Wednesday, August 31, 2011

‘Malaysia Solution’ illegal says Australian court

‘Malaysia Solution’ illegal says Australian court

UPDATED @ 01:05:45 PM 31-08-2011
August 31, 2011
The Malaysian Inasder

A screenshot of the web edition news from the Sydney Herald News.
KUALA LUMPUR, Aug 31 — The refugee swap deal between Australia and Malaysia has been deemed illegal by Australia’s High Court today.

The hugely controversial arrangement has been popularly referred to as the “Malaysia Solution” in Australia.

The Sydney Morning Herald ran an Australian Associated Press report that quoted Chief Justice Robert French as saying that “the declaration made... was made without power and is invalid.”

The court barred asylum seekers held by Australia from being sent to Malaysia, a ruling which likely scupper the swap deal intending to send 800 boat people to Malaysia in exchange for 4,000 already processed refugees here to Australia.

The move was put on hold earlier this month after Melbourne lawyer David Manne won a High Court injunction to prevent deportations pending a decision on the deal.

He argued that Australian-held asylum seekers had rights to refugee protection assessed in Australia, and that the High Court could review Bowen’s declaration that Malaysia was a suitable destination for offshore processing.

With Canberra agreeing to pick up the RM1 billion bill for the swap, the Gillard administration's popularity has sunk under pressure from opposition leaders and human rights activists in both Pacific nations.

But Australia’s Labor government insists the swap will stem human trafficking despite a Parliament motion condemning it due to concerns over Malaysia’s treatment of refugees.

There has also been concerns that a biometric system used in Malaysia to register migrants is “riddled with problems” and reports of scalps taking advantage of an ongoing amnesty programme for illegal immigrants have raised further questions over its ability to deal with incoming asylum-seekers.

According to the AAP, refugee lawyers asked the High Court to strike down the deal, arguing that Immigration Minister Chris Bowen did not have the power to send asylum seekers to a country that has no legal obligations to protect them.

They also argued that sending unaccompanied minors to Malaysia would breach the minister's duty of care as their legal guardian to act in their best interests.

But the government's Solicitor-General Stephen Gageler had argued the government could lawfully declare Malaysia a safe third country even though it had no domestic or international legal obligations to protect asylum seekers.

Tuesday, August 30, 2011

PM entering 'Pak Lah' phase, says DAP analyst

PM entering 'Pak Lah' phase, says DAP analyst
Nigel Aw
Aug 29, 11
7:16pm

The reported dip in Prime Minister Najib Abdul Razak's approval rating signifies the reservoir of goodwill towards the premier has run dry and his popularity is on the decline, just as it was with his predecessor, says DAP analyst Liew Chin Tong.

In a report released by Merdeka Center for Opinion Research today, the pollster says the prime minister's support had fallen six points to 59 percent, the lowest in nearly two years.

NONE"I think Najib is entering the Pak Lah phase. Things are recurring, like it was during the Pak Lah era," said Liew (left).

The people had great expectations of former prime minister Abdullah Badawi, or Pak Lah as he is popularly known, when he took over the reigns from Dr Mahathir Mohamad's 22 years of authoritarian rule.

The former premier had vowed to eradicate corruption, garnering him monumental support and a staggering approval rating of 91 percent when he first took office in 2004, according to the same pollster.

However, Abdullah's failure to deliver saw the BN coalition, which he led into the 2008 general election, lose its two-thirds majority in Parliament for the first time, and by September that year, his approval rating experienced a free fall, giving him a meagre 43 percent.

Liew, who is also MP for Bukit Bendera, said Najib's decline in popularity was a sign that his policies had failed.

"It is a clear signal that he has to do a U-turn, for whatever he is trying to do has not paid off," he said.

'Najib's honeymoon period over'

However, when it was pointed out that the premier's approval rating had skyrocketed when he first introduced his policies, Liew explained that it was due to low expectations following his predecessor's dismal performance and a hope for change.

"Najib had an extended honeymoon period, especially among the Malay voters, but all that is now waning off," he said.

When Najib first assumed office, his approval rating was even lower than that of Abdullah, at 45 percent. But the premier's break from Pak Lah's style of management saw his support climb steadily to an all time high of 72 percent.

However, since then, Najib has pushed through several reforms, including slashing subsidies, while the more controversial reforms such as the Goods and Services Tax (GST) has been put on hold.

The move has seen an increase in cost of living which, according to Merdeka Center, has chipped off at the premier's approval ratings.

Najib had on July 27 introduced a new Key National Results Area for the Government Transformation Programme, specifically aimed at reducing the cost of living - but today's ratings suggest it has done little to combat the spiralling cost of living - which is costing the prime minister his acceptance by the rakyat.

Najib's approval rating dips 6 points to 59%

Najib's approval rating dips 6 points to 59%
Nigel Aw
Aug 29, 11
1:12pm

Prime Minister Najib Abdul Razak's approval rating has declined six points to 59 percent, according to the latest report by independent pollster Merdeka Center for Opinion Research.

Merdeka Center attributes the decline to increased concerns over the spiraling cost of living as consumers begin to feel the impact of recent increase in fuel and electricity prices.

NONEThe pollster also acknowledged that the way the government handled the Bersih 2.0 rally had generated some "adverse" negative perceptions and eroded the prime minister's support.

The latest announcement puts the prime minister's approval rating at its lowest point in nearly two years.

Najib's approval rating has been on a steady decline since June 2010, after having achieved a record high of 72 percent.

This is the first time that his approval rating hits below 60 percent since September 2009 when he scored 56% - his second lowest after his not-so-impressive showing of 45% in May, a month after he took the helm from Abdullah Ahmad Badawi [see below].

On the up side, the number of people who are dissatisfied with the prime minister remained unchanged at 27 percent.

The survey period was between Aug 11 and Aug 27 which coincided with the announcement of the proposed parliamentary select committee on electoral reform, and a month after the Bersih rally of July 9.

Down three points

The survey, based on 1,027 respondents, found that slightly more than half - 51 percent - felt that the country was going in the right direction, down three points.

Along ethnic lines, Najib's support among ethnic Malays declined slightly by four points, down from 73 percent, whereas support from the ethnic Chinese tumbled, dropping a whopping 11 points to 38 percent.

The outlook of Indian Malaysians on the direction the country has taken also took a dive from 54 to 39 points, but interestingly, they are the only group to have increased their support for Najib, up two points from 67 percent.

Based on the survey, almost one third of respondents are worried about the rising cost of living, a concern that cuts across ethnic lines.

