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Tuesday, October 14, 2008

TheStar Letter -PM should abolish the ISA


Monday October 13, 2008

THE decision by Datuk Sri Abdullah Ahmad Badawi to step down as Prime Minister by March, though surprising was not unexpected.
Many may feel let down by his premature exit from the political arena especially when there country is plagued with numerous problems.
They would have preferred him to defend his post and remain as PM for a short while more and pursue his promised reforms with more vigour and zeal.
Similarly there are those who are pleased that he finally agreed to make way for others to take over and manage the affairs of the nation more effectively in facing the current challenges.
Nevertheless it was magnanimous of him to give in to the calls of the people to relinquish his post and make way for someone new to succeed him especially when the country is facing tremendous political and economic uncertainties.
Whoever succeeds him will have a monumental task at hand to rebuild the nation to its past glory.
He will have to possess not only all the skills of political manoeuvring but above all the integrity, courage and whole-hearted commitment to bring bold changes for the benefit of the people and nation. Abdullah promised many changes when he took over the premiership in 2003. Despite his honesty and sincerity in wanting to bring changes and reforms for the benefit of the common man, Abdullah met with limited success.
The hardcore political realities prevented him from succeeding in realising his dreams as he would have wanted.
Abdullah has admitted his shortcomings and plans to continue with his unaccomplished tasks during the remaining short period of six months.
He plans to continue with his attempts to reform the judiciary by establishing a Judicial Appointments Commission and a Malaysian Anti-Corruption Commission to strengthen and empower the anti-corruption body.
He wants to set up a Special Complaints Commission to improve the effectiveness of enforcement agencies and organise a Barisan Nasional convention to tackle head-on sensitive inter-communal problems that are threatening to disrupt the peace and harmony in our multi-racial country.
These may be honourable and praiseworthy aims on the part of the outgoing prime minister but time constraints may not allow him to complete these noble tasks before he leaves.
Nevertheless he should boldly push through these reforms with more vigour and zeal in the remaining time he is in office and impress on his successor the need to continue with them fearlessly.
While these reforms may meet tremendous resistance in their implementation and have limited chance for success, one thing that he can definitely succeed in the short time he has is abolishing the draconian Internal Security Act (ISA) and releasing all those detained under the Act.
Repealing the law is not an option but a must as the vast majority of the people oppose it.
Pak Lah still has the time to demonstrate that he listens to the people, whom he claims to love so much.
What the people want now is the immediate release of all ISA detainees and the abolition of the Act altogether.
If he can do that he will at least go done in history as the prime minister who restored greater democracy to the nation and freed the people from the clutches of a repressive law.

DR CHRIS ANTHONY,
Butterworth.

Parliament 13 October 2008 - Revise 2009 Budget

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All The King's Men...

I wonder what it means for the future of this country that Datuk Mukhriz Mahathir, a current UMNO favourite son and most certainly one whom the dizzying heights beckons, has taken the view that matters pertaining to the reform of the Judiciary are not a priority. As was reported in an article in The Sunday Star, the Honourable Member of Parliament for Jerlun questioned the need for judicial reform. He claimed that Malaysia would not crumble without these reforms and, in any event, they did not benefit the Malays or UMNO.

I would have thought that the question of whether the Judiciary and the wider system of justice are in need of reform is moot. Even without the acknowledgment by the Government earlier this year that steps had to be taken to restore confidence in the Judiciary, it is glaringly apparent that all is not as it should be. Standards of judicial competence are worryingly low as is public certainty of the integrity of the judicial process. This latter aspect is no longer a matter of speculation, delusion or political spin, the conclusions and recommendations of the Royal Commission of Enquiry on the VK Lingam video made things explicitly clear: things need to be sorted out.

Matters of judicial competence and integrity impact across the board; they are neither race nor political-party specific. Bad or skewed decisions hurt the wider legal profession and the nation as a whole as much as the litigants involved. One of the biggest difficulties practicing law at the present is the lack of certainty in the law, in part for there being a slew of decisions that have been adjudged without due regard to principle or precedent. In becoming precedents themselves, these decisions have undermined the foundations of not only the legal system but also the system of commerce that it supports. Commerce being wholly dependent on the certainty that only an effectively functioning legal system can provide, the current state of affairs is anathema.

It is for this reason that when entering contracts pertaining to Malaysia, many a commercial party now take pains to stipulate that the law of the contract is not Malaysian law and that dispute resolution is to take place outside the country. That is a cause for great concern, one that we have ignored for far too long to our own detriment. A weak system of justice does no favours for the country in which it exists; it is a sure path to failure for driving investment away, much as we are currently experiencing.

