Judges, lawyers and Attorney General of Malaysia are answerable to people,

The Observatory has been informed by Suara Rakyat Malaysia (Suaram) about the harassment against Cynthia Gabriel, Suaram Secretariat Member, allegedly in retaliation for Suaram’s role in exposing a corruption case involving the Malaysian government and related to the Scorpene submarine scandal, involving at least RM500m in suspected kickbacks.

According to the information received, on 7 August 2013, at 3.00pm, Cynthia Gabriel went to IPD Petaling Jaya police station to be investigated under Section 4(1) of the Sedition Act 1948. The investigation took place after Suaram was informed that a police report was lodged against the organisation in relation to a fundraising dinner it organised on 19 July 2013 in order to raise funds for the Scorpene case, which is pursued by Suaram before a French court.

During the investigation of Cynthia Gabriel, the Investigating Officer did not share or detail the content of the police report that was reportedly brought against Suaram in regards to the Scorpene dinner. The questions focused on Suaram and its work generally, including its policies and positions, and paralleled the questions that were asked last year when Suaram faced investigations from the Companies Commission of Malaysia (CCM), the Registrar of Societies (RoS) and the police from July 2012 to March 2013. The intention of these investigations was also to harass and intimidate Suaram for its work on the Scorpene case; the RoS withdrew all pending notices against Suaram in March 2013.

The Observatory condemns the ongoing harassment of SUARAM members and calls on the Malaysian authorities to put an end immediately to the judicial harassment against Cynthia Gabriel, all Suaram members as well as against all human rights defenders and organisations operating in the country.

Cabinet Minister Datuk Seri Mohamad Nazri Aziz  had been cleared of any wrongdoing by his boss, Prime Minister Datuk Seri Najib Razak, over the issue.then why we need Judges, lawyers and Attorney General

“I am not worried. I am going to fight them. It doesn’t bother me,” he told The Malaysian Insider today.

The latest round of attacks came from bloggers and Malay groups who claimed that the minister was being arrogant by defending his decision to appoint his son, Nedim Mohamed Nazri, as his special officer.

They challenged him to contest in the coming Umno elections to prove his popularity.

The A-G’s overall powers, roles, and responsibilities are provided for in Article 145 of the Federal Constitution:

1. The Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General for the Federation.
2. It shall be the duty of the Attorney General to advise the Yang di-Pertuan Agong or the cabinet or any minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law.
3. The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.
   1. Federal law may confer on the Attorney General power to determine the courts in which or the venue at which any proceedings which he has power under Clause (3) to institute shall be instituted or to which such proceedings shall be transferred.
4. In the performance of his duties the Attorney General shall have the right of audience in, and shall take precedence over any other person appearing before, any court or tribunal in the Federation.
5. Subject to Clause (6), the Attorney General shall hold office during the pleasure of the Yang di-Pertuan Agong and may at any time resign his office and, unless he is a member of the Cabinet, shall receive such remuneration as the Yang di-Pertuan Agong may determine.
6. The person holding the office of Attorney General immediately prior to the coming into operation of this Article shall continue to hold the office on terms and conditions not less favourable than those applicable to him immediately before such coming into operation and shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court.
7. Abdul Gani Patail graduated with a third class ^[2] Bachelor of Laws (Hons) degree from the University of Malaya in 1979. He began his legal career the following year as a Deputy Public Prosecutor (the title for a prosecuting officer in Malaysia) in Kota Kinabalu, Sabah. In 1985, he was promoted to Senior Federal Counsel for Sabah.^[3]

   In January 1994, Abdul Gani moved to the Attorney General’s Chambers in Kuala Lumpur. There he was appointed Head of the Prosecution Division (1994 and again in 2000), Head of the Advisory and International Division (1995) and Commissioner of Law Revision (1997).^[3]

   On January 1, 2002, he was appointed Attorney General of Malaysia.^[3]

After the recent general election, Malaysian democrats have again been frustrated. Once more, the United Malay National Organization (“UMNO”) emerged victorious, though many believe this was the most fraudulent election in Malaysia’s political history. Now, democrats are redoubling their efforts to reveal such fraud and to seek electoral reform at least with an eye to winning the next election.

Democrats take solace in the fact that UMNO is on very vulnerable political terrain; it cannot compete fairly within upon a democratic playing field, but they should not just exert political pressure on UMNO. They can use another strategy: public interest litigation designed to embarrass UMNO’s ethnocratic political program, a program rooted in an authoritarian and discriminatory principle of Malay political dominance. Through such litigation, democrats can cast further doubt on UMNO’s claim to exercise legitimate political rule.