Najib had on July 27 announced that the seventh National Key Results Area will be introduced to the Government Transformation Programme to address the spiralling cost of living, but it appears to have done little to soothe concerns.

Najib's popularity rating (2009-2011)

2009

May - 45%
June - 65%
July - 64%
Sept - 56%
Dec - 66%

2010

March - 69%
May - 72%
Nov - 69%

2011

March - 67%
May - 65%
Aug - 59%


Pollster: 88% of M'sians back Bersih demands

Pollster: 88% of M'sians back Bersih demands
Nigel Aw
Aug 29, 11
3:33pm


More than two thirds of Malaysians agree with the demands advocated by electoral reform group Bersih 2.0, says pollster Merdeka Centre for Opinion Research.

public responses to electoral reforms 290811 merdeka center pollA survey of 1,027 respondents from Aug 11-27 found an overwhelming number of Malaysians - 88 percent - want a review of the electoral roll and for it to be cleaned up.

The support cuts across ethnic lines, with 89 percent of Malays, 85 percent of Chinese, and 88 percent of Indians wanting the electoral roll to be cleaned up.

The vast majority of Malaysians also support other aspects of electoral reform, with 70 percent of Malaysians agreeing to the use of indelible ink and the presence of foreign observers during elections.

Bersih 2.0 and the opposition have been advocating the use of indelible ink to prevent the issue of phantom voting but the government has proposed the use of the biometric system, which will cost significantly higher.

election commission chief abdul aziz yusofFurther, Election Commission chief Abdul Aziz Yusof (left) recently conceded that the biometric system would inherently have more problems and has promised to consider both options.

Also, 68 percent of respondents agree that the opposition should have access to the mainstream media, a medium that is controlled and dominated by the ruling coalition.

Like other aspects of reforms, trends indicate that such support cuts across ethnic lines.

While the pro-reform stance on the electoral system may reflect what Bersih 2.0 is advocating for, only 49 percent of those polled were aware of the group's actual demands.

Degree of sympathy

Despite this, there appears to be a degree of sympathy for the electoral reform coalition of 62 NGOs, as almost half, or 48 percent of Malaysians, disapprove the government's handling of Bersih's July 9 rally, with only 39 percent agreeing.

The overwhelming dissatisfaction comes from the Chinese community with a record 68 percent followed by Indians at 55 percent.

However, the majority of Malays approved of the government's handling of the July 9 rally which stood at 57 percent as opposed to 37 percent who disapproved.

Bersih is calling for the electoral roll to be cleaned up, reforms to postal voting, use of indelible ink and free and fair access to the media.

The group also wants a minimum campaign period of 21 days, the strengthening of public institutions and a stop to corruption and dirty politics.

In reaction to sustained pressure from the coalition, the government has since announced that it will be setting up a parliamentary select committee on electoral reform.

However, Prime Minister Najib Abdul Razak's refusal to guarantee that the electoral reforms would be put in place before the next general election is called has dampened all hopes in the proposed committee.

Monday, August 29, 2011

Pua: Sack those responsible for RTM1's 'Murtad' report

Pua: Sack those responsible for RTM1's 'Murtad' report
Aug 28, 11 1:27pm


DAP has lashed out at an RTM1 report which linked opposition leaders to the 'Murtads in Malaysia & Singapore' Facebook group.

It was shown on its 8pm prime-time news slot last night.

DAP national publicity secretary Tony Pua said in a statement that Information, Communications, and Culture Minister Rais Yatim must take responsibility for what he termed as "the most despicable piece of incendiary false news reporting on national TV, and ensure that those responsible for it are sacked immediately".

NONERTM1 had highlighted the alleged association of DAP leaders such as Tan Kok Wai, Charles Santiago, Boo Cheng Hau, Ean Yong Hian Wah with the group.

Pua considered this as "despicable and sickening".

The MP for PJ Utara added that RTM1 even placed the spotlight on the chairpresident of Parti Socialis Malaysia (PSM) and the state assemblyperson for Kota Damansara, Dr Nasir Hashim (above), insinuating the betrayal of his own faith.

He said this "news" report was obviously calculated to inflame sentiments and anger among Malays and Muslims in the country, especially towards Pakatan Rakyat whose leaders' names were "found" to be part of the group.

"The problem is those responsible in RTM1 obviously did not bother to find the truth to the story but went ahead to make the baseless insinuations above.

"RTM1 either were too ignorant to know, or did not want to know the fact that the 'add to group' function in Facebook is such that you cannot prevent a group administrator from adding you to any group.

"There is no requirement to secure one's permission or approval for adding a Facebook member to a group. Therefore all of the accused 'supporters' of the Facebook page did not intend to, or never knew they had 'joined' the group."

NONEPua said RTM1 was completely unethical in its reporting by not first verifying the above information with the relevant people who were 'implicated' by the Facebook page, especially since they were Pakatan leaders who were easily accessible.

He felt RTM1 should have instead made a news report to cite the existence of the 'Murtads in Malaysia & Singapore' Facebook page and criticising the administrators for adding Pakatan leaders to the page, to cause anger among the people.

"However RTM1 chose to emphasise the supposed support shown by these leaders to the page. RTM1 must be charged for making and disseminating false news to incite hatred among ordinary Malaysians," said Pua.

False news report

He added that this false RTM1 news report followed closely upon another allegedly fake news item aired by private television station TV3 on Aug 21 which claimed that proselytisation was taking place at a tuition centre in Old Klang Road after complaints by a non-existent 'Surau Al-Musyrikin'.

"It is absolutely clear that the above incendiary and seditious false news reports by the government-owned and Umno-associated media organisations are part of a systematic and orchestrated campaign to divide the people and retain power for BN in the next general elections.

rais yatim pc 020709 01"The desperation of the Najib administration is so deep that BN is willing to not only spread false news, but also to use the highly-charged religious sentiments to tear the country apart."

He said DAP condemned the actions of the TV stations in the strongest possible terms and demanded that Rais (right) apologise on behalf of the TV stations for making false and seditious news reports.

"Rais must also conduct an immediate investigation into the completely lack of professionalism in both RTM1 and TV3 and insist that the responsible parties are removed from the posts" he concluded.

Saturday, August 27, 2011

Teoh Beng Hock’s death: AG and police must act on the RCI report


( Spoke at DAP Pelangi branch dinner, Ipoh on Saturday, August 27, 2011)
.

On July 15, 2009, Teoh Beng Hock was called by MACC as a witness to assist in an investigation.
Then he died mysteriously the next day.