Is this not a matter that affects the Malays and UMNO as much as the rest of us?

This is not just a matter of our all being Malaysians and having a common future. Malays are as much litigants before the courts as any other Malaysian. They are as involved in business and corporate deals as much as the next person is, even more some would say. A cursory perusal of the law journals would show just how far, just as they would the fact that they accuse, or are being accused, of cheating and breaching duties, or murder, rape or theft, just like anyone else. UMNO itself is capable of being dragged into court just like any other society and has in fact been there before.

Surely a stronger, independent and more competent Judiciary would benefit these quarters, as much as they would everyone else? After all, justice is supposed to be blind.

I think Datuk Mukhriz Mahathir has much to offer this nation, in parliament and outside it. His reasoning in this instance is however sorely misconceived. The said article suggests that he has formed the view that the reforms are an expression of anti-Mahathirism, notably that of Datuk Zaid Ibrahim. Though I will not speak for the former Minister in charge of legal affairs, he is more than capable of doing that for himself, I will say that the potential UMNO Youth Chief may have mistakenly confused an articulation of the need for reform with a personal attack on Tun Mahathir.

The call for reform started long before Datuk Zaid Ibrahim made headway in UMNO. It was prompted by the serious consequences of the 1988 attack on the Judiciary and the Rule of Law. Many in one form or the other, including the Judiciary itself and great legal luminaries such as His Royal Highness Sultan Azlan Shah, have taken it up. Their message is clear; something needs to be done.

The Malaysian Judiciary was once respected throughout the Commonwealth, it no longer is. Its foundations have suffered a beating from the shockwaves that emanated from the events of 1988. The testimony at the Lingam Commission hearings showed how much they still reverberate and, for that, how precarious the position of the institution is.

Is it in danger of collapsing, taking the nation along with it? Only time will tell. The question for us all, Datuk Mukhriz included, is whether we want to wait to find out.

(Malay Mail; 14th October 2008)

Malik Imtiaz Sarwar

Politics of judicial appointment

Contributed by Vazeer Alam Mydin Meera
Tuesday, 14 October 2008 10:48am

Vazeer Alam Mydin MeeraThe Malaysian Insider
OCT 14 - Tun Abdul Hamid Mohamed, the Chief Justice of the Federal Court, will be retiring in a few days. His retirement will bring to close a career spanning almost 30 years in the Malaysian Legal and Judicial Service and the Bench. I wish him happy retirement.

Hamid’s appointment as the head of the judicial branch was an eventful one. Unlike others, it was the result of the Conference of Rulers becoming more assertive in the exercise of the collective constitutional powers of the Rulers. Many in the legal fraternity heralded this development. Apart from the political implications of this new found role of the Conference of Rulers, Hamid’s appointment had another noteworthy historical significance.

For the first time, the heads of the three branches of government hailed from a single state - Penang. Prime Minister Datuk Seri Abdullah Ahmad Badawi, the head of the executive, was born in Kepala Batas, Penang; Hamid, the head of the judiciary, was also born in Kepala Batas, Penang; and Tan Sri Dr Abdul Hamid Pawanteh, the head of the legislature, was born in George Town, Penang. Tun Hamid and Tan Sri Hamid went to the same school, St Xavier's Institution, while Abdullah attended Bukit Mertajam High School.

However, the impending retirement of both the Chief Justice and the Prime Minister is about to change this equation. The main political players have agreed on the new chief executive. Barring the unforeseen, the nation will have Datuk Seri Najib Razak as the next Prime Minister. However, the process to appoint the successor to Tun Hamid as the Chief Justice is still being worked through.

Constitutionally, this process starts with the present Chief Justice making his recommendation to the Prime Minister, who in turn will advise the Conference of Rulers on the suitable candidate. The Yang di-Pertuan Agong will then make the appointment upon the advice of the Prime Minister with the concurrence of the Malay Rulers.

Though the selection process is confidential, in the best traditions of Malaysian soothsaying, several names have been bandied about. Tan Sri Zaki Tun Azmi, the President of the Court of Appeal; Tan Sri Alauddin Mohd Sheriff, the Chief Judge of Malaya; and Federal Court judge Datuk Ariffin Zakaria are reportedly the front runners.

Alauddin and Arifin were both career officers from the Judicial and Legal Service before their elevation to the bench. Zaki served for a while in the Judicial and Legal Service before going into private practice.