At present, Malaysia has no tradition of public interest litigation. This, despite the existence of a supreme written Constitution that contains a bill of rights and provisions that protect important group interests within a rubric of legal equality and provisions that express the principles of the separation of powers and federalism, which guard against the excessive concentration of power in any single organ of government. It is plain that the constitutional framework imposes legal discipline upon political power in a way that is hostile to authoritarian rule that is readily amenable to public interest litigation.

Though people do not elect judges and advocates, the two are answerable and accountable to the public, said Chief Justice of India P Sathasivam here on Tuesday.

Minister in the Prime Minister’s Department cum de dacto law minister Nazri Abdul Aziz’s attempt to disown responsibilities for his contradictory statements in parliament on the grounds that he was only the reader – not the author – of those statements has brought serious concern to the soundness of the Barisan Nasional political leadership.

The senior minister was confronted with evidence of his son Nadim (left) using a luxurious vehicle registered in Michael Chia’s name, who together with Musa Aman (Sabah Chief Minister), were cleared by Nazri of corruption in parliament earlier.

Nazri had provided written answers in Parliament that there was no corruption in the four-year-old scandal where Chia was alleged to have been arrested in Hong Kong for trying to smuggle S$16 million of Musa’s cash to Malaysia. Nazri also denied that Chia was arrested, or that he had cash with him.

Nazri attributed these findings to the Malaysian Anti-Corruption Commission (MACC) and the Attorney-General (A-G).Talking to reporters on November 1, Nazri explained that all his statements in parliament came from the MACC and A-G, over whom he had no control. He was only the minister answering questions in Parliament on issues that he was not involved in.

As such, he sees no conflict of interest with Michael Chia. Sadly and shamefully, Nazri was in effect saying that he merely parroted what these government agencies told him, for which he disavowed any responsibility.

Breach of Parliamentary Democracy

Nazri’s stance immediately raises an alarm. If Nazri disclaims responsibility over his statements, then who is responsible to parliament for them? He is a cabinet minister in the Prime Minister’s Department, looking after Parliamentary affairs, as well as de facto Law Minister.

So, if Nazri’s disclaimer is justified, does it not mean that in addition to Nazri (right) himself, the Prime Minister and the entire Barisan Nasional (BN) cabinet can also be freed from responsibility over possible false statements on the scandal made in Parliament?

Doesn’t this amount to the Barisan Nasional leadership abdicating wholesale its accountability to Parliament, and by extension, betraying the trust upon which the people have elected the coalition to power?

This is certainly a serious breach of the principles of parliamentary democracy upon which this nation was founded, for which Prime Minister Najib Abdul Razak can no longer keep silent and must promptly stand up to make his stand to the nation.

He must urgently clarify in Parliament whether Nazri was authorised to make those statements and whether every Minister is personally responsible for what he states in Parliament.

And since MACC comes under the Prime Minister’s Department while the A-G is the cabinet’s chief legal adviser, both of whom are claimed by Nazri to be responsible for the statements he made in Parliament, Najib must now give unequivocal answers to many perplexing questions on the scandal, compounded by Nazri’s contradicting versions of the story.

Nazri’s contradictory statements

To appreciate the seriousness of these contradictions perpetrated by Nazri in parliament, I will briefly recap them as follows:

• On October 11, answering MP Chua Tian Chan, Nazri stated that the AG decided that there was no corruption, based on MACC’s investigations and reports. However, this assertion immediately clashes with MACC’s own statement a few days earlier, when its deputy chief commissioner (operations) Shukri Abdull said on Oct 5 that investigation were still on-going, due to instruction by its review panel to get more evidence;

• On October 18, answering MP Tan Kok Wai, Nazri changed his tune by saying that the investigation was not carried out by MACC, but instead, by Hong Kong’s Independent Commission Against Corruption (ICAC), which concluded that there was no corruption. No explanation was given as to why Nazri reversed his story; and,

• On October 22, answering questions at the committee stage of the Budget 2013 debate in Dewan Rakyat, Nazri astounded all by denying that Michael Chia was ever arrested, neither did Chia possess the alleged cash, as he understood from MACC.

No explanation was given why the BN government had kept its strange silence, while reports of Michael Chia’s arrest with S$16 million cash meant for Musa Aman had swirled for the past four years.