As a result of this tragedy which MACC must be held responsible and accountable, a
family lost a pious son, a fiancee lost her soon to be husband and a boy lost his father before he was born.

How a witness could die so mysteriously, the nation wondered and demanded answers. The Prime Minister Dato Sri Najib promised that “no stone would be left unturned “to find the cause of TBH’s death.

The Royal Commission of Inquiry (RCI) was set up following the Inquest’s open verdict.
But RCI ‘s conclusion has raised more questions than answers.

Although RCI has concluded that TBH had been driven to commit suicide by “aggressive, relentless, oppressive and unscrupulous” interrogation by three MACC officers, the conclusion was not able to bring a closure to the issue.

Teoh family was very disappointed with and rejected the RCI findings and conclusion.

I was told that some Chinese believe that when a person dies, he becomes a
ghost. I learned that TBH’s mother, when asked to comment on the RCI report, had told a Chinese newspaper that she hoped her son the ghost would avenge his own death.

These are the words and feelings of a mother who had waited and hoped for more than two years for the truth of her son’s death and for justice to be done. Yet she ended up totally heart broken.

Prime Minister Dato Sri Najib said that there should be a closure on TBH issue with the release of RCI report and findings. How can there be a closure when the RCI findings and conclusion have been so widely questioned?

Former Court of Appeal judge Datuk N.H. Chan has called the three judges on the five-man panel “three blind mice” for concluding that Teoh killed himself despite lacking expert opinion.

It has been more than two months since the RCI report was submitted to the Agong and government. It has also been more than a month since the RCI report was made public.

But two key questions have remained unanswered.

Firstly, why no action has been taken against the MACC officers implicated in the report for driving TBH to death?

The Attorney General owes Malaysians a public explanation on this question.

Secondly, since the RCI report has implicated the MACC officers, why have not the police arrested them to carry out further probe?

RCI found that the MACC officers had lied. Surely a further probe is a must to find out what had been covered up.

Electoral reform: How does M'sia fare?

Electoral reform: How does M'sia fare?
John R Malott
Aug 27, 11
7:51am
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COMMENT This is the second of two articles about proposals that have been made for electoral reform in Malaysia, counter-statements by the government, and how Malaysia's situation compares to that of other countries.

Allow overseas voting


Many Malaysians have called for voting rights for all Malaysians who live abroad, and not just for government workers and military who are assigned overseas or Malaysians studying in foreign countries.

There are over one million Malaysians living overseas, but according to Election Commission deputy chief Wan Ahmad Wan Omar, only 2,500 of them are eligible to vote.

NONEThe government has not provided any convincing reason why all Malaysians overseas should not be permitted to vote. However, two days ago EC chairperson Abdul Aziz Yusof (left) said that "hopefully" all registered voters living overseas will be able to vote in the next general election.

To date, the government has resisted allowing overseas Malaysians to vote out of concern that many of the Malaysians who live overseas do not support Umno or its coalition partners. In addition, the ethnic reality is that many of the Malaysians living overseas are non-Malay, and likely not to vote for Umno.

So Umno's conclusion is that permitting overseas Malaysians to vote therefore might work against its interests.

There is no clear international consensus on what right citizens who live overseas have to vote in their home countries.

The ACE Electoral Knowledge Network examined the practices of 214 countries and territories. It reports that 115 countries, just a little over half, permit their citizens to vote from abroad. Malaysia is one of those countries. The other 99 countries and territories do not allow overseas voters.

ACE says that 80 of those 115 "OK to vote" countries do not impose any conditions on overseas voting, except that the voter must be a citizen. However, the other 35 countries, including Malaysia, impose restrictions. Those restrictions concern either the reason or the length of time that a person is overseas.

Malaysia is one of a number of countries to impose "activity-based restrictions." Why are you overseas? In Malaysia's case, only diplomatic officers and students abroad may vote. A number of other countries have the same conditions, such as India, Singapore, and Israel.

pulau ketam village head election 310711 votingSome countries, usually those that do not impose "activity-based" or job-related restrictions, impose a time restriction. The assumption is that a citizen who has lived abroad for a number of years and perhaps become a permanent resident in another country should not be eligible to vote in national elections.

Australia, for example, denies the right to vote to any Australian citizen who has lived abroad for more than six years. For the UK, it is 15 years. For Germany, it takes 25 years before a German citizen overseas loses the right to vote.

In short, there is no clear international consensus. Half of the world's countries do not permit overseas voting. But of those that do, Malaysia has some of the more restrictive conditions.

A national discussion about the eligibility of Malaysians overseas to vote therefore would be a useful part of the dialogue on electoral reform.

Provide fair access to media

Well-informed voters - which can come only from the free flow of information about parties, candidates, and their positions - are essential to a healthy democracy. Bersih 2.0 has called for free and fair access to the media for all political parties.

There have been many international reports that support Bersih's position. Reporters without Borders places Malaysia 141st out of the 178 countries in its Press Freedom Index.

The US Department of State Country Reports on Human Rights Practices declares that Malaysian opposition parties are unable to compete on equal terms with the governing Umno-dominated coalition because of restrictions on campaigning and freedom of assembly and association.

The State Department reports that "news of the opposition is tightly restricted and reported in a biased fashion."

Let's take a look at the ways in which information about parties, candidates and their positions are disseminated in Malaysia.

1) The state-owned and controlled media, RTM and Bernama, are supposed to be public institutions for all citizens in Malaysia, because they are supported by all taxpayers regardless of their political affiliation.

In reality, RTM and Bernama have become propaganda arms of Umno and BN. RTM evens uses taxpayers' money to broadcast Umno's political assemblies. RTM and Bernama take their political direction from the prime minister and the Information Ministry. They praise the ruling parties and castigate and demonise the opposition.

In other countries with publicly-owned broadcast systems - for example, the UK, Australia, Japan, and the United States - access is provided to all political parties, and an effort is made to be politically impartial.

EC deputy chief Wan Ahmad has said that he cannot compel newspapers and television stations to report on the opposition. That, of course, is true. It is not within the EC's authority. But it is within the government's authority and therefore a legitimate topic for discussion.

NONE2) In Malaysia, privately-owned newspapers and television stations are owned by companies under the control of Umno, MCA and MIC, and can disseminate their views freely, to everyone.

By contrast, there are no television or radio stations owned by supporters of the opposition, and opposition newspapers cannot be sold openly. They can only be distributed to party members, a clearly discriminatory practice.

