quota law, usually a 30% quota, but it’s important to design these in a way that makes sure they apply to electable positions. It’s important to identify what kind of districts the quotas have to apply to. There are some countries where the law says 30%, but women were put in the bottom third of the list or in districts where parties did not think they were going to win.

Experiences of other countries show that it’s important to say that these have to be, for example, the districts that the party won in the last election, or districts where the party thinks it is going to win in the next election. Many countries have taken 10 years to figure out how best to do it.

Another option is through reserved seats, which can work very well with the type of electoral system you have in Malaysia. The question is how to do this, within the existing seats or by adding on to seats, whether those people are elected or appointed. There are so many examples in terms of good and bad practices, what has worked or what hasn’t. It would be difficult to say exactly.

There are some good cases for having reserved seats, such as in Rwanda, Pakistan and Afghanistan. They all have reserved seats, between 20 and 30% women in parliament. In terms of the quota law, basically all parties have certain percentages of candidate. There are countries like Argentina, Belgium as well as Indonesia. That shows that many countries view 30% as a good figure.

In any case you want to make sure you adopt a strategy between 30% to 50%.

Some male parliamentarians would argue that women and men should be in the same position and question why women should be given more winnable or electable seats?

Because they say promoting women would disadvantage men and that they both should have the same opportunities? This is an interesting tendency in other countries as well. For me, the question is how you understand equal opportunity. Some people think equal opportunity is everyone having the legal right to run for office. If you are good enough, you will get to the top. But patterns in many countries show that there are distortions in practice and thus that this type of equal opportunity is simply not enough. You need to have the support of your party. You need to be given the opportunity and resources that actually give you truly equal opportunities. We want the equal opportunity that means something.

Equal opportunity to me is not just the right to run for office, but the right to hold the office. And we need to have a much deeper understanding of what equal opportunity is. Women should be equally distributed to the districts with electable positions. In countries where they have adopted quota policies, but women end up in unwinnable districts, why bother to do this?

This happens because male politicians say they believe in democracy and inclusion, but they in fact don’t want it when it affects them negatively. It’s important to convince people to see the bigger picture instead of their own selfish interests. It’s important to show some commitment to that, especially in support of democracy and equality and representation and inclusion. None of those things mean anything if you don’t actually give people that opportunity, if you give them only lip service.

It’s quite easy for people in dominant positions to say "oh, we gave you the opportunity, you just didn’t want it or didn’t take it or were not good enough for it". But none of those things are true. You find many male politicians saying "I would like to have women in politics, I think it’s a good idea". But when enough women come forward, they say "I would like to have you, but voters would not want to have a woman". This is like saying "oh, I’m a good person, it’s just other people, and it’s their fault, really". But the evidence shows that all of these objections are simply not true. A lot of women don’t come forward as candidates because they see that women are not included.

So political leaders have to take the responsibility for showing that they are truly open to having women in politics. In many countries, it is actually the case that the women who do run for office are in fact more qualified then the men. They have a higher level of education, or a better profession. Also, in many countries, if you compare male with female candidates, women tend to win at a higher rate than men. Voters find women to be desirable candidates. They don’t show bias against women. So, it actually turns out to be bad electoral strategy for parties that do not take in these qualified politicians. Saying that voters don’t want to vote for women is simply a poor excuse, employed for selfish ends. Yet, people say it so many times that many believe this to be true, even if it’s not, no matter how many times you say it.

--- end ---

Polls panel 'has good track record'
NST Online » Local News
2007/11/21
By : Wan Hamidi Hamid

SINGAPORE: There is no reason for anyone to doubt the sincerity and capability of the Election Commission (EC), Datuk Seri Abdullah Ahmad Badawi said.
The prime minister said the EC had proven itself in previous elections despite allegations of unfair conduct from the opposition.

"What I want to see is a fair, free and democratic election. This will enable all voters to come out and vote.

"If there are those who don't want to vote, what can we do about it?

"The EC has handled elections for so long.
"Throughout our history of elections, there were many times the opposition had won," he told Malaysian journalists on the sidelines of the Asean summit here yesterday.

Abdullah was asked to comment on EC chairman Tan Sri Abdul Rashid Abdul Rahman's remarks on Monday that he was willing to resign if the political parties and other participants of the illegal Nov 10 rally could provide proof of irregularities such as vote-rigging during elections.

The prime minister said he not only believed the EC was capable of handling the next general election but also praised the body for having conducted fair and democratic elections in the past.

He cited examples when the then opposition Gerakan took over Penang in the late 1960s, the then opposition Parti Bersatu Sabah (PBS) capture of Sabah from the Barisan Nasional in the 1980s and the swing between BN and Pas in Kelantan for the past 50 years, as well as Pas' win in Terengganu in 1999.

"Sometimes you win, sometimes you lose. The most important thing is for the people to be free to make a choice.

"I don't understand why the opposition and others are saying we're not being fair. The outcome of any election is determined by the people.

"As the leader of the winning party, of course, I want to see us achieving a credible victory. Let the people decide," Abdullah said.

According to sources, Abdul Rashid spoke out because he was upset with the opposition's continuous demands despite efforts by the EC to ensure fair and free elections.

Bersih, a coalition of opposition parties and some NGOs, demanded the use of indelible ink to prevent multiple voting, the removal of phantom voters from electoral rolls, the scrapping of postal votes and equal access to the media including privately-owned media.

Even after almost all the demands had been fulfilled and the EC updated the details of registered voters, the opposition continued with the campaign to discredit the EC, said a source.

"That's why Rashid is very upset with them and even offered to resign if they showed proof of irregularities.

"For him, if they can prove any wrongdoing, just go to court. Why disrupt others with street demonstrations?" the source said.

Rashid had said he was sad when the opposition kept repeating the allegations without any proof.

"You are only giving out a bad image of your own country. I have been through six general elections and to date, no one has ever approached me with evidence of irregularities," he was quoted as saying on Monday.

Bersih's memorandum to the Yang di-Pertuan Agong was submitted by DAP's Lim Kit Siang, Pas president Datuk Seri Abdul Hadi Awang and Parti Keadilan Rakyat de facto leader Datuk Seri Anwar Ibrahim to an Istana Negara official on Nov 10.

The king has categorically denied condoning the rally as claimed by certain opposition members and neither was he agreeable to the way the illegal mass demonstration was held.

Behind the colour of change
Azly Rahman
Nov 21, 07 11:21am

DR AZLY RAHMAN is a transcultural philosopher rooted in the tradition of Critical and Chaos Theory. Born in Singapore, raised in Johor Baru, he was a child of Malaysia's experiment in humanistic education: Maktab Rendah Sains MARA Kuantan.

A member of The International Honor Society in Education, Azly holds a Doctorate in International Education Development from Columbia University, New York City, and Masters in four areas: International Affairs, Education, Communication, and Peace Studies.

He has taught in Malaysia and the United States in a multitude of settings and in diverse fields such as Politics/International Relations, Education, American Studies, Philosophy/ Humanities/Cultural Studies, and History/Foundations of Civilizations.

His interest lies in deconstructing 'hegemony and totalitarianism' and to explore the possibilities of creating one's personal republic that will challenge and transform the postmodern state.

He can be reached at: aar26@columbia.edu

In Malaysia, are the leaves turning yellow, too? Are we witnessing the total deconstruction of the race-based political ideology and a breakdown of the economic and social relations of production?

Is the nation being haunted by a ‘yellow wave’ of change demanded by those alienated by the developmentalist agenda that seems to have favoured a privileged segment of society?

At the speed of how things are turning yellow, it seems that we have to content with such signs and symbols of systemic change as a reality. 

Around three decades ago, the ‘yellow culture’ carried a negative connotation especially in relation to the invasion of the ‘decadent aspects of the western culture’. Today, we see a deconstruction of this perception; a mental revolution that is taking the colours of the constitutional monarchy as a symbol of war against the colours of the present race-based regime.

It is a war over the definition of ‘democracy’. It includes the question: who has the monopoly over Malaysian democracy? Can we continue to think like dinosaurs in an age of dolphin-think?

One of the nagging questions for our nation as we enter this challenging period for civil rights is this: what is Malaysian democracy and what is its future?

Key spokespersons of the government think that we are doing fine with the system and that we need to only improve the process.

Key spokespersons representing the wave of change and who challenge the ‘system’ think that the system is no longer working, as we face the realities of changing race-relations.

These are contending views of what ‘Malaysian democracy’ is - an interpretation of what the process of development of the people, by the people, for the people means. These are the views of the words ‘demos’ and ‘kratos’ of what a ‘government of the people’ should mean.

Democracy is rooted in economics. Our existence - including that of the king and the pauper, rebels and reformists, the Sultans and the hamba sahaya - as Marx would contend, is defined by the economic condition we are in or have created.

In Malaysia, the condition is defined by the pie baked by those who created the New Economic Policy that is now becoming a system of the New Economic Plutocracy.

Systemic corruption

I think the root of the showdown between the ‘yellow wave’ movement and the ‘red- faced’ power structure is economic in nature - true to the idea that we are all economic beings or of the specie homo economicus.

We still talk about an economic pie as if it is a constant. The faulty tool is popular with policy makers who are bankrupt of alternative perspectives of looking at systemic change. They continue to defend the indefensible in a time when change is imminent and coming at a very fast pace.

Even newer generation of race-based leaders are ill-equipped with the fundamental character of these radical changes. They use rock logic to meet the demand of a fluid society. Rock logic includes the use of force to prevent demands to these changes.

We must now abandon the metaphor of the pie; one that is increasingly becoming synonymous with the race to meet the gains of material standards at the expense of the real issue - distributive and regulative justice. We ought to adopt a new form of justice that cuts across racial lines and one that looks at the poor in the eye and into their souls.