Zaki had a successful law practice and was for many years the principal legal counsel for Umno and had also served on the party’s Disciplinary Committee. He holds the singular distinction of being the only member of the Bar to be elevated straight to the Federal Court. However, Zaki’s elevation and his subsequent appointment as President of the Court of Appeal were opposed by some, mainly politicians across the aisle. Their concerns were mostly related to Zaki’s political affliliation.

The Bar Council, while congratulating Zaki, noted that: “There are the added concerns of his previous business interests and his involvement in Umno. We trust these concerns will be dispelled by a display of integrity and exemplary performance on the bench by Tan Sri Zaki. Society must be left in no doubt that the Judiciary is free from any allegiances or alliances and that it is above reproach in all respects.”

To date, there has not been any indication that Zaki’s conduct on the bench has been anything but exemplary. There has not been an occasion where his previous political affiliation or business interest has in anyway influenced his judgment; nor has there been any evidence of partisan politics at play in the current workings of the Judiciary.

In an ideal society, the doctrine of separation of powers would demand that the various branches of government are independent of one another. But we do not live in an ideal world. Judges too are political actors in the administration and governance of a nation. Every one of us would have some political inclination. We may not be card carrying members of political parties, but we are not devoid of some political inclination; be it as a liberal democrat, socialist, republican or some other political persuasion.

It is not uncommon for politicians to assume judicial office. The Republican politician, William Howard Taft, who was elected the 27th President of the United States, subsequently became the 10th Chief Justice of the Supreme Court having been nominated by another Republican President, Warren G. Harding, and confirmed by the US Senate.

In fact, presently in some states like California and North Carolina, the State Supreme Court judges are elected by the electorate in a general election. Candidates can and do run along party lines and partisan politics. A lawyer I met during a recent visit to the United States told me that when elections for the judges began, he gave US$200 in campaign contribution to each of the candidates in order to hedge against any fallout at future appearances before the victorious candidate. I found the spectacle of judges canvassing for votes from lawyers highly amusing.

On the other hand, in the state of Nebraska, I found that the State Supreme Court judges were appointed by the Governor for six years and are reconfirmed every six years in a referendum by the electorate. Here, the system allowed the electorate to act as a check and balance on executive power. However, a populist judge need not necessarily be the best in administering and dispensing justice.

No one system is perfect. They have their advantages and pitfalls. The system is only as good as the people who administer it. The selection process must be able to weed out the incompetent and unqualified. However, to dismiss a person’s qualification to hold judicial office based merely on political affiliation is unconstitutional and would set a dangerous precedent. Political preference, or affiliation, cannot be a bar to employment.

*Vazeer Alam Mydin Meera was a Bar Council treasurer and also former chairman of the Kedah/Perlis Bar.

Mahkamah Rayuan tersilap terima laporan DNA

Canny Ong©Utusan Malaysia

PUTRAJAYA 13 Okt. - Mahkamah Rayuan tersilap kerana menerima laporan ujian asid deoksiribonukleik (DNA), tanpa penelitian mendalam ketika mengaitkan bekas pencuci kabin kapal terbang, Ahmad Najib Aris dengan pembunuhan penganalisis teknologi maklumat, Canny Ong Lay Kian.

Peguam Mohamad Haniff Khatri Abdulla ketika berhujah di Mahkamah Persekutuan menyatakan, antaranya ujian DNA melibatkan sepasang seluar jeans mengandungi percikan darah si mati yang dipakai oleh Ahmad Najib (perayu) pada malam kejadian berlaku.

Menurut beliau, panel yang mendengar rayuan itu turut tersilap ketika menerima bukti keterangan bahawa perayu mempunyai akses pada sehelai kain yang ditemui terlilit pada leher dan pinggang mangsa.

''Laporan ujian DNA (P83) yang mengaitkan perayu dengan pembunuhan Canny Ong diragui kesahihannya dan tidak boleh diterima masuk sebagai bukti keterangan, maka keputusan yang diperolehinya juga wajar diketepikan.

''Laporan DNA yang merupakan cebisan keterangan yang cukup penting bagi menyokong kes pendakwaan telah 'tercerai' dan menjadikan tiada bukti kukuh bagi mengaitkan perayu dengan tuduhan itu," ujar Mohamad Haniff Khatri.

Ahmad Najib turut diwakili barisan peguam, Mohd. Nadzim Ibrahim, Rosal Azimin Ahmad dan Amir Ajree Meor Nordin.

Ahmad Najib merayu terhadap sabitan dan hukuman gantung kerana membunuh Canny Ong, 29, serta penjara maksimum 20 tahun dan sebatan 10 kali kerana merogol mangsa yang diputuskan oleh Mahkamah Tinggi Shah Alam, Selangor pada 23 Februari 2005.