3) Wan Ahmad says that despite these restrictions, the opposition and its supporters have access to alternative media sources, meaning the Internet and its websites and blogs. That also is true. But it does not make for a level-playing field. The opposition is forced to campaign with one hand tied behind its back. They have a rifle, but the other side has a cannon.

Some alternative sites clearly are supporters of the opposition. Others (like Malaysiakini) try to provide a point of view that is more balanced than the mainstream media. As a result, their reporting does not always please Malaysia's rulers.

These alternative media outlets therefore have been subject to government harassment, such as the denial of service attacks that were launched against Malaysiakini during the recent Sarawak elections. This too cuts off the free flow of information to Malaysian voters.

Over two centuries ago, Thomas Jefferson wrote, "Our liberty cannot be guarded but by the freedom of the press." Organisations and governments throughout the world have made it clear what they think about press freedom in Malaysia. It is no wonder that Malaysia ranks 141st in the world - even below Zimbabwe.

Ensure an impartial EC

Around the world, there probably are thousands of different ways in which governments at all levels - national, state, and local - organise and conduct elections. Because of this great variety, foreign analysts would not insist that there is one "right way" to organise and manage elections. Instead they would focus on some basic principles.

There are a number of questions that should be asked to determine whether elections are being conducted in a fair manner:
  • Is the organisation that is responsible for conducting the elections impartial, or does it favour one party over another?
  • Can the same be said about the leadership and staff employees of that organisation? Do they carry out their work in an impartial manner?
  • Is the organisation subject to political interference?
  • Are the decisions and actions of the organisation transparent, and are they fair? Do they treat both the government and the opposition equally?

Numerous academic studies conducted by both foreign and Malaysian academics have concluded that over the years, the independence and impartiality of Malaysia's election commission has been lost. In many cases, this is because its independence has been stripped by parliamentary action. So it is not fair to blame everything on the personnel who lead the commission.

However, various unfortunate statements by Malaysia's election officials have only reinforced the view that they favour one party over another. For example:

In 2007, then EC Chairman Abdul Rashid Abdul Rahman said that "there is only one regime in this country that is capable of running (the country)."

Abdul Rashid went on to say that he was on the same wavelength as his friend, senior Umno leader Sanusi Junid, about what the country needs. "If we don't agree, then we are in trouble, because I run the elections," he said.

kuala terengganu parliament by election spr ec announcement  051208 wan ahmad wan omarEC deputy chief Wan Ahmad (right) has taken to writing articles in Utusan Malaysia, owned by Umno, saying that the opposition is engaged in 'dirty tricks' and trying to scapegoat the EC in order to promote their political ambitions.

Wan Ahmad added, "BN has never attacked or put down the EC. That is the difference between PAS, DAP, PKR and BN."

Critics of the EC say that BN has no reason to attack or put down the EC, as the EC is doing BN's work.

In response to Wan Ahmad's comments, Bersih 2.0 issued a statement saying that the EC "continues to make comments that are less in the spirit of working together towards cleaner elections and more in the spirit of defending an incumbent party against contenders."

Bersih called on Wan Ahmad and the EC to end their war of words with political parties.

"Recent comments that have been made threaten the public image of impartiality that the EC needs to have to maintain public confidence. It is more the job of the deputy chairperson of a political party to make political criticisms than it is the deputy chairperson of the EC."

That is a sentiment with which most of the world would agree.


JOHN R MALOTT was the US Ambassador to Malaysia, 1995-1998, and continues to follow developments in that country closely.


Why EC's arguments are seriously flawed

Why EC's arguments are seriously flawed
John R Malott
Aug 24, 11
7:53am
10 friends can read this story for free
COMMENT There has been much informed discussion in Malaysia over the past two months about electoral reform, with thoughtful proposals from reformers and counter-statements by the government.

In this article, the first of two, I take a look at some of the proposals that have been made and compare Malaysia's situation to that of other countries.

Lowering voting age

From an international perspective, Malaysia's 21 year age requirement is out of step with the rest of the world.

Wikipedia lists the voting ages in almost 240 countries and territories around the world, and overwhelmingly the predominant voting age is 18. Malaysia is one of only 12 countries where a voter must be 21.

Let's look at Malaysia's Asian neighbours. You need be only 18 to vote in Australia, Bangladesh, Brunei, Burma, Cambodia, China, Hong Kong, India, Laos, Maldives, Mongolia, Nepal, New Zealand, Pakistan, Papua New Guinea, Philippines, Sri Lanka, Thailand and Vietnam.

In Indonesia and East Timor, it is 17; in South Korea, 19; and in Japan and Taiwan, 20. Together with Singapore, Malaysia is the only country in Asia to set the voting age at 21.

Let's also take a look at other nations in the Commonwealth, whose governmental structures and constitutions have all been influenced heavily by the British.

The voting age is 18 in Australia, Bahamas, Bangladesh, Bermuda, Canada, Ghana, India, Jamaica, New Zealand, Pakistan, Sri Lanka, Tanzania, Uganda, the United Kingdom and Zimbabwe. Once again, Malaysia is an outlier.

In Malaysia, when citizens turn 18, they have the legal right to get married, have consensual sex, sign contracts, and buy alcohol and tobacco. They can leave school and work when they are 16, and they can drive when they are 17.

They do not, however, have the right to vote until they are 21. Why does this age gap exist?

Malaysia's age limit clearly is out of step with the rest of the world and also is inconsistent with the legal rights it grants its citizens at an earlier age, from marriage through employment.

Extending the campaign period

machap by election nomination 030407 wan ahmadBersih 2.0 advocates extending the campaign period to 21 days, but the Elections Commission is opposed to it. EC deputy chief Wan Ahmad Wan Omar says that a shorter period is sufficient for a nation of Malaysia's size and technological sophistication.

However, a number of Malaysian advocates of electoral reform have pointed out that in years past, Malaysia's election campaigns extended beyond 21 days.

Let's take a look at Wan Ahmad's justification for a short campaign and examine the campaign periods in other Commonwealth countries, with which Malaysia shares a political heritage.

The 2010 Australian elections were announced on July 17, and the polls were held five weeks later, on Aug 21.

Using Wan Ahmad's logic, Australia needs a longer campaign period because it is a big country. So let's look at some smaller-sized places, which also are technologically sophisticated.

The 2010 elections in the United Kingdom were announced on April 12 and held on May 6. That is a campaign period of 24 days.

This year's parliamentary elections in New Zealand were announced on Feb 2, but they will not be held until Nov 26, almost 10 months later!