That form of justice will meet our nation's physical, emotional, and metaphysical needs. The present wave of dissatisfaction is not only an emanation of frustration over the issue of the judiciary and confusion over the line between the Legislature and the Executive; it is an emanation of a class-based issue, of which we are in denial.

Race is merely a sugar-coating of that nagging argument of this and that rights of this and that people; a coating that has become calloused with fossilised viruses that have corrupted the entire system since the British handed Malaya her independence on a silver platter. Race is a convenient basis for argument as it masks the issue of the ownership of power, knowledge and ideology.

Class-based system

The new issue facing us is class-based. We can longer use race and its sentimentality as a perspective to analyse what is gravely wrong with the developmental project we are pursuing.

We have subdivided ourselves into classes of the rich and poor from all the major races and the classes of those who owns the material and cultural capital. Our pattern of consumption, our daily grind, the kind of car we drive, the school our children go to, and how widely travelled we are, all reflect the class we are in.

But our politics is renewed every now and then to re-state the commitment to "correct the imbalances" using econometrics, without engaging in a sustained deep inquiry into the harder reality of living.

We are engaging in another exercise in keris-wielding, to renew of political-economic spirit that wishes to see the creation of more and more multi-million perhaps multi-billionaire Malays, Chinese, Indians, and other pribumi, but fail to inquire into the impact of such continuing policies that will further divide us into classes. No longer do arguments on racial imbalances, to me, seem to be attractive. Classes create antagonism.

Revelations of the issues of the distribution of wealth as in the multitude of unresolved cases of high-level corruption reflect how much public interest is intertwined with personal greed.

It reflects how much those in power invoke the mantras of "economic progress for this or that race" yet create a system that benefits this and that person/s. This is the game of equity we play. Our voters are either ignorant of the nature of interlocking directorate-ship in politics, or are too comfortable playing this game of patronage politics.

We somewhat do not get the clearest picture of what 30 years of ‘growth by equity’ policy has taken shape; who benefits? how are the benefits distributed? and why have the benefits of growth not trickle down as they theoretically should?

Price of progress

The human cost of development has taken its toll on the nation - that of those marginalised and lost-in-the-numbers game of the economic policy we design. We are startled by the nature of by-products of developments such as:

• The growing poverty (urban and rural) among Malaysians of all races, and we will also see rising poverty among immigrants who are helping build our economy;
• An increasing percentage of drug addiction among the Malays - especially those marginalised by an uncaring, uncreative, and uninspiring educational system that measures people by numbers and by truncated notion of achievement alone - and I am sure of other races in general;

• An increasing number of persons living with HIV/Aids as a possible result of the nature of the economic developmental paradigm we have constructed and the nature of schooling system that promotes a few and marginalises and alienates many;

• A growing population of our youth disenfranchised in our school system as a result of the slow-paced growth of teaching-skills acquisition - skills that are needed to make the school a very happy place one wherein children do not get bored and translate their boredom into drug addiction or gangsterism;

• A growing breed of our elected representative that cannot articulate logical analysis, prognosis, diagnosis to issues of distributive and regulative justice, but instead choose to continue to verbally clobber each other based on race sentiments;

• A clear continuation of the political paradigm in which our politicians are engaged - one that needs lots of money to keep one's constituency happy and even worse, to keep one's political position stronger;

• A clear picture of how our society has developed - the dangerous growth of classes of the multi-cultural rich and the multi-cultural poor and the relegation of the multi-cultural middle class into a new class of ‘urban poor’ whose life is tied to an increasingly dangerous pattern of hyper-modern consumption;

• A picture of the breaking down of families as a result of the changing patterns of our economy after the implementation of the NEP - there’s too much drive in human beings to earn more to make the first million Ringgit so that they will be ‘on par with the other races’. This has resulted in a dangerous form of psychological breakdown as a consequence of the mental breakdown of modern life. The work ethic imposed on Malaysians by global companies, especially profit-driven ones from the advanced nations, have impacted the way we look at work, juggle family life, pursue leisure and pleasure, and the way we create or break families;

• A dangerous trend of a breakdown of race relations, reflected in the nature and style of arguments we engage in, be they in Parliament or in our public schools - this is a continuing pattern of mistrust of the other race based on the struggle to outwit and out-greed each other in our pursuit of material wealth;

• A continuation of the grooming of political-economic dynasties based on the struggle to protect family interests as well as to create more wealth so that money can further sustain power - the idealism and ethics of the early years of Independence are now in the dustbin of history; we now watch a saga of what looked like a war between the Jacobins and the Girondins during the French Revolution, only this revolution is played silently, not for the future well-being of peoples of all races, but for the purpose of empire-building.

There are possible inroads to the long-term economic solutions we can undertake in order to rekindle the spirit of restructuring society and eliminating poverty.

Our current pursuit is creating the opposite effect. It is still-based on the protection of the interest of each race, ideologically derived form the British legacy of divide and rule.

The current path is creating classes of the extremely wealthy few and a growing population of poor. It is creating classes of the extremely wealthy few and a growing population of poor.

We need to go back to studying human nature and what kind of society we wish to recreate. The wealthy class wants to be ensured of control of economic resources so that the system can be maintained and be fine-tuned.

To meet the challenges of a nation that is beginning to think like a dolphin, we have to reject the notion of using force and violence to promote Dinosaur Age thinking.

I suggest we abandon Dinosaur Age thinkers in our march for real-time progress; one in which dolphins surf the yellow waves - elegantly and intelligently.

Google, Yahoo! commit to ethical code
Human rights code of conduct to be drawn up
By OUT-LAW.COM → More by this author
Published Tuesday 23rd January 2007 10:04 GMT

Some of technology's biggest names are joining together to create a code of conduct to protect freedom of expression online. Google, Microsoft, Yahoo! and Vodafone will create a human rights charter along with academics and social groups.

The move may counter the heavy criticism which Yahoo! and Google in particular have faced over their practices in politically oppressive regimes such as China. Yahoo! helped to identify a journalist in China who was later arrested and convicted for emailing dissident comments to the US, according to the court papers in that man's trial.

Google has also faced opposition to its practices in China. The company, whose famous corporate motto is "don't be evil", has provided China with a search engine which is censored in line with Chinese political policy.

Those two companies are now working with the Berkman Centre for Internet and Society at Harvard Law School, Human Rights Watch and the Centre for Democracy and Technology (CDT) in Washington on a code of conduct.

The companies announced their "intention to seek solutions to the free expression and privacy challenges faced by technology and communications companies doing business internationally", according to a joint statement.

Later this year the group of companies and non-governmental organisations (NGOs) will produce "a set of principles guiding company behaviour when faced with laws, regulations and policies that interfere with the achievement of human rights", said the statement. Those that commit to those principles will be held accountable to them, it said.

"Technology companies have played a vital role building the economy and providing tools important for democratic reform in developing countries," said CDT executive director Leslie Harris. "But many governments have found ways to turn technology against their citizens – monitoring legitimate online activities and censoring democratic material."

"It is vital that we identify solutions that preserve the enormous democratic value provided by technological development, while at the same time protecting the human rights and civil liberties of those who stand to benefit from that expansion," said Harris.

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

Ex-ISA Detainee Gets RM2.5 Million For Wrongful Arrest And Detention
General
October 18, 2007 18:42 PM      

KUALA LUMPUR, Oct 18 (Bernama) -- For the first time, a former Internal Security Act (ISA) detainee won damages of RM2.5 million in a suit filed against the police and the government over his arrest and torture in 1998.

Abdul Malek Hussin, 51, was awarded RM1 million in general damages for wrongful arrest and detention, RM1 million in exemplary damages, RM500,000 in general damages for assault and ill-treatment and eight per cent interest from today and costs by the High Court Thursday.

Justice Datuk Mohd Hishamudin Mohd Yunus said Abdul Malek was entitled to the damages because his arrest at 10pm on September 25 1998 and 57 days of detention under the ISA were unlawful as they were done mala fide (in bad faith).

He said the interrogation carried out on Abdul Malek in Bukit Aman was political in nature for intelligence gathering for political purposes and had nothing to do with genuine concern for national security.

"The behaviour of the defendants is inhumane, cruel and despicable, as the plaintiff (Abdul Malek) was not just arrested and detained unlawfully for 57 days but was also subjected to a vile assault, unspeakable humiliation and prolonged physical and mental ill-treatment," Hishamudin said.

Abdul Malek, chairman of Malaysians for Free and Fair Election (Mafrel), a non-governmental organisation, claimed that he was ill-treated by the police.

He claimed that besides being slapped three times and blindfolded with his head forcibly covered with a T-shirt and forced to bend forward with his head between his legs in the car taking him the Kuala Lumpur police headquarters, he was also stripped naked in an air-conditioned room and a urine-smelling liquid was forcefully poured into his mouth, he said.

His private part was hit and an object pushed against his anus and he was made to stand in front of an air-conditioner and drenched with water for almost an hour, he added.

Abdul Malek, who is also former PAS executive secretary, filed a suit in March 1999 seeking RM30 million damages for alleged police brutality while under detention in connection with the detention of former deputy prime minister Datuk Seri Anwar Ibrahim for alleged involvement in activities that could threaten national security.

He was released unconditionally on November 21 1998. He named Special Branch police officer ASP Borhan Daud, the then Inspector-General of Police Tan Sri Abdul Rahim Noor and the Malaysian government as defendants.

Hishamudin said the award for exemplary damages was necessary to show the abhorrence of the court of the gross abuse of an awesome power under the ISA and that any gross abuse of that power must be visited with an award of exemplary damages to ensure that the extent of abuse was kept to the most minimal, if not eliminated completely.

"The Special branch department of the police force must not only be neutral but must also be seen to be neutral and non partisan. It must be above politics.

"The practice of torture of any kind is to be detested. The despicable conduct of the then Inspector-General of Police, Tan Sri Rahim Noor, was shameful and a disgrace. He had shown an extremely bad example to the thousands of men under his charge.