Dia melakukan perbuatan itu antara pukul 1 dan 5 pagi, 14 Jun 2003 di Batu 7, Jalan Klang Lama, Petaling Jaya, Selangor.

Plot kejadian tragis itu bermula apabila Canny, 29, ditemani ibu, Pearly Visvanathan dan adik perempuannya menghadiri majlis makan malam di Restoran Monte di Pusat Beli-Belah Bangsar (BSC) Kuala Lumpur.

Dia kemudiannya hilang dipercayai diculik setelah dilarikan bersama kereta Proton Tiara sebelum mayatnya dijumpai berkeadaan hangus di dalam lubang pembetungan seluas 1x1x1 meter dengan kedua-dua tangannya bersilang di atas dada dan kakinya terjuntai keluar dari lubang itu.

Tubuh mendiang dihimpit di bawah dua buah tayar besar berisi simen, empat hari selepas dia diculik dari tempat meletak kereta BSC.

Mohamad Haniff Khatri selanjutnya berhujah, mahkamah tersilap ketika menyimpulkan tiada kemungkinan orang lain terlibat menyebabkan pendarahan, kecederaan pada leher mangsa serta menyumbatkannya dalam lubang pembentungan sebelum membakarnya.

Beliau berkata, ini kerana tayar besar dan bersimen yang menindih mayat Canny terlalu berat untuk diangkat oleh kudrat seorang manusia yang memungkinkan wujudnya penglibatan orang lain.

Muhammad Haniff Khatri turut menghujahkan, panel hakim Mahkamah Rayuan tidak mempunyai bidang kuasa mendengar rayuan Ahmad Najib dan menilai keterangan atau penemuan fakta tanpa merujuk kepada penghakiman Mahkamah Tinggi.

Peguam bela menghujahkan, tindakan panel berkenaan meneruskan proses memeriksa dan menilai semua keterangan lain seolah-olah mahkamah itu mengendalikan perbicaraan asal, sedangkan ia tidak sah di sisi undang-undang.

Panel lima hakim diketuai oleh Datuk Arifin Zakaria menetapkan esok bagi mendengar hujah Timbalan Pendakwa Raya, Datuk Nordin Hassan.

Beliau bersidang bersama Hakim-Hakim Datuk Nik Hashim Nik Ab. Rahman, Datuk S. Augustine Paul, Datuk Hashim Yusoff dan Datuk Zulkefli Ahmad Makinudin.

Cocktail of sleaze allegations poses threat to political stability.

OCT 14 - No one can say Malaysian politics lacks lurid stories. The grisly killing of a Mongolian model, links between that murder and the man tipped as Malaysia's next prime minister, fresh accusations that former deputy premier Anwar Ibrahim is a sodomite and sedition charges against a popular online editor are among the big issues in the press in Malaysia over recent days.

That is to say nothing of the decision by the prime minister, Abdullah Badawi, not to run in the next election as a way of averting an uprising against him within the ranks of his own United Malays National Organisation party, which forms the core of the National Front coalition that has ruled Malaysia since it became independent in 1957.

All the stories are technically separate, but connected in a thickening web of sleaze.

The government had a disastrous showing in elections in March, which combined with rising fuel costs and financial fears, is generating the kind of turbulence that threatens stability in the southeast Asian nation.

Abdullah's decision to step down opens the door for his deputy Najib Razak to become premier. The former defence minister is also the subject of lots of speculation, although not in the mainstream media, which is
effectively controlled by political parties in Malaysia. The country's hundreds of blogs are seen as independent platforms and offering anti-government commentaries on social and political issues.

The editor of the best-known anti-government news website, "Malaysia Today", is on trial on sedition charges for implying that Najib and his wife, Rosmah Mansor, were involved in the 2006 killing of Altantuya Shaariibuu, a 28-year-old Mongolian interpreter and model.

Journalist Raja Petra Raja Kamaruddin, who also faces other accusations of trying to undermine the government, made the accusations in an article on April 25th titled "Let's Send the Altantuya Murderers to Hell". Raja Petra (58), who denies the accusation, is already in jail in a separatecase under national security legislation that allows indefinite detention without trial.

The two cases against Raja Petra have provoked an outcry against the government, with detractors accusing it of misusing the judiciary to crack down on critics and suppress freedom of speech. If convicted, Raja Petra faces up to three years in jail.

Two policemen have been accused of shooting Altantuya Shaariibuu twice in the head and then blowing up her body with explosives in a jungle clearing near Kuala Lumpur.