What about Singapore, a nation that is only 582 sq km in area, just 0.2% of Malaysia's size? Their Parliament was dissolved on April 19 of this year, and the elections were held on May 7, which was 20 days later.

Wan Ahmad argues that the length of a campaign period is correlated to a country's size and sophistication, but as the examples of the UK, New Zealand, and Singapore show, the argument doesn't hold water.

Finally, while Malaysia's land area is smaller than other India or Australia, the physical separation of the nation into its eastern and western halves has an impact on national election campaigns. The flying distance between Kuala Lumpur and Kota Kinabalu is 1,624 km.

That is just 42km short of the distance between Bombay and Calcutta, and 123km less than the distance between New Delhi and Chennai. So for political leaders who need to criss-cross the country, the length of the campaign is important.

Using indelible ink

Bersih 2.0 advocates the use of indelible ink, which has proven to be a low-tech but effective method to prevent electoral fraud. EC deputy chief Wan Ahmad has made a number of points in opposition.

First, Wan Ahmad claims that Malaysia's Constitution would need to be amended, because the government cannot deny a registered voter his or her right to vote. This is incredibly perverse logic.

pulau ketam village head election 310711 indelible ink 02The purpose of indelible ink is not to prevent someone from voting; it is to prevent someone from voting twice, fraudulently and illegally. It is a crime-prevention and not a vote-prevention measure. Furthermore, when the government imported indelible ink for the 2008 elections, no one claimed then that the Constitution needed to be amended.

Wan Ahmad's second argument is chauvinistic. He says that indelible ink is for poorer, less sophisticated countries like India and Indonesia. Sophisticated countries like Malaysia deserve a more high-tech system like biometrics.

But then, in the same breath, he says that voters in the countryside are not sophisticated, and that they could be duped by people who dip their fingers in ink before they vote. So which is it - are Malaysians sophisticated or not?

nepal election indelible ink 230408 casting voteIndelible ink has been in use in Indian elections since 1952, and there have been no accusations of fraud. The peasantry have not been duped. True, there have been problems in the Philippines because they used a lower quality ink that can be removed easily.

But Indian ink - which is what the Malaysian government imported in 2008 - stays on the skin for 72 hours and cannot be removed.

The irony is that many Malaysians believe that the proposed high-tech biometric system will lead to more fraud and more problems, not less. The equipment and database will be under the control of the government. Some blog reports say that the Malaysian companies that provide this kind of equipment have close political and family connections to government leaders.

Furthermore, as we all know, any computer system and database is only as good as the information that we put into it. High-tech systems are also prone to crash.

Can Malaysia deploy biometric equipment to thousands of polling places across the country, train personnel, and ensure both electricity and Internet connectivity, especially in the rural areas? A low-tech solution - indelible ink - seems easier, cheaper, and more reliable.

Permitting foreign observers

When Wan Ahmad was asked last July whether Malaysia would invite foreign groups to observe the country's next elections, the EC deputy chief became emotional and nationalistic: “Why do we need foreigners... commenting on our election system? They don't know our election laws. They don't understand our values.”

It is a matter of pride, he said. Malaysians would be hurt by the negative comments of foreign observers. “They are foreigners. Who are they? Why do we need Germans commenting on our election system?”

The irony is that he made these comments just as his boss, Abdul Aziz Mohd Yusof, was in Thailand on a five-day trip with four other Malaysian election commissioners to observe the Thai elections. The Malaysian group had been invited by the Thai Election Commission, along with 11 other countries.

As in Malaysia, voters in Thailand are divided on the question whether their elections are free and fair. An Asia Foundation survey in 2009 found a split - 47% of those Thai surveyed said their elections are free and fair, while 48% disagreed.

But when asked whether the presence of election observers would give them more confidence that the results of the elections were fair, 62% said yes. Only 34% said that it would not.

From that point of view, it is in the government's interest to invite both domestic and foreign groups to observe the next elections. The heavy-handed government crackdown last July 9 against the Bersih rally certainly got the world's attention and raised international concern that all might not be as it seems in Malaysia.

The government says that elections are free and fair. The world needs to be assured about the strength and integrity of Malaysia's democracy. Inviting foreign observers is not an issue of national pride; it is a question of national interest.


JOHN R MALOTT was the US Ambassador to Malaysia, 1995-1998, and continues to follow developments in that country closely.

Friday, August 26, 2011

MRT Jalan Sultan land acquisition – who is telling the truth: Chua Soi Lek, Hamid Albar or Idris Jala?

MRT Jalan Sultan land acquisition – who is telling the truth: Chua Soi Lek, Hamid Albar or Idris Jala?

--Lim Kit Siang
August 26. 2011

“Flip flop in a matter of days” has become the byword for the present Najib government, whether on its mishandling of the Bersih 2.0 peacefull rally for free and fair elections on July 9 or the parliamentary select committee on electoral reforms.

There is now the latest addition to the Najib government’s “Flip Flop List” – the controversy over the Klang Valley Mass Rapid Transit (KVMRT) land acquisition of Jalan Sultan properties.

Only three days ago, the MCA President Datuk Seri Chua Soi Lek had announced that the government had backtracked from its decision to acquire the land and 31 buildings around Jalan Sultan in Kuala Lumpur to make way for the MRT mega project.

Chua said that after discussion with Land Public Transport Commission (SPAN) chairperson Datuk Seri Syed Hamid Albar, “an understanding and agreement” had been reached whereby as a “compromise”, the government will only acquire the strata title for the property 100 feet below ground required for the MRT tunnel, while the buildings, many of which are nearly a hundred years old, and land above ground will remain in the current owners’ hands.

However, the residents may have to vacate their property during the six months or so of tunnelling works, while the government will also be required to strengthen the heritage buildings should they be affected by the works underground.

“The cost of the strengthening and the compensation to the owners will be detailed later,” Chua said.

Chua’s announcement of government backtracking on MRT’s Jalan Sultan land acquisition did not survive 24 hours as the very next day, Hamid not only rubbished Chua’s talk of government strata title for the property 100 feet below ground but reiterated compulsory acquisition of Jalan Sultan’s land and 31 buildings.

Hamid delivered a greater shocker when he declared that there was no guarantee that the acquired Jalan Sultan properties would eventually be returned to the owners although the authorities were working on a solution to allow traders to return to their Chinatown lots being acquired for the KVMRT.