"The practice of torturing detainees by the police force can never and should never be condoned by the courts. The court must show its utmost disapproval in no uncertain terms," the judge said in his 41-page judgement which he took about 2 hours to read out in court.

Hishamudin also held that the police did not properly inform Abdul Malek of the grounds of his arrest as required under Article 5 (3) of the Federal Constitution and that Borhan had failed to satisfy the court with sufficient particulars of Abdul Malek's activities to justify the arrest and detention.

Outside the court, Abdul Malek who was present with his wife and children said: "I don't say that I'm happy. This is a matter of honour, not money. The ISA must be abolished. There is no reason for its existence in the country."

Abdul Malek's counsel R.Sivarasa said this is the first case where an ISA detainee had successfully won a legal suit for unlawful detention.

This showed that the court was prepared to step in when police abuse their powers.

Hishamudin, in his judgement, said that Borhan's bare assertion that Abdul Malek was directly involved in illegal assemblies which ended up with rioting and public order, was without particulars as no specifics were given on how Abdul Malek was directly involved.

On the other hand, Abdul Malek had furnished unchallenged evidence that at no time during his interrogation in Bukit Aman were any specific questions put to him that he was connected to any violent act of any kind or planning any specific violent act.

He said Abdul Malek gave detailed and unchallenged evidence of the content of the interrogations which he endured for 19 days in Bukit Aman relating, among others, to his relationship with Anwar and his role in the reformasi movement.

The judge said Abdul Malek had succeeded in proving on the balance of probabilities that he had been assaulted and this was supported by medical evidence.

The judge also said that from the time Abdul Malek was brought to the Kuala Lumpur police headquarters until he was handed to the Bukit Aman officers at 2pm on September 26 1998, he was never placed in a lock-up, breaching the Lockup Rules 1953 which required all prisoners to be placed in a lock-up after 6.30pm and no interrogation was to be conducted during these hours.

He said Borhan's version that there was a substantial block of two-and-a-half hours of unexplained time where nothing happened -- between 1.20am and 4am -- was highly questionable.

The police conduct of not keeping Abdul Malek in the lock-up and their contradictory answers invited the inference that they were covering up some unlawful act in relation to Abdul Malek, he said.

The conduct by the police in denying Abdul Malek access to a lawyer also showed mala fide on the part of the police, he added.

-- BERNAMA

Ex-ISA detainee gets RM2.5m
NST Online » Local News
2007/10/19

KUALA LUMPUR: The High Court yesterday awarded RM2.5 million in damages to a former Internal Security Act detainee.

Abdul Malek Hussin, 51, is to receive RM1 million each for general and exemplary damages and another RM500,000 in aggravated damages for 57 days of detention in 1998.

Judge Datuk Mohd Hish-amudin Mohd Yunus in his judgment concluded that Mal-ek’s arrest and detention were unlawful as he had not been properly informed of the grounds of his arrest as required under the Federal Constitution.

“His case is more credible and ought to be accepted. The court was not given specifics of Malek’s activities during an illegal demonstration to justify his arrest and detention.”

He added that Malek’s details of his interrogation, where he was told by his interrogators not to file a habeas corpus application, showed it was political in nature and nothing to do with real concern for national security.
He said the police report made by Malek after his detention was also truthful.

“I regret to remark that the investigation carried out by Senior Assistant Commissioner 1 Hadi Ho Abdullah in respect to the plaintiff’s police report was nothing but a sham.”

Malek, who was detained from Sept 25 to Nov 21, 1998, filed a RM30 million suit against Assistant Superintendent Borhan Daud, the then inspector-general of police Tan Sri Rahim Noor and the government on March 16, 1999.

In his writ of summons, he alleged that after his arrest, the police had forced him to strip, and blindfolded and handcuffed him before assaulting him.

The court heard from Dr Vasantha Ponniah that she examined Malek and confirmed he sustained injuries.

Full text of judgement
Nation
Friday October 19, 2007

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (CIVIL DIVISION) 

CIVIL SUIT NO. S3(S5)-21-20-1999 

Plaintiff
ABD. MALEK BIN HUSSIN 

Defendants
(1) BORHAN BIN HJ DAUD
(2) KETUA POLIS NEGARA
(3) KERAJAAN MALAYSIA 

GROUNDS OF JUDGMENT
In the present case, the plaintiff is claiming against the defendants for damages for the tort of false imprisonment as well as for the tort of assault and battery. 

At the material time the plaintiff was employed in various capacities in a number of companies. The first defendant at the material time was a police officer with the rank of Assistant Superintendent of Police attached to the Special Branch Department, Police Headquarters (IPK), Kuala Lumpur. The second defendant is the Inspector-General of Police. The claim against the third defendant, that is the Federal Government, is for vicarious liability in respect of the torts of the first and second defendants. 

Briefly, the plaintiff alleges that he was unlawfully arrested without a warrant of arrest by a group of Special Branch officers led by the first defendant at about 10 o'clock at night on 25 September, 1998. The arrest occurred in front of his house, as he was returning home and after he had just alighted from a car driven by a friend. He was not clearly told by the first defendant of the reason for the arrest. He was only vaguely told that he was arrested under the Internal Security Act. The plaintiff alleges that at the time of arrest he was handcuffed and given a hard slap thrice by the first defendant when he was unable to show the first defendant the location of his car. After the arrest, the first defendant and his men entered the plaintiffs house without a search warrant and seized several documents and items. He was then blindfolded and taken to the Ibupejabat Polls Kontinjen ('the IPK'), Kuala Lumpur, where in a room at the first floor he was stripped naked, humiliated, and subjected to prolonged mental and physical torture by the first defendant together with the then Inspector-General of Police, Tan Sri Rahim Noor, and several other police personnel. The ordeal lasted until 4 in the morning. He was denied medical treatment for several days. Only on 29 September that he was taken to see a doctor, Dr. Vasantha (SD7). 

It is the allegation of the plaintiff that he was taken to Bukit Aman the following day after the arrest (26 September 1998) and at Bukit Aman he was interrogated for 19 days. All in all he was in police custody for 57 days until his release on 21 November 1998. 

While in police custody he was denied access to counsel. He was also denied access to his family members. His family was allowed to see him only after he was kept in custody for 27 days, and throughout the entire 57 days under detention his family was allowed to see him only twice. Throughout these 57 days of detention he was kept under solitary confinement and, as said earlier, was interrogated for 19 days - interrogated not on matters affecting the security of the country but on political matters. 

A. Whether the arrest and detention of the plaintiff were lawful
As I have ruled in Abdul Ghani Haroon v. Ketua Polls Negara & another application (No: 3) [2001] 2 CLJ 709, the cardinal principle is that every detention is, prima facie, unlawful and the burden of proof is on the detaining authority to justify the detention (see also R. v Home Secretary, ex parte Khawaja (1983) 2 WLR 321). 

In my judgment, the arrest and detention of the plaintiff was unlawful for the following reasons: 

(a) The plaintiff was never properly informed by the first defendant of the grounds of his arrest as required under Article 5(3) of the Federal Constitution. 

(b) The first defendant failed to satisfy the Court with sufficient particulars and material evidence of the plaintiffs activities to justify the arrest and detention of the plaintiff under section 73(1) of the Internal Security Act, 1960.('the ISA'). 

(c) The arrest and detention of the plaintiff were mala fide. 

Article 5 of the Federal Constitution states - 

5. Liberty of the person.
(1) No person shall be deprived of his personal liberty save in accordance with the law. 

(3) Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice. 

Section 73 (1) of the ISA reads - 

73. Power to detain suspected persons.
(1) Any police officer may without warrant arrest and detain pending enquiries any person in respect of whom he has reason to believe - 

(a) that there are grounds which would justify his detention under section 8; and 

(b) that he has acted or is about to act or is likely to act in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life thereof. 

It is to be observed that the above provision makes reference to section 8 of the ISA. 

Section 8(1) provides - 

8. Power to order detention or restriction of persons. 

(1) If the Minister is satisfied that the detention of any person is necessary with a view to preventing him from acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life thereof, he may make an order (hereinafter referred to as a detention order) directing that that person be detained for any period not exceeding two years. 

The plaintiff was not informed of his grounds of arrest
In respect of an arrest under the ISA, the legal and constitutional duty on the part of the arresting authority, as imposed by Article 5(3) of the Federal Constitution, is to inform the person arrested of the grounds of his arrest. This duty must be discharged in a manner that makes the said constitutional protection meaningful. This means that the detainee must be told briefly and in clear and simple language that he is being arrested because there is reason to believe that his activities (the gist of which should be intimated to the detainee) have been such as to justify his detention in order to prevent him from acting in a manner prejudicial to the security of the country (in the context of the present case, and for the sake of simplicity, I do not propose to touch on the other two alternative limbs as provided for under section 8 of the ISA). This, however, would only satisfy limb (a) of section 73(1). In addition, in order to also satisfy limb (b) of section 73(1), the detainee must also be told that there is reason to believe that he has acted or is about to act or is likely to act in a manner prejudicial to the security of the country. Here too, the detainee must be given, albeit, in a brief form, some idea in substance (that is to say, some essential particulars) in what way he has acted or is about to act or is likely to act in the manner alleged to be prejudicial to the security of Malaysia. It is my view that, in order to satisfy these two limbs/grounds, it does not suffice to merely parrot the provisions of section 8 or section 73(1) (b) without some indication to the detainee of the substance of what he has done or of what he is about to do or of what he is likely to do. 

At this point, no detailed particulars need to be informed to the detainee but at least he will know in essence the reason he is being arrested. In this regard, I refer to my decision in the case of Abdul Ghani Haroon v. Ketua Polls Negara (No. 3) [2001] 2 CLJ 709. 