It is important to note that while Nazri was dancing like a yo-yo in Parliament with his statements of exoneration for Chia and Musa, none of the investigating and law-enforcing bodies – ICAC, MACC or A-G – ever uttered a word on the scandal (except for MACC’s statement on October 5 that investigation was still in progress), least of all any declaration of the duo’s innocence.

All we have is Nazri’s words – words that are not collaborated or substantiated with even an iota of evidence, in addition to being self-contradictory and conflicting with MACC.

PM must answer

Under the circumstances, Prime Minister Najib must take responsibility for the bumbling Minister in his department and step up to give categorical answers to the following questions in Parliament to avert a total collapse of confidence in his leadership:

1. Is it true that ICAC has conveyed its findings of money laundering to MACC, including a money flow chart trailing the Sabah timber corruption money through a convoluted network to end up in Musa Aman’s UBS AG account in Zurich, complete with details of various nominee accounts, payers and payees, deposit amounts, etc? (This money flow chart has been widely circulating on the Internet for some time).

2. Is it true that MACC has carried out an investigation of its own on Sabah timber corruption including probe on Musa Aman and his brother Anifah Aman (Malaysia’s Foreign Minister) since the Michael Chia incident in Hong Kong?

3. Is it true that neither ICAC nor MACC has ever exonerated Chia and Musa of money laundering and corruption?

To avoid falling into the same quagmire as Minister Nazri has, the Prime Minister is well advised to buttress his answers with sufficient and credible facts – the kind of evidence that will restore public confidence.

Latest Nazri-Chia corruption scandal

With regard to Nazri’s latest refutation of any impropriety over his family’s beneficial link to Michael Chia on the grounds that his son is his son, with whom he has nothing to do, this is sheer child’s talk.

Whether Nazri likes it or not, his son Nedim is his immediate family, and for any improper favour granted to Nadim by virtue of Nazri’s position as a minister, the latter is deemed beneficiary and recipient of that improper favour.

Would Chia have given the half-million-ringgit Hummer SUV for use by Nedim’s family, if not for the fact that Nazri is a senior minister capable of doing Chia a favour?

In this case, Nazri easily stands out as a prime corruption suspect, as he has already stuck his neck out in parliament where he recklessly cleared Chia (as well as his alleged master Musa Aman) of any wrong-doing.

This is clearly a case with classical corruption ingredients, cut out for action by any corruption buster worth ihis salt in any democratic country.

However, in Malaysia, our MACC has already played deaf and dumb on the Chia-Musa scandal for the past four years. Will it also do a Chia-Musa on the latest Nazri-Chia corruption scandal this time around?

Inaugurating the Rs 4.2-crore Alternative Disputes Redressal (ADR) Centre and laying foundation for a new administrative block for the Madras high court in the presence of Tamil Nadu chief minister J Jayalalithaa, he said judiciary was enjoying enormous public confidence and trust, and hence advocates and judges must conduct themselves in a manner befitting the stature.

Later in the evening, while addressing members of various Bar associations, Justice Sathasivam called upon lawyers to work towards improving the public image and perception of the profession. “The image of the lawyer must change in the eyes of the society. I am confident that the day when all the lawyers wilfully offer their services both as advisor and as advocate, our society will revere the profession.”

While talking to reporters, Justice Sathasivam ruled out the possibility of establishing regional benches of the Supreme Court in different parts of the country.

He said there might not be any consensus on the location of regional benches. As for a southern bench of the apex court, he said, “You will demand that it be based in Chennai, but similar demands might arise from Hyderabad or Bangalore.”

He said even the all India conference of chief justices and chief ministers could not take a final decision on the matter, and added that the demand was misplaced as the apex court proceedings could be followed on real-time basis from any part of the country. “Right now no decision is likely on formation of regional benches of the Supreme Court,” Justice Sathasivam said.

Asked about the frequent lawyer-police clash in Tamil Nadu, the Chief Justice of India said advocates and police were not enemies and that both were working for the welfare of people. “They must understand the scope of each other’s job nature,” he said.

As for the continuing demand for recognising Tamil as language of the high court, he said the Madras high court has forwarded a favourable recommendation in that regard. But the government and other agencies must create necessary infrastructure including law books in Tamil and necessary clerical assistance.

Justice Sathasivam recalled that his senior K Duraisamy had assigned him a court work on the very day of his enrolment. India had approximately 12 lakh registered advocates, and every year 60,000 to 70,000 law graduates are joining the profession, he said.

Noting that the Supreme Court has introduced a system wherein the listing of cases and the bench before which they are listed would be conveyed to advocates and litigants through SMS and email, he said shortly the service would be extended to daily orders as well.