The Jalan Sultan traders were delivered another shock when it is revealed today that the Pemandu chief Datuk Idris Jalan had written to the Associated Chinese Chamber of Commerce and Industry Malaysia (ACCIM) president Tan Sri William Chen to justify the government pursuing a “rail-and-property” model as it would not be able to recover the cost of the first KVMRT line between Sungai Buloh and Kajang through fares alone.

The affected Jalan Sultan traders and the Malaysian public are entitled to ask – Who is telling the truth about the MRT Jalan Sultan land acquisition: Chua Soi Lek, Hamid Albar or Idris Jala.

The Najib administration must be reminded of its grandiose promises of various transformation programmes to act with transparency and integrity, and that it bears the onus to satisfy the affected Jalan Sultan traders and owners as well as the Malaysian public the responsibility to establish that the MRT project owner Prasana Nasional Bhd is not attempting to hijack prime land in Jalan Sultan, Kuala Lumpur affecting heritage shoplots for the ulterior motive of profit as the 1990 amendment to the National Land Code had specifically provided for the MRT needs of “underground railways” development.

Some shocked at finding themselves actual voters

Some shocked at finding themselves actual voters
Kuek Ser Kuang Keng
Aug 26, 11
10:59am

Apart from various flaws in the electoral roll, the voter registration process is also found to be open to abuse, where Malaysians abroad have been registered as voters without their knowledge.

Malaysiakini received complaints from two of them who were shocked to discover their names in the electoral roll although they have never registered themselves.

The first complainant who only wanted to be known as Ooi checked his voting status with the Election Commission (EC) online verification system on Aug 2.

"Earlier this month I read on an online forum an article regarding illegal workers being registered as election voters within only a few days. They provided a link to check the voter's registration status.

"I have never registered myself but out of curiosity, I entered my MyKad number and I was shocked to see the result. It said 'permohonan yang sedang di proses' (application is being processed).

NONE"This is when I started to feel suspicious as I never ever registered myself as a voter before. The name, MyKad number and address are mine exactly," he told Malaysiakini through email.

Ooi immediately filed a complaint with the EC through email and received a reply a week later stating that his application to register as a voter was made on June 22, 2011, and it was being processed before gazetting into the master roll.

"I got the shock of my life when I got the reply after a few days," he said.

He then checked the EC online verification system again and found that his application had been approved.

"I was really shocked, it says I am now a registered voter: 'daftar pemilih yang telah disahkan' (verified electoral roll).

Dilemma facing the victims

"I am overseas now, and I left the country in February 2011 and did not return at all, and now I am still in Cambodia. How did I get myself registered on June 22 as the person had replied to me?" he asked, suspecting that someone had used his MyKad to register.

"How do I get help on this now if my MyKad is being used by others as a voter?" he said, adding that his family members have never registered for him.

Ooi also claimed that three of his Malaysian colleagues working overseas also encountered the same situation.

Malaysiakini was provided with the screen capture images of his status in the EC's portal as well as the email reply by the EC, and this reporter had verified his voting status with the EC's portal.

The second complaint was from Chin, a Malaysian working in Singapore since 1981.

"I was astonished to find my name in the active list of voters even though I have never registered and not voted for 30 years. Is this normal?" said Chin in his email to Malaysiakini.

Like Ooi, he had filed an inquiry with the EC last week but has yet to receive any reply.

On these complaints, an EC official who declined to be names explained to Malaysiakini that they may be caused by irresponsible assistant voter registration officers (AROs).

An ARO is an the EC appoints to register new voters as the commission is short of manpower.

Many of them are representatives from the political parties which are allowed to have two AROs in every state constituency. The ARO is paid RM1 by the EC for every valid voter registered.

"It might happen when some AROs, especially from political parties, registered the new voters without the knowledge of the persons by using their MyKad details.

"The EC appoints these AROs to expedite the registration process but some of them abuse the trust... The EC has made a stand to cancel their status as ARO if they are found to be involved in cases that have been raised," said the officer.

On Aug 22, the Selangor EC chief Dzulkifli Abdul Rahman issued a letter to all AROs in the state, requiring them to submit copies of applicants' MyKad along with voter registration forms.

In the letter, Dzulkifli said that "almost 50 percent" of registration submissions are rejected as the applicants are "dead, have addresses that do not match that in their identity cards, have registered before, and some are even permanent residents".

To fix this, any application form which does not come with a copy of the applicant's MyKad will be rejected outright.

According to the EC chairperson Abdul Aziz Yusof, the ruling only applies to Selangor as the problem is most severe in the state.

On this issue, electoral reform coalition Bersih 2.0 and the opposition have been urging the EC to implement automatic voter registration for all citizens above 21 years old to eliminate the various woes and weaknesses of the current system.

Thursday, August 25, 2011

MCA founder’s granddaughter lauds Guan Eng’s policies in Penang

MCA founder’s granddaughter lauds Guan Eng’s policies in Penang

August 25, 2011
The Malaysian Insider

KUALA LUMPUR, Aug 25 — Lim Guan Eng received praise from an unexpected source today when the granddaughter of the MCA’s first president and daughter of the country’s longest-serving finance minister said the Penang chief minister should be given his due for the state’s prudent management of public funds.

Tan Siok Choo, the daughter of Tun Tan Siew Sin and granddaughter of Tun Sir Tan Cheng Lock — both of whom were former MCA presidents — told BFM radio this morning that it was good that Lim had shown what could be done by eliminating waste and implementing open tenders.

“For my father... he was always very particular that government funds should be looked after like your own funds. I think it is in a way, currently, very good that Lim Guan Eng (picture), Chief Minister of Penang, has shown what can be done if you eliminate waste and if you have an open tender.

“The fact that he has been able to run Penang without much contribution from the federal government and yet turn in, yet attract one of the highest rates of investment, I think speaks for itself.

“And this is baring the fact that when my father was in politics, Kit Siang never had a good word to say about my father. So there is history between our two fathers but I think one must give Guan Eng his due,” she told the radio station’s Morning Grille programme.

Siok Choo’s father Siew Sin was finance minister from 1959 until 1974. Guan Eng’s father Kit Siang became an MP for the first time in 1969 and eventually became parliamentary opposition leader.

Her remarks today come as the DAP is increasingly being seen as the party of choice for the country’s Chinese community while the MCA, the party founded by Siok Choo’s grandfather Cheng Lock, appears to be floundering.

Recently, international news magazine The Economist also praised Guan Eng’s open tender policies and credited his administration with helping Penang regain its lustre as a “global city” by lifting the state’s economy to beyond that of a sweat shop industry.