In the present case, the plaintiffs evidence is that all he was told at the point of arrest (and even then he was told only after he asked) was that he was being arrested under the ISA. The first defendant, however, says as follows: 

Saya memberitahu plaintif bahawa dia ditangkap di bawah Akta Keselamatan Negara 1960 kerana terlibat dengan kegiatan mengancarn dan memudaratkan keselamatan Negara. 

He also says that after taking the plaintiff to the IPK, KL, and after lodging a police report "saya kemudiannya telah menyediakan dokumen [a form exhibited at page] of Bundle B] di bawah Perkara 5(3) Perlembaguan Persekutuan dan memberi penjelasan kepada plaintif tentang alasan tangkapannya". 

Even assuming for the moment that I were to accept the first defendant's version, still, for the reasons that I have stated above, this cannot be sufficient compliance with the stipulation of Article 5(3) of the Constitution read together with section 73(1) of the ISA. His words do not convey to the plaintiff the essence of what the plaintiff is alleged to have done that his detention is necessary to prevent him from acting in a manner prejudicial to the security of Malaysia. 

The first defendant also relies on the form at page 1 of Bundle B as compliance by the arresting office of the need to inform the grounds of arrest under Article 5(3). The form merely states - 

Saya Borhan bin Hj Daud (G/7624) pada 25 September 1998 jam 2310 hrs telah memberitahu kamu Abdul Malik bin Hussin No: K/P: 560814-06-5467 sebab-sebab kamu ditangkap di bawah seksyen 73(1) Akta Keselamatan Dalam Negeri, 1960 iaitu:- 

(a) Saya mempercayai ada alasan-alasan untuk menahan kamu di bawah seksyen 8 Akta Keselamatan Dalam Negeri, 1960; dan 

(b) Saya mempercayai kamu telah bertindak dengan cara yang memudaratkan keselamatan Malaysia. 

It is my judgment that, in the light of what I have said above, this form cannot be taken to be due compliance with Art. 5(3). In relation to compliance under section 73(l)(a), the form completely fails to meet the requirement as it mechanically parrots the words of the provision of section 73(l)(a) without showing that the arresting officer had directed his mind to the requirements of section 8. I had pointed out this requirement in Abdul Ghani Haroon (No. 3). 

The form also fails in terms of the section 73(1 )(b) requirement, since the plaintiff was not given the slightest clue or intimation as to what he had allegedly done or was likely to do or was about to do that was prejudicial to the security of the country. 

Since the plaintiff was never duly informed of the grounds of his arrest, as he was entitled to under Article 5(3) of the Constitution, it follows that 'die arrest was unlawful. 

In dealing with Article 5(3) of the Constitution, I am mindful of the fact that I am presently dealing with the fundamental liberty of the citizens. The preservation of the personal liberty of the individual is a sacred universal value of all civilized nations and is enshrined in the Universal Declaration of Human Rights and Fundamental Freedoms of 1948. Article 5(3) of the Federal Constitution guarantees every person in this country of his personal liberty and protection from arbitrary arrest particularly arbitrary arrest by the State. As I have said in Abdul Ghani Haroon (No: 3), and I will say it again now, Judges are protectors of the fundamental liberties of the citizens and that this is a sacred duty or trust which Judges must constantly uphold. 

The first defendant failed to satisfy the court with sufficient particulars and material evidence 

In Abdul Ghani Haroon (No. 3). I had ruled that - 

the arresting officer must, in his affidavit, furnish, not necessarily detailed particulars, but some reasonable amount of particulars., not only for the purpose of satisfying the court that he has some basis for the arrest but also to be fair to the detainee - to enable the detainee, who believes that he is innocent, to defend himself. 

This approach has since been endorsed by the Federal Court in Mohatnad Ezam bin Mohd Noor [2002] 4 MLJ 449. In Mohamad Ezam bin Mohd Noor the Federal Court declared the correct law as requiring an objective test. 

In the present case, the first defendant, therefore, has to provide sufficient material evidence and particulars to show the basis of his reason to believe that the detention of the plaintiff was necessary to prevent him from acting in a manner prejudicial to the security of Malaysia (the s. 73(l)(a) limb) and also to show the basis of his reason to believe that the plaintiff had acted (or was likely to act or was about to act) in a manner prejudicial to the security of the country (the s. 73(1)(b) limb). 

In the present case, however, this was not done. Instead, all the first defendant could say in his evidence was the bare assertion that - 

Plaintif terlibat secara langsung di dalam perhimpunan haram yang di mana setiap perhimpunan haram tersebut diakhiri dengan kacau bilau dan mengganggu ketenteraman awam. 

No material particulars or evidence was ever produced to the Court to substantiate the above assertion. The dates and places of the alleged "unlawful assemblies" were never stated by the first defendant. It was never even shown by the first defendant that the so-called "unlawful assemblies" were actually unlawful in the first place. It was never shown by the first defendant that each and every one of the "unlawful assemblies" ended up with rioting and public disorder as he alleged. No specifics were ever given as to how the plaintiff was "terlibat secara langsung" in those assemblies or, if even he was, in what manner. I am not suggesting of proof beyond reasonable doubt but of the existence of material evidence and particulars to support a reasonable belief. Hence, the allegation by the first defendant was a bare assertion without particulars. 

The plaintiff, on the other hand, furnishes unchallenged evidence that at no time during his interrogation in Bukit Am an were any specific questions put to him that he was connected to any violent act of any kind or planning any specific violent act. He gives detailed and unchallenged evidence of the content of the interrogations he endured for 19 days at Bukit Aman. In summary, it was about his relationship with Datuk Seri Anwar Ibrahim, the plaintiffs role in the reformasi movement, meetings between Nurul Izzah, Dr. Wan Azizah and Keadilan leaders with foreign political leaders, allegations about Datuk Seri Anwar Ibrahim's sexual activities and the plaintiffs relationship with the opposition party, PAS, and Dato' Fadzil Noor, and his views on the ISA. He was told by his interrogators not to file a habeas corpus application. The. nature of the interrogation shows clearly its political nature and that it was being done for collateral purposes i.e. intelligence gathering for political purposes and nothing to do with genuine concern for national security. This further reinforces the plaintiffs contention that the first defendant never had a basis at the material time of the arrest (or, for that matter, at any time thereafter) for a reasonable belief under section 73(1). In other words, the arrest was from the very beginning mala fide. 

Whether the detention of the plaintiff was extended lawfully
In the light of what I have said above, it therefore follows that the arrest and detention of the plaintiff for 57 days was unlawful from the outset and that the plaintiff is entitled to the declaration prayed for in paragraph 14(a) of the statement of claim and to damages. The question of whether the detention of the plaintiff was extended lawfully as provided for under section 73 (3), therefore, does not arise and would be quite academic. However, for the sake of completeness, I shall in this judgment, nevertheless, deal with the issue. 

In my judgment, the extensions of the detention of the plaintiff which were required after the first 24 hours of detention were not done in compliance with section 73(3) for the following reasons. Section 73 (3) stipulates - 

(3) Any person arrested under this section may be detained for a period not exceeding sixty days without an order of detention having been made in respect of him under section 8: 

Provided that - 

(a) he shall not be detained for more than twenty-four hours except with the authority of a police officer of or above the rank of Inspector; 

(b) he shall not be detained for more than forty-eight hours except with the authority of a police officer of or above the rank of Assistant Superintendent; and 

(c) he shall not be detained for more than thirty days unless a police officer of or above the rank of Deputy Superintendent has reported the circumstances of the arrest and detention to the Inspector-General or to a police officer designated by the Inspector-General in that behalf, who shall forthwith report the same to the Minister. 

I had dealt with the law on this issue extensively in Abdul Ghani Haroon (No: 3). There I held that the officer extending the detention had to be objective, independent minded and professional and to make his own judgment without fear or favour. He should exercise his own discretion without being directed or influenced by his superiors to extend the detention. He should also justify the extension by describing the purpose of the pending inquiries which must relate to the "reason to believe" under section 73(1). He should also explain plausibly - although not with a detailed minute by minute account - why the investigation could not be completed within 24 hours, or within 48 hours, or within 30 days, as the case may be. 1 had in that case opined that the purpose of section 73(3) (a) (b) and (c) was to provide built-in departmental safeguards and that the Court must, and indeed, has the power to evaluate the exercise of discretion in extending the detention. 

In the present case, the SB Forms 28A signed by the officers extending the plaintiffs detention beyond 24 hours and beyond 48 hours, respectively, are exhibited before the Court. The officers involved were ASP Koh Seok Keng (SD9) and ASP Cheong Ah Mooi (SD10), and both gave evidence before this Court. It is my finding that both Forms 28A and the officers' evidence did not address the legal requirements of spelling out the purpose of the detention and relating it to the ''reason to believe" with sufficient particulars. Neither did they explain plausibly why the extensions were needed. It is clear from the provisions of section 73(3) that investigation is to be commenced immediately upon arrest and any extension beyond 24 hours, or beyond 48 hours, or beyond 30 days, as the case may, has to be authorized by the appropriate officer, as stipulated by the provisions. The investigating team is not supposed to sit back and do nothing for 24 hours. It would, therefore, be incumbent for an officer authorizing the first extension to find out what investigation had been carried out in the first 24 hours and what else needed to be done. SD9, however, did nothing of that sort and is only able to say that investigations had not begun without being able to explain why. 

Similarly, SD10 is not able to inform the Court as to what investigations had been done in the first 48 hours after the plaintiffs arrest, or to say what else needed to be done. She merely says that the investigation was in its early stages and could not be completed in a short period. She, however, also says that she did not receive or read or see any report in the file of any investigation that had been done so far with the plaintiff. She acknowledges that her role was to ensure that there was a basis to continue investigations which had not been completed. However, her owfn evidence fails to disclose the particulars for a basis to extend the detention beyond 48 hours and up to 28 days. Both SD9 and SD10 appear to have acted in an automatic and rubber-stamping fashion by merely signing the Forms 28A without applying their minds as to the necessity and purpose of the extension. 