Earlier in the day, Jayalalithaa made an announcement of sorts when she said the acting Chief Justice of the Madras high court, Justice R K Agrawal, would soon be a chief justice and Justice R Banumathi would soon be Chief Justice of Jharkhand high court.

“The growing population, increasing awareness of rights and the abiding confidence of people in the judiciary have witnessed a tremendous spurt in litigation. However, in the Indian context, lack of awareness of legal provisions, mystifying legal terms, delays in disposal and the prohibitive cost of litigation are some of the barriers in the way of accessing justice. The cost of litigation has increased exponentially,” she said. The CM also recalled her government’s initiatives for the welfare of women and children, and said it was an area close to her heart.

Yet, no tradition of such litigation has emerged because the long-standing UMNO government has attempted to prevent citizens and judges from developing such a tradition. In the 1980s, after concerned citizens went to court to ask judges to check state authoritarianism by reference to constitutional norms, the government, led by Dr. Mahathir Mohammad, UMNO’s most well-known ethnocrat and the country’s longest serving Prime Minister, put an end to this practice. It sacked judges and amended the Constitution to limit judicial review. And, allegedly, the government rigged judicial appointments to produce a compliant judiciary.

Bracketing the question whether or not the courts are now well placed to develop a tradition of public interest litigation, it first bears noting that the conditions are right to revive public interest litigation. UMNO is weak. It no longer has a supermajority in Parliament and cannot amend the Constitution to suit politically expedient goals. Nor can it afford to appear to meddle in judicial affairs. Perhaps most significant is that UMNO lacks competent leadership. This is the result Dr. Mahathir’s long reign as UMNO head. Fearing challenge from within UMNO, he did not groom an adequate leadership structure within the party, so when he retired in 2003, he left it without the intellectual wherewithal to survive.

Right now, in a well-worn strategy, UMNO also seems keen to invoke the Constitution in its favour, precisely because it is politically weak. In the 1980s, the government argued that there is a “sacrosanct social contract” between Malaysia’s Founding Fathers in the Constitution, entrenching a legal-political principle of “Malay Dominance.” This argument inverts the doctrine of constitutional supremacy, which usually applies to impose hard legal limits on state power to protect citizens. UMNO relies on the doctrine to impose hard legal limits on popular politics to immunize the ethnocratic paradigm from political challenge under the guise of constitutionalism. It uses the doctrine to entrench an authoritarian state power over citizens.

Unfortunately, democrats have not developed an adequate response to this stance. Some lawyers and academics have sought to debunk the ethnocratic reading of the Constitution but they have only made a negative case. They have not set out a detailed constitutional vision for society that begins in an interpretation of abstract values of political morality like democracy, legality, and social stability and explain how these yield middle level principles that fit and justify the Constitution’s text, structure, and history, ultimately culminating in practical claims about what the Constitution requires.

In short, democrats need a theory of the Constitution capable of offering guidance for political deliberation, debate, and judgment suited to a pluralistic society like Malaysia.

Any such theory is likely to show how the Constitution enacts a “constitutional democracy,” not dictatorship. The cooperative efforts of thinkers, lawyers, judges, and citizens will be needed to build such a theory. But the principal laboratory for the construction of such a theory is the courts. There, conscientious lawyers and judges can apply and refine a coherent constitutional theory in the context of specific constitutional problems.

This is where the strategy of using public interest litigation will be crucial. The very recent Malaysian High Court judgment in Indira Gandhi on the constitutional validity of unilateral conversions of children by a Muslim parent shows how this strategy might work. In an impeccably reasoned judgment, Lee J articulates middle level principles to interpret constitutional text, structure, and history and then applies that interpretation to the issues before the court. While he does not set out a deeper theory of the Constitution, he alludes to such a theory in a postscript, noting that one has to read the Constitution as creating a framework of social cooperation predicated upon equality and tolerance intended for a pluralistic society. It is also worth noting that he expressly encourages public interest litigation as a way to develop this vision of the Constitution.

Lee J’s judgment foreshadows the sort of strategy for democrats I suggest here and reveals the power of that strategy. In this case, his arguments require the government to respond with a constitutional argument that lays bare its deeper theoretical assumptions about the Constitution, assumptions which will then be subject to legal testing that is apt to reveal that UMNO’s view of the Constitution is legally mistaken and politically unpalatable in a plural society. Public awareness of these problems is then likely to generate significant political pressure on the government to either accept meaningful democratic reform or eventually to exit.