The international weekly dubbed Penang “the first custom-made city of globalisation” and credited Guan Eng for boosting the port city’s revival by axing a racial special treatment economic policy in the state to create a more level-playing field that appeals to foreign investors.

Speaking about the MCA this morning, Siok Choo said the party needed to understand what its constituents wanted if it was to stay relevant.

“I think the good thing about the current situation is that the ethnic lines are getting blurred. You can see this in how Malaysians react to issues... look at issues like Bersih, the call for better and cleaner electoral process, it is being championed across the board, sought by Malays and Chinese. So therefore in terms of civil liberties and soft issues like law and order, no longer seen as Malays vs Chinese... seen as an issue that all Malaysians want.

“I think the party has to realise that if that is what your constituents want, that they don’t see as us and them situation anymore in terms of Malays and Chinese, if the party wants to be relevant and if it wants to move forward, that is the direction it has to go.”

Wednesday, August 24, 2011

Bumi quota may bloat MRT project cost, say experts

Bumi quota may bloat MRT project cost, say experts

August 24, 2011
The Malaysian Insider

The proposed site location of the MRT station near One Utama, Mall Petaling Jaya February 4 2011. — Picture by Choo Choy May

KUALA LUMPUR, Aug 24 — A 30 per cent Bumiputera quota for the Klang Valley Mass Rapid Transit (MRT) construction packages may swell the cost of the multi-billion ringgit rail project, say experts.

RAM Holdings chief economist Dr Yeah Kim Leng said some small Bumiputera contractors may not be able to leverage on economy of scale in terms of equipment and resources.

“The smaller ones don’t have that scale economy. Costs will be higher,” Yeah told The Malaysian Insider.

Prime Minister Datuk Seri Najib Razak (left) receiving a souvenir during the MRT launch of the project July 8 2011. — Picture by Jack Ooi
“The issue is (with) the efficiency of this pool of contractors. Do they have the capability and cost efficiency?” he asked.

Syarikat Prasarana Negara Bhd (Prasarana) said yesterday that the quota for Bumiputera contractors was part of the government’s “national agenda.”

Abdul Malik Azman, Prasarana’s head of MRT Procurement Management Department, said there were 18 work packages under the KVMRT, comprising eight packages for elevated civil works, eight packages for stations and two packages for depots.

Contractors leave the MRT briefing at Dewan Sivik MBPJ May 24 2011. — Picture by Choo Choy May
He said six out of the 16 packages for elevated civil works and stations, as well as the Kajang depot work package, were reserved for Bumiputeras.

Twenty-eight firms including heavyweights such as Sunway Bhd, IJM Bhd and MRCB have been shortlisted for the construction of the first phase of the MRT project.

Political analyst James Chin pointed out that the Bumiputera quota would increase costs due to a smaller pool of competitors.

“The Bumiputera portion will be confined to Bumiputeras only. If you know that the competition is for Bumiputeras only, they’ll increase prices because they (the government) cannot buy from anyone else,” Chin told The Malaysian Insider.

Prasarana’s press statement yesterday listed 16 Bumiputera contractors shortlisted for the various work packages, which were Naim Engineering Sdn Bhd, Trans Resources Corporation Sdn Bhd, TSR Bina Sdn Bhd, Ahmad Zaki Sdn Bhd, HRA Teguh Sdn Bhd, MTD Construction Sdn Bhd, Syarikat Muhibah Perniagaan & Pembinaan Sdn Bhd, Zecon Sdn Bhd, Cergas Murni Sdn Bhd, Tidal Marine Engineering Sdn Bhd, SN Akmida Holdings Sdn Bhd, Kembang Serantau Sdn Bhd, Apex Communication Sdn Bhd, Pembinaan Bukit Timah Sdn Bhd, Perkasa Sutera Sdn Bhd and Dekon Sdn Bhd.

In May, Prasarana had caved in to pressure from Malay rights groups when it revised pre-qualification criteria for several construction packages.

The project owner had said then that contractors who wanted to tender for elevated civil works, stations and depots work construction packages would be allowed to form joint ventures (JV) or consortiums among local companies.

The value for contracts under the Bumiputera category is about RM250 million per package, based on the last briefing to contractors by Prasarana in May.

Some reports have pegged the estimated cost of the country’s most expensive infrastructure project at RM50 billion, although the authorities have yet to confirm it.

MRT Bumi quota shows NEM like NEP, say Pakatan leaders

MRT Bumi quota shows NEM like NEP, say Pakatan leaders

August 24, 2011
The Malaysian Insider

Prime Minister Datuk Seri Najib Razak (centre) looking at the map of the MRT during the launch of the project July 8 2011. — Picture by Jack Ooi

KUALA LUMPUR, Aug 24 — The 30 per cent Bumiputera quota for the Klang Valley Mass Rapid Transit (MRT) construction packages shows that the New Economic Model (NEM) is no different than the New Economic Policy (NEP), Pakatan Rakyat (PR) lawmakers charge.

Syarikat Prasarana Negara Bhd (Prasarana) said yesterday that the nation’s largest construction project ever will have fixed reservations for Bumiputera.

The MRT is due to begin operations in January 2017.

“This proves beyond doubt that the NEM is not in the least bit different from the NEP,” DAP publicity chief Tony Pua told The Malaysian Insider last night.

Contractors leave the MRT briefing at Dewan Sivik MBPJ May 24 2011. — Picture by Choo Choy May
“All the associated problems arising and related to the NEP over the past few decades — such as declining competitiveness, brain drain — will continue to be aggrieved, if not made worse, by such policies,” added the Petaling Jaya Utara MP.

Abdul Malik Azman, Prasarana’s head of the MRT Procurement Management Department, told The Malaysian Insider that the quota was part of the government’s “national agenda”.

The proposed site location of the MRT station near Pusat Bandar Damansara Kuala Lumpur February 4 2011. — Picture by Choo Choy May
The Malaysian Malay Chamber of Commerce and Industry and also Malay rights groups had previously demanded Prasarana’s stringent contractors requirements were relaxed so that more Bumiputera companies qualified.

Twenty-eight firms including heavyweights such as Sunway Bhd, IJM Bhd and MRCB have been shortlisted for the construction of the first phase of the country’s most expensive infrastructure project that is being managed by another Bumiputra joint-venture, MMC-Gamuda.

Abdul Malik has said there were 18 work packages, comprising eight packages for elevated civil works, eight packages for stations and two packages for depots.