The final extension was done by DSP Philip Savariappan (SD8) who during the trial did not reappear in Court for re-examination after the conclusion- of cross-examination. Exh. Dl 1 is a report to the Minister (SB Fonn 30) signed by SD8 in purported compliance with section 73(3)(c) to authorize a fanner detention of the plaintiff of more than 30 days. Section 73(3)(c) of the ISA stipulates that this report to the Minister must be made either by the Inspector-General of Police (the IGP) himself or by an officer designated by the IGP, SD8 in evidence claimed that he forwarded the report to the Minister pursuant to a 'delegation of powers' under section 73(3)(c). It is to be noted that paragraph (c) of subsection (3) does not provide for a delegation by the IGP of his functions: it merely provides for the designation of an officer by the IGP. 

However, be that as it may, no documentary evidence was ever produced to the Court to show any instrument of 'delegation of powers' or that SD8 was the officer designated by the Inspector-Genera] under section 73(3)(c) to report to the Minister on the Inspector-General's behalf. In cross-examination when SD8 was asked as to the basis of the further detention, he was only able to say that he received a request from the Special Branch to extend the detention beyond 30 days and on that basis he signed and forwarded Dl 1 to the Minister. His answers also show that he acted in an automatic and rubber-stamping fashion. He confirmed that he had never refused a request for extension. He was unable to- explain as to why it was necessary to extend the detention when the plaintiff had asserted in his evidence that after the 19th day of detention interrogation ceased and he was left alone. What SD8 did in the present case was merely to send to the Minister the very report that was submitted to him by one DSP Sofian. There was no evaluation of DSP Sofian's report by him or by the IGP. In short, SD8 acted merely as a 'go-between' between DSP Sofian and the Minister. That is not the intention of subsection (3)(c) in respect of the role IGP or his designated officer. 

B. Whether the plaintiff was assaulted during his detention
On this issue, upon a careful evaluation of the entire evidence before me, it is my finding of facts that the plaintiff has succeeded in proving to the Court on a balance of probabilities that he had been assaulted in the manner he alleges and by the individuals that he has named or identified. 

The plaintiff alleges that he was first assaulted by the first defendant after the arresting team moved him from his home. He was arrested in front of his home after which a search of his home was done and various documents and a personal computer removed. He describes the assault in his evidence. He says he was slapped three times by the first defendant after he was unable to take the first defendant to the location of his (the plaintiffs) car. The plaintiff also said that he was blindfolded, and his head was forcibly covered with a T-shirt and forced to bend forward down between his legs in the car as he was taken to the IPK, Kuala Lumpur. 

The first defendant denies these allegations. He only admits that he instructed L/Cpl Johari to place "cermin mala gelap" on the plaintiff, and that the purpose being "adalah bertujuan untuk menutup penglihatan plaintiff bagi mengelirukan plaintiff. The plaintiff then describes the circumstances of the second assault. In summary, he describes how in an air-conditioned room on the first floor of the IPK he was stripped naked, blindfolded, verbally abused and then physically assaulted. He was hit several times on the face and head. Most of the blows and kicks were directed at his body and legs. His legs were hit with a hard object. He fell over several times as a result of the blows. At one instance when his blindfold slipped, he identified one of the assailants as the second defendant in person - Tan Sri Rahim Noor. 

The plaintiff also said that after the episode of physical assault, some urine-smelling like liquid was poured into his mouth while his mouth was forced open. Throughout the ordeal he was forced to remain naked. His penis was hit and an object pushed against his anus. He was made to stand in front of an air-conditioner and drenched with water - this treatment was done for almost an hour. The ordeal finally ended at about 4 a.m. 

According to the plaintiff when the blindfold was removed he saw the first defendant and other Special Branch officers in plainclothes. The first defendant warned him not to make a police report regarding what had happened. The plaintiff also asked for medical treatment from the detaining officer but access to a doctor was only provided three days later on 29 September 1998. The first defendant's version is a complete denial. He says the plaintiff was never stripped or beaten or ill-treated in any manner. He says that all that happened in what is called the "bilik dokumentasi" on the 1st floor was that the plaintiff was kept in a room handcuffed whilst the documents and items seized from his home were checked and a list made up. This took about one and a half hours. The plaintiff was then photographed by Sgt Sam at Abd Hamid (SD4) at 4 a.m. on 26 September 1998 and then kept in the same room as he was earlier kept until handed over to Bukit Aman officers at 2 p.m. on 26 September 1998. The first defendant also says that Tan Sri Rahim Noor was never in the bilik dokumentasi. 

In my judgment, based on the evidence before the Court, on a balance of probabilities, the plaintiffs case is more credible and ought to be accepted. I so hold for the following reasons. 

First, the medical evidence shows that an assault took place. A careful scrutiny of Dr. Vasanma Ponniah's (SD7's) medical report shows that the plaintiff had complained of pain in his left foot, left thigh, left leg and lower back. He also complained of pain over his pelvis and his right eye. Dr. Vasantha has noted that the plaintiff had limited flexion of the spine due to pain. Similarly she noted bruises over both wrists of the plaintiff; a bruise over the postero-lateral aspect of the left thigh in the mid-thigh area, and another bruise on the postero-lateral aspect of the left leg. In her evidence in Court, Dr. Vasantha confirms that with the bruises there was swelling. It is to be noted that Dr. Vasantha only saw the plaintiff three days after he was assaulted. 

Second, the plaintiff from the time he was brought to the IPK, Kuala Lumpur and until he was handed over to Bukit Aman officers at 2 p.m. on 26 September 1998, was never placed in a lock-up as required by the Lockup Rules. 1953. All prisoners have to be placed in a lock-up after arrest. This is mandatory after 6.30 p.m. (see rule 20 of the Lockup Rules). The Rules provide that prisoners could not be moved out of the lockup between 6.30 p.m. and 6.30 a.m. which must mean that no interrogation could be conducted during these hours. All movements of prisoners in and out of lockups are to be recorded. All this is for the protection of prisoners and also to prevent accusations against the police. The first defendant says that his only instruction was to arrest the plaintiff and take him to the IPK. He had no instructions to conduct any investigation and the only instruction was to prepare all documentations to hand over the plaintiff to Bukit Aman. 

Third, there was no explanation given by the defence as to why the plaintiff was not taken to Bukit Aman immediately after the arrest. Fourth, according to the first defendant's version of events, there ij a substantial block of two and half hours of unexplained time where nothing happened on the first floor of the IPK, that is to say, between 1.20 a.m. and 4 a.m. Hence the first defendant's version of events is highly questionable. After finishing the senarai rampasan at about 1.30 a.m. there was no reason why the photographs of the plaintiff were not taken immediately and the plaintiff placed in a lock-up. After all, Sgt Samat (SD4), the photographer, was on duty all the time and available. Even the story of the time being occupied preparing the senarai rampasan has material and serious contradictions. According to the first defendant, he says that shortly after the plaintiff was taken to the Bilik Dokumentasi, Sgt Samat (SD4), Cpl Teoh and Cpl Sharif arrived on his instruction to help in the documentation and inspection of the documents seized from the plaintiffs house. He says he also instructed Sgt Samat to take photographs. However, Sgt Samat's evidence is completely different. He says that he received a call from the first defendant at 3.45 a.m. to take photographs of the plaintiff who was then in the Bilik Dokumentasi. As I have pointed out above, Sgt Samat's first witness statement (P7) states the time of this instruction as 4 a.m. Neither of these witness statements says anything about him being instructed to go to the Bilik Dokumentasi about midnight to help with the documentation, as claimed by the first defendant. 

Then there is the evidence of D/Cpl Abdul Hamid bin Jaffar (SD3). He says categorically that only he and Insp. Wong (who was never called as a witness) helped the first defendant to prepare the senarai rampasan. He makes no mention of Teoh or Sharif. He explains the process in his evidence and says that it took about 1-2 hours. Cpl Yunus (SD2) also says that the senarai rampasan was compiled by the first defendant, Insp. Wong and Hamid (SD3). He explains that he and L/Cpl Johari (who was never called as a witness) kept guard on the plaintiff, while the first defendant, Wong and Hamid (SD3) prepared the list. 

I am of the opinion that the glaring discrepancy between the first defendant's evidence and the evidence of the others shows that the versions are being concocted to present some kind of a chronology of events to cover the time between midnight and 4 a.m. It is a reasonable inference that none of these versions and, in particular, that of the first defendant reflects the truth. And all the more so when there is this gap in time between at least 1.20 a.m. and 4 a.m. which remains unexplained. It is fair to ask: What were these police officers really doing with the plaintiff in the early hours of the morning when he should have been placed in the lock-up? Their conduct of not keeping the plaintiff in the lock-up and their contradictory answers invite the inference that they were covering up some unlawful act in relation to the plaintiff. 