Lee J’s decision shows that judicial independence is not dead in Malaysia and that courts can advance democracy via public interest litigation.

Former Pakistani President Pervez Musharraf will be charged next week with the alleged murder of ex-Prime Minister Benazir Bhutto, his lawyer said, the latest turn in a political drama that has unfolded since his return from exile in March.

News of the pending criminal charge came as details emerged on Tuesday about an audacious overnight Taliban jailbreak of some 250 prisoners including what a Pakistani official said were 40 to 50 “hard-core terrorists.”

In a separate development, lawmakers voted overwhelmingly for a businessman, Mamnoon Hussain, from the ruling Pakistan Muslim League-N, to be the next president, as expected. He will take up the largely ceremonial position in early September at the end of the five-year term of President Asif Ali Zardari, Ms. Bhutto’s widower.

Mr. Musharraf, who was previously Pakistan’s military chief, has been enmeshed in multiple court cases since his return to Pakistan. But a charge in the December 2007 Bhutto assassination, expected at a court hearing on Aug. 6, would be the most serious yet.

Ahmed Raza Kasuri, Mr. Musharraf’s lawyer, said the pending cases against Mr. Musharraf were “false, fabricated and fictitious.”

The attempted prosecutions, Mr. Kasuri added, “will fall like a house of cards.” The public prosecutor couldn’t be reached to comment.

Mr. Musharraf is alleged to have not provided Ms. Bhutto with sufficient security at the time of her assassination, when she was campaigning for coming elections. He is also alleged to have threatened her before she returned to Pakistan in October 2007, the lawyer said.

Mr. Musharraf seized power in a 1999 coup and threw Pakistan’s support behind the U.S.-led war on terrorism after Sept. 11, 2001. The latest legal setback for Mr. Musharraf comes just before the visit of the U.S. Secretary of State John Kerry, who is expected to arrive in Pakistan for talks this week.

Washington has stated that the fate of Mr. Musharraf is an internal matter for Pakistan.

Mr. Musharraf was indicted in the long-running Bhutto case in February 2011, but the court couldn’t proceed against him until he returned to the country. Arrested over the case in April, he was granted bail in May, but he remains under house arrest in Islamabad, over charges he faces in a separate lawsuit.

Underscoring the unpredictable situation in Pakistan, officials confirmed new details Tuesday about a raid on a prison in northwest Pakistan by Taliban militants that led to the escape of committed extremists.

The jailbreak in Dera Ismail Khan began shortly before midnight on Monday with a concerted attack by Pakistani Taliban militants.

Malik Qasim Khan, the adviser on prisons to the provincial chief minister of Khyber Pakhtunkhwa, said guards at the facility stood little chance of repelling the assault. They fought off the attackers for half an hour until their ammunition ran out, he added, but attackers got away with the prisoners long before reinforcements arrived.

“This was 100% the failure of the intelligence agencies,” said Mr. Khan. “The guards fought back as much as they could. No one came to help them for three hours.”

Mr. Khan said the raiding party was 150 strong, with many dressed as police officers and armed with guns, bombs and rockets.

“We were not equipped for this,” said a police constable who was on duty. “We had old guns and sticks. By the time help arrived, the militants had done what they wanted.”

Assailants had time to call out the names of the prisoners they had come to free on a megaphone during the raid, local witnesses said.

Twelve people were killed in the attack, officials said, including five police officers and four prisoners from the minority Shiite sect of Islam, who were executed inside the prison by the militants.

Mr. Khan, the provincial official, said prisoners from the tribal areas—border regions that are under federal, not provincial, authority—should be kept in federal prisons. “All these militant prisoners are from tribes,” he said. “The federation should take them away, rather than leaving them as our burden.”

The Pakistani Taliban are linked to al Qaeda, which claimed responsibility for mass prison breaks last week in Libya and Iraq, where large numbers of extremists went free.

The storming of the jail in Dera Ismail Khan followed an almost identical operation last year by militants in Bannu, a town that also lies on the edge of Pakistan’s militant-plagued tribal area. Some 400 prisoners were freed in that raid.

The incident raised new concerns for the safety of Shakil Afridi, the Pakistani doctor who helped the U.S. Central Intelligence Agency track Osama bin Laden in Pakistan. Dr. Afridi is held at a jail in Peshawar, which is also located next to the tribal belt. The Taliban have declared that they aim to kill him.

The provincial government repeatedly asked the federal government to take him away, saying that it can’t guarantee his safety, Mr. Khan said.