THE JOURNAL consists of selected, most notable and newsworthy POSTINGS OF THE DAY.

Friday, March 27, 2009

> We live in confusing times

On Tuesday, we read about the call for change and improvement by our leaders.

However, just a day or two before that, we also read about the suspension of Harakah and Suara Keadilan, the denial of media accreditation for the Umno General Assembly to The Malaysian Insider, Malaysiakini, the Nutgraph and three others, the breaking up with tear gas of the PKR rally in Bukit Selambau (and the arrest of 21 people) and, of course, the charging of Karpal Singh with sedition.

So why is there this terrible disconnect between what our politicians are saying and what is happening on the ground? Is this a case of over-zealous functionaries trying to second-guess the powers that be? If that is the case then it is easily remedied by immediately reversing these orders. However (as I suspect it is), if these orders have the approval of those at the top, then this is a case of a serious mismatch of word and deed.

This Jekyll and Hyde syndrome reflects an undignified sense of insecurity. Our leaders must make up their minds. Are they interested in upholding the rule of law and our democratic institutions or are they insistent on showing utter contempt for all that we hold dear just to protect the interests of a few? If only they would realise that they are more likely to win the popularity contest if they would instead show utter contempt for dishonesty and injustice and constancy in protecting the rule of law, the independence of our institutions and the freedoms of our people. If only they would realise that the whole world is watching us and that our platitudes on human rights (particularly at the universal periodic review that just took place) ring very hollow.

If this was a fairy tale it would be that of the “Emperor’s New Clothes”. Interestingly in that tale (as in any similar tale), what kept the emperor in denial was the presence of so-called loyal, sychophantic subjects who told the emperor only what he wanted to hear and shielded him from what was in fact the truth.

Another case of mismatch of word and deed is to be found in the case of Karpal Singh’s charge under the Sedition Act. For a start, those who formulated the charge may want to reconsider it in the light of the amendment to the Federal Constitution (pushed through Parliament when the Barisan Nasional had a two-thirds majority in the House) that set up the Special Court. Article 182(2) states that any proceedings by or against the Yang di-Pertuan Agong or the Ruler of a state in his personal capacity shall be brought in the Special Court. Of course there is an argument that the acts of a Sultan in his official capacity are not acts done in his “personal capacity” but it has been suggested that official acts are included. The point is, Parliament, under the aegis of the Barisan Nasional, saw fit to remove the absolute immunity of the Rulers and allow for suits to be filed against them. It therefore follows that one can disagree with, and take legal action to challenge, some acts of the Ruler. Whether such a legal action falls within the ambit of Article 182(2) of the Federal Constitution is something for a court to decide if and when such legal action is instituted. In framing charges against Karpal Singh under the Sedition Act, the authorities appear to have overlooked this constitutional amendment and acted precipitately. I would argue that the particular section in the Sedition Act must be interpreted subject to the constitutional amendment.

Then there is the point of selective prosecution. Let us reflect. There are many who have commented on the Perak crisis from a legal and constitutional perspective and have discussed the actions of the Sultan. However, we must surely also recall the public discussion last year of the appointment of the Terengganu menteri besar that involved the palace. On March 19, 2008, the Attorney-General was reported to have said of our Yang di-Pertuan Agong that “His Majesty cannot interfere in the appointing of the menteri besar.” If one also recalls, it was reported that the palace’s candidate for menteri besar Datuk Ahmad Said, was initially stripped of his Umno membership and 22 assemblymen were going to boycott his swearing in as menteri besar in defiance of the palace. In fact these assemblymen were planning a protest walk from Seri Iman to Istana Tamu. Needless to say there were no prosecutions under the Sedition Act in any of these cases.

More recently, on Monday the Attorney-General put before the Federal Court for consideration four questions, every one of which involved in some way the powers of the Sultan of Perak in appointing the new menteri besar. One example is Question 2 which states : “Sekiranya jawapan kepada persoalan pertama adalah ya, persoalan seterusnya ialah sama ada perkara Duli Yang Maha Mulia Sultan Perak tidak memberikan perkenan itu sah di sisi undang-undang.” Had the application succeeded it would have necessitated arguments on the very issues that Karpal Singh had commented on and for which he is being charged with sedition. Perhaps it is timely for a reconsideration of the charge against him in view of these inconsistences.

“Never do anything against conscience, even if the state demands it” — Albert Einstein

I have often wondered if there was not one man or woman somewhere in our great machinery of government including our parliamentarians, who felt at some point that their conscience did not permit them to carry out or support an act that was so plainly unjust, partisan and unfair. If there is, or are, resignation on principle sends a good message but those who can’t do this must at the very least make it clear that they will play no part whatsoever in acts that smack of abuse of power.

Our hope therefore ultimately lies with the people. Malaysians have changed dramatically; we are more vocal, we are not prepared to suffer in silence or to watch others suffer and most importantly we see clearly what is happening before us. We are bored with explanations or statements that insult our intelligence. We do not accept pronouncements by the authorities or those in power that lack substance. We do not “buy” the divisive rhetoric hurled at us. We are disgusted at the repressive conduct and attempts to muzzle dissent. There must be a “passive resistance” by the people against unjust actions. We have seen ordinary people producing extraordinary results when they stand firm against injustice, dishonesty and the destruction of our institutions. Indeed, what we have seen is an awakening of the will, wisdom and the collective conscience of the Malaysian people. And that is a formidable force that those in power ignore at their peril - The Malaysian Insider.

Datuk Ambiga Sreenevasan, the immediate past president of the Bar Council, joined the legal fraternity in 1982. She was Bar Council president two years in a row from 2007. A litigation lawyer, she runs her own practice.