Fifth, according to the investigating officer, SAC Hadi Ho (SD11), Tan Sri Rahim Noor (the IGP) was actually present in the IPK, Kula Lumpur building between 12 midnight (25 September) and 3 a.m. (26 September) and the time coincides with the time that the plaintiff allegedly was assaulted by the first defendant, Tan Sri Rahim Noor and others. However, according to SAC Hadi Ho (SD11) he was told by Tan Sri Rahim Noor that he was at the IPK for a meeting with the Director of Special Branch, Bukit Aman and the Deputy Director to receive a briefing from the Head of Special Branch, Kuala Lumpur. According to SAC Hadi Ho, Tan Sri Rahim Noor had said he had received information from the Special Branch KL that members of a group of silat exponents planned to gather in various parts of KL on 26 September 1998. SAC Hadi Ho also said that the Chief Police Officer of Kuala Lumpur, Dato' Kamaruddin, was not only not present at the meeting, he was in fact not informed of the meeting at all. I make a finding of fact that Tan Sri Rahim Noor was present at the IPK between 12 midnight and 3 a.m. but I am unable to accept that Tan Sri Rahim Noor was at the IPK for the reason that he had given. I am unable to accept for the following reasons: 

a. Since the meeting involved the IGP, the Director of Special Branch, Bukit Aman and his Deputy Director, why should the meeting be held at the IPK, KL, when it is more appropriate protocol-wise and convenient to hold it at Bukit Aman? 

b. Why was the meeting held at a very unusual time i. e. between 12 midnight and 3 a.m.? 

c. Why must the meeting take so long i. e. almost three hours just to discuss only a single agenda, that is, pertaining to what the silat exponents intended to do? 

d. Since the meeting involved the IGP and top officers from Bukit Aman, why was the CPO of Kuala Lumpur not present at, or not informed of, the meeting? 

e. Considering that there was a very serious allegation made against Tan Sri Rahim Noor by the plaintiff and considering that he was present at the IPK at the material time, why wasn't Tan Sri Rahim Noor called by the defence to testify to rebut the allegation, if indeed the allegation is false? 

Sixth, there is also a major and material contradiction between the first defendant's evidence in Court and what he told SAC11 Hadi Ho (SD11). As stated above, the first defendant's evidence is that his only instruction (received from SAC II Salamuddin, Head of Special Branch, IPK, Kuala Lumpur) was to arrest the plaintiff and take him to the IPK. He had no instruction to conduct any investigation and the only instruction was to prepare all documentations to handover the plaintiff to Bukit Aman. On the other hand, SAC II Hadi Ho (SD11), when asked in cross-examination if he had asked the first defendant why the plaintiff was not put in a lock-up, he said that the first defendant told him that he had to prepare documentations and also that he had to question the plaintiff on various matters pertaining to national security. He said the first defendant told him that he had questioned the plaintiff from time to time until 4 a.m. When asked whether he had asked to see the statements recorded by the first defendant in respect of this purported interrogation, he answered, "Dalam masa itu tidak relevan kepada penyiasatan saya". He also agreed that no interrogation should be done after 6 p.m. in view- of the provisions of the Lock-Up Rules. When asked if he had asked the first defendant why he had not postponed the interrogation of the plaintiff until the next morning, SD1I answered that he did pose the question. SD11 said the answer of the first defendant was that he needed to question the plaintiff on urgent matters regarding the reformasi movement based on information received by the Special Branch and also to ask The plaintiff to explain documents seized from his home. When it was put to SD11 that the investigation of the plaintiff was under Bukit Aman and not under the first defendant, SDll's response was that he was not sure of the arrangement. I accept the plaintiff counsel's submission that the above contradiction again shows that the evidence of the first defendant lacked credibility and seemed to be shifting substantially depending on the circumstances. 

Seventh, there is the pertinent observation that the Kuala Lumpur Police Department (meaning SD11 and his immediate superior, SAC 11, Mat Zain Ibrahim) and the DPP's (Deputy Public Prosecutor's) office, having rejected the plaintiffs complaint in his police report, were, however, not willing to prosecute the plaintiff for lodging a 'false' report against the IGP and the first defendant (and the others). Initially, SD11 and his superior (SAC 11 Mat Zain) recommended to the DPP to NFA (meaning to take 'No Further Action') on the plaintiffs police report and, instead, to have the plaintiff charged under section 182 of the Penal Code for lodging a false police report against the IGP and the first defendant. According to SD11, the file was referred to the DPP's office on 29 July 1999. Although the DPP's office was very slow and did not respond even after 8 months, strangely, there was no follow up by the police. Not a single reminder was sent to the DPP's office. The file finally returned some nine months later on 27 April 2000 from the DPP's office to SD11's superior SAC II Mat Zain Ibrahim with a decision to "NFA" the case. In fact the respond of the DPP was - 

Minit 5 dan keterangan di dalam kertas siasalan telah diteliti dan perkara ini telah dibincang bersama Y. Bhg. Daio' Timbatan Ketua Bahagian Pendakwaan. Setuju kes ini di NFA seperti.cadangan di dalam minit tuan di paragraph 4 alas alasan-alasan yang dikemukakan. 

It is significant and disquieting to observe that the DPP (Puan Zauyah binti Loth Khan), having taken so much time (i. e. 9 months) over the matter, yet in her minutes did not refer at all to the recommendation of SD11 (and endorsed by his superior, SAC 11 Mat Zain) that the plaintiff be prosecuted for making a false police report. That recommendation was simply ignored. Also equally disturbing is the observation that despite the plaintiffs serious allegation against the IGP and the first defendant coupled with the fact that the DPP had ignored SDll's recommendation, yet neither SD11 nor his superior, SAC Mat Zain, considered it fit to refer the IP (Investigation Papers) back to the DPP's office for a direction. Now, in this regard there is no suggestion by the Senior Federal Counsel that there was an oversight on the part of the DPP's office; and Puan Zauyah was not called to give an explanation for the long delay in responding and the omission to direct. The submission of the Senior Federal Counsel is merely - and I think the learned Senior Federal Counsel, with respect, appears to have missed the point - that it is the sole discretion of the Public Prosecutor whether or not to charge the plaintiff for lodging a false report. Hence, here, several disturbing but pertinent questions arise - 

(a) Why did it take nine months for the DPP to respond to SD11 's recommendations? 

(b) Why didn't SD11 or his superior (SAC Mat Zain) send any reminder to the DPP's office when the DPP's office took such a long time to respond? 

(c) Why did the DPP's office purposely ignore the recommendation of the police that the plaintiff be charged for making a false report against the IGP? 

(d) Why were SD11 and SAC Mat Zain not serious in pursuing their recommendation with the DPP's office when a very serious and scandalous accusation had been formally made against their IGP and, instead, were quick to have the investigation file closed? 

Based on the above facts, observations and queries, I think it is fair to draw an inference that both the DPP's office, SAC Hadi Ho and SAC Mat Zain well knew that there was a lot of truth in the plaintiffs police report against Tan Sri Rahim Noor and the 1st defendant (and the others). I regret to remark here that I am also making an inference that the investigation carried out by SAC Hadi Ho in respect of the plaintiffs police report was nothing but a mere sham. 

<>Conclusion that assault did take place as alleged by plaintiff
It is my finding upon an evaluation of the evidence that the plaintiff was unshaken as a witness of truth in the witness stand. He stood firmly by his story which he had detailed in the document marked as P2 and in his police report on 13 March 1999. Senior Federal Counsel in his submission attempts to raise contradictions between the plaintiffs police report and his evidence in Court. It is my finding that a careful scrutiny of the report and the evidence in Court will show that the contradictions, if at all there are any, are trivial in nature and that the versions in P2 and in the plaintiffs police report do not differ substantially from the version given by the plaintiff in Court. 

In the present case it is my conclusion that an analysis of the evidence as explained above including the medical evidence, the credibility of the evidence of the plaintiff, the events that happened on the first floor of ihe IPK on 25th and 26th September 1998, the unexplained gap of two and a half hours, the contradictions between the first defendant's evidence and the evidence of the other defence witnesses, the fact that the plaintiff was not put in a lock-up without any reasonable explanation and in breach of the Lockup Rules, all taken together show that the plaintiff has proven on a balance of probabilities that he was assaulted in the manner he has described. 

Whether the plaintiff was denied access to a lawyer
It is not disputed that the plaintiff did not meet with any lawyer throughout the 57 days of his detention. In his evidence he says that he was not given the right of access to counsel throughout his detention. Not only that : prior to his first family visit on 21 September 1998 (even this was 27 days after his arrest!), he was warned not to file any habeas corpus application. He maintains that he did ask his interrogating officer at Bukit Aman during the first week of interrogation whether he could see a lawyer but he received a negative answer. Needless to stress here that access to a lawyer is a constitutional right, as provided for under Art. 5(3) of the Federal Constitution. Further, the plaintiff has asserted that his interrogation ended after 19 days. Even going by the defence position that access to counsel would only be granted at the completion of the investigation (which in my view should not have been the case), then, why was access to counsel not granted after 19 days? Such a refusal of access to counsel is clearly an unreasonable conduct and shows mala fide on the part of the police. 

The declaration
For the reasons explained above, I grant the declaration set out in paragraph 14(a) of the Statement of Claim. 

General damages for wrongful arrest and detention for 57 days
Encik Sivarasa, the learned counsel for the plaintiff, after referring to several case authorities, submits that the appropriate amount for an unlawful detention of 24 hours in Malaysia would be in the region of RM25,OOQ to RM30,000. He concedes that an award for a period of 57 days should not be a simple arithmetic calculation but would also have to be adjusted. The learned counsel submits that a simple mathematical approach gives 57 multiplies by (say) RM25,000 which amounts to RM1,425,000. He, however, submits that an appropriate amount would be about half of that sum, that is to say, RM700,000. In my judgment this is a reasonable proposition. 

Encik Sivarasa further submits that there are a number of significant aggravating factors in the treatment of the plaintiff during the detention as detailed above in this judgment. The aggravating factors are the breach of the plaintiffs constitutional and fundamental rights, including right of access to counsel; the denial of access to family members within a reasonable time and frequency of the visits; the length of the period of solitary detention; the interrogation for 19 days on matters not related to internal security; the repeated assault of being handcuffed and blindfolded each time the plaintiff was moved from his cell, which is a distressing experience; and the injury to the plaintiffs reputation as a consequence of the arrest and detention. The learned counsel submits that the total amount of general damages for false imprisonment taking into account such aggravating factors should be increased to RM1,500,000. I am in agreement that there are aggravating factors and that the amount of RM700,000 should be increased taking into account these aggravating factors. But I think increasing the amount of RM700,000 to RH1,500,000 is rather too excessive. In my judgment, taking into account the aggravating factors, the award for false imprisonment should be increased from RM700,000 to RM1 million. 