Abdul Razak Baginda, a close associate of Najib, is charged with abetting the murder. All three are currently on trial. The two policemen were part of the Special Action Squad, an elite team of bodyguards directly under
Najib's control when he was defence minister.

Najib's name has barely come up in official media reports about the murder, except to say that he swears before Allah that he didn't know the woman.

Some websites say that it was Najib who in fact introduced the translator/model to Abdul Razak, allegations they say are backed up evidence.

But there are a whole series of sub-plots to the mystery, involving tampering with statements, disappearing witnesses and interference with witnesses.

In a letter she left behind, Shaariibuu claimed she had been blackmailing Abdul Razak without giving any details.

The prosecution says Abdul Razak had her killed because she pestered him for money after he ended an affair to support a child that she claimed he had fathered.

Najib is also being linked to accepting a large commission through a private company "for co-ordination and support services" on the purchase of French submarines for the Malaysian military.

Watching these various strands draw together is opposition leader Anwar Ibrahim, who says he has won over enough defectors from the government to form a new administration and is confident the country's beleaguered government will be gone by the important Eid al-Adha Muslim festival, which falls on Dec 8th.

There are suspicions Anwar is crying wolf - his earlier self-imposed deadline of September 16th for his supporters to walk across the house and force a confidence vote passed. "We have built our base to go
forward, if it does not happen this week or next week, it can possibly happen before Eid al-Adha," he told the Berita Harian newspaper, adding that it would happen peacefully. He needs 30 MPs to walk over in order to
have a majority in the 222-seat parliament.

At present the opposition coalition, made up of Anwar's Keadilan party, the Parti Islam Se-Malaysia and the Democratic Action party, has 82 seats.

Anwar is one of Malaysia's best-known political figures. He was dismissed in the late 1990s by then premier Dr Mahathir Mohamad after he started calling for Mahathir to quit.

He was charged with sodomy and corruption and the image of him in court in 1998 with black eye and bruises after he was beaten up by a police chief was flashed around the world.

He was convicted on both charges and spent six years in jail. Human rights groups called him a political prisoner.

Malaysia's Supreme Court overturned the sodomy conviction in 2004, after Abdullah became prime minister following Mahathir's retirement, and he was freed from prison.

Anwar was in court again last week on fresh charges of sodomising a young aide, charges that the father of six says are politically motivated.

But if he is convicted it will be a serious setback to his political ambitions. Whatever happens, Malaysia's political scene is hardly likely to get any less colourful in the coming months. - Irish Times

SMS poser begs an answer

COMMENTARY

OCT 14 - No one has answered the million ringgit question yet: is the SMS exchange on the Altantuya murder case between Datuk Seri Najib Razak and a prominent lawyer authentic?

If it is not, then it should be put down as yet another move by critics of the government to discredit the man slated to be the next prime minister of Malaysia; dismissed as another desperate attempt to implicate Najib in the murder of Altantuya Shaariibuu.

If it is authentic, then the disclosure raises a whole host of questions. How did private and confidential SMS records of two individuals reach the public domain? Was Najib interested in the case because his advisor Abdul Razak Baginda was a central figure? Was there something sinister or inappropriate in any of the exchanges between Najib and Datuk Shafee Abdullah?

Did Najib use his position as the DPM to interfere in the progress of the murder investigation or did he merely make a few telephone calls to find out the gravity of the situation facing his friend?

Nobody in the government has said anything since the SMS exchange was posted on Malaysia Today, the website owned by Raja Petra Kamarudin, the blogger who is being detained under the Internal Security Act.
Prime Minister Datuk Seri Abdullah Ahmad Badawi’s attempt to protect his number two was clumsy.

At a press conference yesterday, a journalist from a local daily broke the monotony of questions on the economy by asking the Prime Minister his thoughts on the SMS. Abdullah, either because he did not catch the question or because he wanted to stay on message and only speak on the economy, ignored the reporter. Later on, he walked up to the reporter and sought a clarification on the question.

The reporter elaborated a bit more on the SMS exchange between Najib and Shafee. The press conference was reconvened and Abdullah defended Najib.

“I can't believe Datuk Seri Najib wants to abuse power. If he's the one who is inclined to abuse power, then how could he be my successor? I believe in him, I believe he's a good person and he would be a good prime minister, “ said Abdullah.

The problem with this stout defence of his deputy is that it does not answer the most important question swirling out there today: is the SMS exchange between Najib and Shafee authentic?

Continuing silence on this matter will not help Najib or the Abdullah administration. Continued silence on this matter will also create paranoia on the strength of firewalls and security measures of Malaysia’s telcos.-themalaysianinsider

Dewan Rakyat 13/10/2008 Q&A

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