General damages for the assault and ill-treatment
In my judgment, on the evidence detailed above on the assault, taking into account the aggravating factors, an appropriate amount for the vile treatment meted out to the plaintiff, physical injuries suffered, the pain and suffering and the mental anguish and humiliation, the delay in giving medical treatment etc, the plaintiff should be awarded the sum of RM500,000. 

Exemplary damages
In my judgment the circumstances of this case are such that it is appropriate for an award of exemplary damages. In the landmark case of Rookes v. Barnard [1964] AC 1129, Lord Devlin stated that one of the categories of cases in which an award of exemplary damages may be made is a case that involves oppressive, arbitrary or unconstitutional action by the servants of the Government. 

In the present case, the behavior of the defendants is inhumane, cruel and despicable, as the plaintiff was not just arrested and detained unlawfully for 57 days but was also subjected to a vile assault, unspeakable humiliation, and prolonged physical and mental ill-treatment. The Special Branch Department of the Police Force must not only be neutral but must also be seen to be neutral and non partisan. It must be above politics. The practice of torture of any kind is to be detested. The despicable conduct of the then Inspector General of Police, Tan Sri Rahim Noor, was shameful and a disgrace. He had shown an extremely bad example to the thousands of men under his charge. The award of exemplary damages is necessary to show the abhorrence of the Court of the gross abuse of an awesome power under the Internal Security Act. Any gross abuse of this power (which clearly is the case here), therefore, must be visited with an award of exemplary damages to ensure that the extent of abuse is kept to the most minimal, if not eliminated completely. The practice of torturing detainees by the Police Force can never and should never be condoned by the Courts. The Court must show its utmost disapproval in no uncertain terms. Finally, access to a lawyer is one of the fundamental safeguards thai a person has under the Federal Constitution that ensures he is not kept in incommunicado detention and abused. Access to a lawyer ensures that the treatment of the detainee has some transparency and that he is accorded due process as stipulated by the Constitution and the law. Denial of access to counsel allows detaining authorities that act mala fide to do as they wish with a detainee including placing obstacles to legal recourse. In many instances when access to counsel is finally accorded to the detainee, it is usually too late for him to take meaningful legal recourse as the evidence has disappeared or, more importantly, the mischief or injury that the access was supposed to prevent i.e. physical and mental ill-treatment etc. has already happened. 

In my judgment, in the circumstances of the present case, an award of RM1 million as exemplary damages, is appropriate. I am awarding interest at the rate of 8 percent per annum on all the above sums to run from the date of judgment until realization; and I order that all costs of these proceedings be paid by the defendants to the plaintiff 

Judge, High Court (Civil Division) Kuala Lumpur
Date of Decision: 18 October 2007
Date of written grounds of judgment: 18 October 2007
Encik R. Sivarasa and Cik M. Moganambal (Messrs Daim & Gamany) for the plaintiff Encik Kamaludin bin Mohd Said, Senior Federal Counsel, Encik Iznan bin Ishak, Senior Federal Counsel, and Encik Mohaji bin Selamat, Federal Counsel (Attorney-General's Department) for the defendants

Ex-ISA detainee gets RM2.5mil in landmark decision
Nation
Friday October 19, 2007
By CHELSEA L.Y. NG

KUALA LUMPUR: In an unprecedented move, the High Court awarded RM2.5mil in damages to an ex-ISA detainee for having been unlawfully arrested, detained and beaten up while in police custody in 1998.

High Court Judge Hishamudin Mohd Yunus granted the award after ruling that Abdul Malek Hussin had succeeded in suing former Inspector-General of Police Tan Sri Abdul Rahim Noor, a police officer and the Government for the misdeeds done to him during the detention.

“The behaviour of the defendants is inhumane, cruel and despicable, as the plaintiff was not just arrested and detained unlawfully for 57 days but was also subjected to a vile assault, unspeakable humiliation, prolonged physical and mental ill-treatment,” the judge said in his judgment yesterday.

He added that the arrest and detention were unlawful because Abdul Malek was not told of what he had done or intended to do that would pose a threat to national security.

Legal victory: Abdul Malek and his wife Faridah Ishak, 43, leaving the High Court in Kuala Lumpur yesterday after he won RM2.5mil in damages for unlawful detention. With the couple are two of their four children, daughters Nurul Zahra, 11, and Sajdah Zahra, 16.
Apart from ruling that the arrest and detention smacked of mala fide, the judge also said they were done for political purposes rather than for the sake of national security.  

The case is the first where a former ISA detainee has won millions in damages.

In 1996, a former ISA detainee, Guracharan Singh, won his case for unlawful detention but was awarded nominal damages of RM1.  

Yesterday, when Justice Hishamudin spoke of the inhumane acts, he was referring to Abdul Malek’s account of how Special Branch police officer Asst Supt Borhan Daud had slapped him thrice during the arrest at 10pm on Sept 25, 1998, blindfolded him and taken him to the police contingent headquarters here.

At the headquarters, Abdul Malek had told the court, he continued to be blindfolded and was led into an air-conditioned room before being stripped naked, verbally abused, hit in the face and body as well as having urine-like liquid poured into his mouth which was forced open.

He had testified that he knew Abdul Rahim was one of those who assaulted him in that room because at one point his blindfold slipped and he was able to see his assailants.

Justice Hishamudin said the practice of torture of any kind was to be detested.

“The Special Branch Department must not only be neutral but must also be seen to be neutral and non-partisan. It must be above politics,” he said when awarding RM1mil in exemplary damages.  

“The despicable conduct of the then IGP was shameful and a disgrace. He showed an extremely bad example to the thousands of men under his charge,” he said.

The judge stressed that the award of exemplary damages was necessary to show “the abhorrence of the court of the gross abuse of an awesome power under the Internal Security Act.”

“Any gross abuse of this power, therefore, must be visited with an award of exemplary damages to ensure that the extent of abuse is kept to the most minimal, if not eliminated completely.

“The practice of torturing detainees by the police can never and should never be condoned by the courts. The court must show its utmost disapproval,” said Justice Hishamudin.

He said he believed Abdul Malek's story rather than that of the police officers because there were glaring discrepancies, as if it was “being concocted to present some kind of chronology of events” to cover up what had happened in the first four hours of Abdul Malek's detention.

Apart from the exemplary damages, the judge also awarded general damages of RM1mil and RM500,000 for false imprisonment and the assault and ill-treatment, respectively.  

Abdul Malek, 51, is now the chairman of a non-governmental organisation called Malaysians For Free and Fair Elections.

Technology gives world rare view of Myanmar's rage
By Ed Cropley
World Updates
September 26, 2007
MYT 12:00:20 AM

BANGKOK (Reuters) - Secret networks of dissident citizen reporters operating beneath the noses of government spies in army-ruled Myanmar are giving the world unprecedented glimpses of the biggest anti-junta protests in two decades. 

With foreign journalists barred from what is one of the world's most closed states, much of the worldwide media coverage is coming from exiled newshounds in countries such as Thailand and India -- and their clandestine contacts on the inside. 

Students shouts slogans during a protest outside Myanmar embassy in Jakarta September 26, 2007. Secret networks of dissident citizen reporters operating beneath the noses of government spies in army-ruled Myanmar are giving the world unprecedented glimpses of the biggest anti-junta protests in two decades. (REUTERS/Dadang Tri)

Technology ranging from the latest Internet gizmo to satellite uplinks to camera phones are ensuring pictures of the massed marches of monks and civilians and the response by security forces is on TV screens around the world in hours. 

The contrast to Myanmar's last major uprising, in 1988, could not be more stark. Then, as many as 3,000 people were killed when soldiers opened fire on the crowds but it took days for the news -- let alone pictures or video footage -- to emerge. 

"The difference is night and day," said Dominic Faulder, a Bangkok-based British reporter during the 1988 uprising. 

"Now, the whole population are journalists on the move equipped with all sorts of information-capturing devices from telephones and video machinery that you just couldn't use in 1988." 

Then, Faulder said, all information went via the telex at Yangon's posh Strand Hotel, a single line that on one day accounted for 90 percent of all international calls, according to the government spies who came round the next day to find out why. 

"OUR MAN ON THE STREET" 

As troops fired warning shots at crowds in Yangon on Wednesday, "citizen journalists" in the masses seething through the city centre were sending their thoughts, pictures and video to international broadcasters such as CNN and the BBC. 

More important, the news is beamed back in by satellite television and radio by exile news groups such as the Democratic Voice of Burma (DVB), now one of the main ways Myanmar's 56 million people learn about events inside their own country. 

DVB has its headquarters in Oslo and receives funding from several European Union countries. 

The United States helps fund other dissident news-gathering organisations through its National Endowment for Democracy, one source of the generals' assertions that the protests are the result of outside agitation. 

Apart from dissident news outlets, the only sources of news inside Myanmar are the junta's rigidly controlled state media, which, according to one man in Shan state, broadcast "only pop singers and lies". 

After curfews were announced in Yangon and Mandalay via loudspeakers mounted on trucks, the official New Light of Myanmar ran a front page article accusing the opposition of being "rude" and taunting monks who did not join protests. 

"It is not bed time," the protesters were quoted as shouting when abbots at one monastery shut their gates to indicate they were staying put. 

"Do you wish to be called nuns?" they continued. "You are hiding because you are afraid. Want to wear bra?" 

Copyright © 2007 Reuters

Independent panel to probe Lingam tape
Sep 25, 07 2:30pm

A former Chief Judge of Malaya will head a three-member independent panel to probe and determine the authenticity of the VK Lingam video clip, said Deputy Prime Minister Najib Abdul Razak today.

The government has appointed Haidar Mohd Noor (photo) to look into the eight-minute edited video that showed senior lawyer VK Lingam talking on the phone, apparently brokering the appointment of judges with Chief Justice Ahmad Fairuz Sheikh Abdul Halim.

National Service Council chairperson Lee Lam Thye and former Court of Appeal Judge Mahadev Shankar are the other two members of the panel. Both were also former commissioners of the Human Rights Commission of Malaysia.

Haidar retired from his position in 2004 and is currently the Bumiputra-Commerce Bank chairperson.

Najib's announcement comes after pressure from opposition and rights groups for an investigation into the issue and ahead of a planned rare protest march by lawyers tomorrow.

He said that the three panel members had accepted their appointments and would soon start investigating the matter with the support and cooperation of all agencies concerned.

“This decision was made as the allegations and speculations on the video clip can arouse doubts on the credibility and integrity of the country’s judicial system,” he told a press conference this morning in Putrajaya.

Their findings, expected to be known in a few weeks, would be made public later, he added.

To a question if the people implicated in the video would be called up by the panel, Najib said the panel would do whatever necessary.

No royal commission

He also reiterated the government’s stand that a royal commission of inquiry would not be set up to investigate the matter.

He added that the government felt the three-member panel was sufficient to look into the matter.

Previously many quarters, including opposition parties and the Bar Council, had urged the government to set up a royal commission of inquiry to look into the state of the judiciary in light of this latest scandal.

The Bar Council is planning a march from the Palace of Justice in Putrajaya to the Prime Minister’s Department tomorrow morning to submit a memorandum to demand the setting up of a commission of inquiry.

When asked to comment on the Bar Council’s decision to stage the protest march, Najib said it was up to the Bar Council and the authorities to decide on such actions.

Last week Prime Minister Abdullah Ahmad Badawi himself had ruled out the setting up on such a commission, stating that a police investigation on the matter was sufficient.

De facto law minister Mohd Nazri Abdul Aziz had issued a denial on behalf of Ahmad Fairuz in relation to the explosive ‘Lingam tape’ revelations on Sunday.

However Ahmad Fairuz, who was the Chief Judge of Malaya in 2002 when the recording was said to have been made, has remained silent on the issue. He had issued a two-paragraph ‘No comment’ statement to Malaysiakini last Friday.

SPECIAL REPORT: The Lingam tape

Protesters barred from entering Putrajaya
Sep 26, 07 10:44am      

The police have barred seven buses packed with lawyers and members of the public from entering Putrajaya this morning.

The buses were headed towards the Palace of Justice in the administrative capital where the passengers were to take part in a protest march calling for a royal commission of inquiry into judicial integrity.

Malaysiakini learnt that some private vehicles too have been stopped from entering Putrajaya.

The march is organised by the Bar Council in the aftermath of the latest scandal to hit the judiciary - a video clip showing a senior lawyer brokering the appointment of judges with another person on the telephone.

The context of the conversation indicated that the person at the other end was the current Chief Justice Ahmad Fairuz Sheikh Abdul Halim.

The march from the Palace of Justice to the PM’s Department was scheduled to start at 11am.

Those stranded - numbering about 200 - are now walking to the Palace of Justice, which is located about five kilometres away from where they have been stopped.

Eyewitnesses say they are carrying banners and shouting slogans along their way.

Meanwhile at the Palace of Justice a crowd numbering about 1,500 - majority of whom are lawyers - have started gathering since early morning.

There is also a large presence of police personnel, including from the Federal Reserve Unit.

Walk for justice ends with memo submission
Sep 26, 07 11:51am     

Having defied a police order not to march, some 1,500 protesters are now at the Prime Minister's Department where their representatives are handing over a memorandum to an official.

The protesters took about 30 minutes to reach the building. A four-member delegation led by Bar Council chairperson Ambiga Sreenevasan is currently in the building.

Those waiting outside are braving a heavy downpour that started about 12.45pm.

The protesters, who had gathered at the Palace of Justice in Putrajaya this morning, were denied permission by the police to march the 3.5 kilometres to the Prime Minister’s Department to submit a memorandum on saving the judiciary.

According to eyewitnesses, Putrajaya police chief Supt Abdul Razak Abdul Majid told the protest organisers - the Bar Council - that the march could not proceed due to security reasons.

Bar Council vice-chairperson Ragunath Kesavan confirmed this to Malaysiakini. He also added that they would proceed with the march.

The protesters heard a short speech from Ambiga before starting their march at noon - an hour later than scheduled.

“We walk peacefully and with dignity,” said Ambiga, who added that she was overwhelmed by, and proud of, the good turnout today.

She said that the march is a “walk for justice” as “we deserve a first-class judiciary”.

“When lawyers walk, that means there is something wrong. We want changes in the judiciary,” she said.

Independent panel

Ambiga also reiterated that the Bar welcomed the government’s move to set up an independent panel to look into the Lingam tape.

“This shows that the government recognises that there is a problem. However we still want a royal commission of inquiry,” she added.

Ambiga said of the inquiry: "It can only be the first step. They can't force the presentation of witnesses or documents."

She described the heavy security, which included anti-riot police and a police helicopter, as "an act of intimidation".

The protesters, most of whom are lawyers, have been outside the Palace of Justice since this morning to take part in the protest march.

They chanted "We want justice" as they marched while holding placards stating "Judiciary has gone to the dogs" and "Judiciary has gone to the drain".

Earlier seven buses packed with protesters were stopped by police from entering Putrajaya, but they made their way on foot to the Palace of Justice.

When contacted, Abdul Razak said he was busy (on the ground) and was not able to comment.

Judge: It isn't me
 WEB EDITION :: Local News

» Senior judge implicated in video clip denies discussing judicial appointments with
   senior lawyer.
» Lawyers plan march to demand royal commission of inquiry

A SENIOR judge implicated in a video clip which showed a senior lawyer discussing judicial appointments over the phone has denied that he was the person on the other end.

Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri Abdul Aziz said that the judge had contacted him to make the denial.

"The judge called me to deny that he was the one talking to the lawyer," he said in Kuala Kangsar after a break-of-fast event on Saturday night. He did not say when the judge contacted him.

Nazri, who is in charge of law and legal matters, said it was important to establish the authenticity of the controversial video clip released by the Opposition last week. The video was purportedly recorded in 2002 and showed the senior lawyer discussing the elevation of several members of the judiciary.

"(Based on the video clip) we only see one person talking ... we don’t know who was on the other end. He (the judge allegedly speaking to the lawyer) has denied (it)," he said.

The revelation of the video has prompted calls for an investigation. The Bar Council plans a march to submit a memorandum to the prime minister on Wednesday, calling for the cabinet to discuss the setting up of a Royal Commission.

It also plans to hold an extraordinary general meeting on Oct 6 to discuss the issue further and refer the senior lawyer to the legal profession’s Disciplinary Board.

Judge said it’s not him: Nazri
KUALA KANGSAR: A senior judge said to have engaged in a telephone conversation with a lawyer, allegedly discussing judicial appointments, has denied that he was the one contacted by the lawyer featured in the video clip released by Parti Keadilan Rakyat last Tuesday.

Given the rising concern over the state of the judiciary following the release of the video, Gerakan acting president Tan Sri Dr Tsu Koon called yesterday for immediate action to address the concern and cautioned that if this was not done, it could harm the credibility and integrity of the judiciary.

In a Bernama report, Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri Abdul Aziz said the judge implicated in the clip had contacted him to make the denial.

"The judge called me to deny that he was the one talking to the lawyer," he told reporters after handing Amanah Raya Berhad tithe and breaking fast at Taman Kuala Kangsar mosque here on Saturday night.

He did not mention when the judge contacted him

Mohamed Nazri, who handles the portfolio on law and legal matters, said what was important at this stage was an investigation to establish the authenticity of the video clip.

"(Based on the video clip) we only see one person talking. We don’t know who was on the other end. He (the judge allegedly speaking to the lawyer) has denied (it)," he said.

Police have started an investigation to ascertain the authenticity of the video clip before taking further action.

Mohamed Nazri also questioned the motive of the people who exposed the clip as they have released it to the media first before handing it to the police and the Anti-Corruption Agency.

"If they want to uphold justice or want to clean up the judiciary, the police and ACA can investigate. Why go to the media? The intention is questionable – for political (mileage) or for a clean judiciary?" he asked.

He warned that legal action can be taken against people resorting to action that could erode public confidence in the judiciary.

The eight-minute video showed the lawyer discussing the appointment of the judge as the Court of Appeal president and later being elevated as the chief justice, and the appointment of several other judges.

On Saturday, the Bar Council convened an emergency meeting to discuss the video clip and called for a Royal Commission of Inquiry to investigate the matter.

According to news reports, its chairwoman, Ambiga Sreneevasan, said the commission should also investigate all the problems concerning the judiciary.

On Wednesday, the Bar Council will organise a march from the Palace of Justice to the Prime Minister’s Office in Putrajaya, where it will submit a memorandum to Datuk Seri Abdullah Ahmad Badawi, calling for the cabinet to discuss the setting up of the commission.

It also plans to hold an extraordinary general meeting on Oct 6 to discuss the issue further and refer the lawyer to the legal profession’s Disciplinary Board.

Abdullah had said on Friday he viewed the issue seriously and had asked the police to investigate it as soon as possible.

He said the video clip could harm the good name of the judicial system.

"You cannot take it lightly and the matter must be addressed promptly," Abdullah, who is also the internal security minister, said.

In Batu Pahat yesterday, Koh said Malaysia has a good judicial system and legal framework that were well understood by foreign investors compared to other developing countries.

"This has become an advantage for the country to attract foreign investments. But once we lose credibility, it is going to affect our ability to woo investors," he told reporters after opening the Johor Gerakan delegates conference.

Updated: 02:25PM Mon, 24 Sep 2007

Video links CJ to 'appointment fixing' scandal
Wednesday, 19 September 2007, 12:52pm
Malaysiakini
by Fauwaz Abdul Aziz & Beh Lih Y