He said six out of the 16 packages for elevated civil works and stations, as well as the Kajang depot work package, were reserved for Bumiputeras.

PKR communications chief Nik Nazmi Nik Ahmad said the Bumiputera quota would not benefit Malay contractors at large.

“It’ll be the same Umnoputera elite that will benefit,” he told The Malaysian Insider.

“We’re not saying there are no problems for Malay entrepreneurs...But that doesn’t mean the solution is to have the same old policy,” added the Seri Setia assemblyman.

Deputy Prime Minister Tan Sri Muhyiddin Yassin recently assured the Malays that the federal government still prioritised Bumiputera interests in what is seen as a pitch for the government ahead of general elections expected as early as this year. The ruling Barisan Nasional’s (BN) mandate expires in 2013.

Critics have accused Prime Minister Datuk Seri Najib Razak of diluting his NEM by creating agencies like the Bumiputera Agenda Driving Unit (Teraju), and failing to focus on needs and merit-based affirmative action policies.

But government officials have said the move was necessary as Bumiputera equity in the economy remained low, despite the billions doled out since the NEP began in 1971.

PAS’s Shah Alam MP Khalid Samad said Bumiputera quotas were “fundamentally not a problem”, but that the affirmative action policy has been abused over the years for Umno’s gain.

“If it’s done responsibly, some of the Bumi contractors — the real people who are really doing the work — are in a position to do it as efficiently and as cost-effective as everyone else. But, it must be awarded through a competitive-based and transparent exercise which will ensure the fittest and best get the job,” he added.

PKR vice-president Nurul Izzah Anwar said a massive project like the MRT — which required “quality and high standard work” — should be based on merit.

Tuesday, August 23, 2011

‘Racism and fanaticism’ exploited in Malaysia for politics, Asri tells WSJ

‘Racism and fanaticism’ exploited in Malaysia for politics, Asri tells WSJ

August 23, 2011
The Malaysian Insider
Asri: Islam must be described as a religion of love for others, with a respect for rights, respect for knowledge, rejecting superstition and basing all practices on real arguments.
KUALA LUMPUR, Aug 23 — Muslim scholar Dr Mohd Asri Zainul Abidin took a swipe at Malaysia’s religious authorities in a recent Wall Street Journal (WSJ) interview, claiming that “racism and extreme religious fanaticism” are often used to protect certain political interests.

The former Perlis Mufti, who was recently placed on a terror watch list for Wahhabism, told the influential newspaper that the authorities here needed to be more open-minded, adding that the term “Wahhabi” was recklessly used in Malaysia as a derogatory term to slander others.

“Religious authorities in Malaysia should be more open-minded. Their attitude is to force others to think in only one way, and that is not the attitude of a civilised people,” he said, according to an excerpt of the interview found on WSJ’s website yesterday.

He lamented that Malaysia’s more progressive Muslims were “marginalised” by the conservatives who controlled the religious institutions in government, and accused the administration of fearing criticism from the former group.

While Asri insisted that he was not a follower of Wahhabism, he noted that the teaching had its own distinctive contribution for Muslim societies across the globe.

“If ‘Wahhabi’ means inviting people to be fanatical, rigid, stern, uncompromising, and the like, I oppose it. (But) There are also a lot of sound and relevant opinions among them. However, even if we disagree with their views, that doesn’t mean we can accuse them of terrorism,” he said.

Asri was first linked to Wahhabism and the terrorists group Jemaah Islamiah (JI) early last year, along with PAS President Datuk Seri Abdul Hadi Awang, former Perlis mentri besar Datuk Seri Shahidan Kassim dan Perlis Mufti Juanda Jaya.

Last month, the National Security Council (NSC) ordered religious authorities to monitor Wahhabism in the country, placing influential former Asri, Juanda and over 40 young Umno ulamas. Putrajaya, however, later agreed that Wahhabism is not a threat to national security.

“In Malaysia, the word ‘Wahhabi’ is quite a mysterious term. Many use the term or slander others by it, without a clue about its meaning.

“In some places, a person is accused of being a Wahhabi for disagreeing with superstitious rituals and beliefs.... When people begin to criticise the practices, they simply say, ‘you are Wahhabi’,” Asri told WSJ.

He defended his position on Islam, pointing out that the religion blesses everyone regardless of race or religion and that any other interpretation that leads to “injustice, oppression, hostility to other people, ignorance, caste systems in society, racism and fanaticism that doesn’t respect the rights of others” should be rejected.

“Islam must be described as a religion of love for others, with a respect for rights, respect for knowledge, rejecting superstition and basing all practices on real arguments,” he said, when pointed out that his interpretation of Islam has often been linked to Wahhabism.

Asri said Malaysia’s Muslim society needs “tajdid”, which he defined as the restoration of Islam’s original look and the innovation of certain elements to fulfil “contemporary needs”.

“A lot of the contemporary issues we are encountering these days were not known in the past. To ensure a continuous survival of society, various new opinions are required.

“The opinions of preceding theologians may not be wrong, but may have expired due to changes in time and circumstance,” he said.

PSC has been rendered useless and meaningless by the breaking of tacit promise to hold election after reforms

Speech at DAP Bercham Dinner held on Sunday, August 21.2011

PSC has been rendered useless and meaningless by the breaking of tacit promise to hold election after reforms

It has been reported that a consortium of Chinese tycoons led by Genting giant Tan Sri Lim Kok Tay has planned to takeover Tan Sri Ananda Krishnan’s Pan Malaysian Pools Sdn Bhd.
The RM 2.1 billion takeover bid will lead to an expected annual profit of RM 200 million channeled to “Jana Pendidikan” –a trust fund for vernacular schools.

This huge amount of fund will certainly be of great financial help to the Chinese and Indian schools which have not been given fair treatment by the BN government.

But the immediate question that many people are now asking is whether the creation of such fund will cause the government to cut back its allocations to the vernacular schools.

Let me remind the government that it t is the government’s responsibility to accord fair treatment to all schools and hence it must not view the creation of the trust fund as a reason to abdicate its responsibility.

In fact, if the government has practiced fair educational policy, then the need for such a trust fund by the private sector will not be necessary at all.

According to official figures, under the 9th Malaysia Plan, the government’s monetary allocations to our children were as follows:

1) National schools - RM 33.30 per month per student
2) Tamil schools - RM 10.55 per month per student
3) Chinese schools - RM 4.50 per month per student
When the government continues to practice such unfair policy, 1 Malaysia concept will continue to ring hollow.

The continued practice of unfair polices has proven that the BN government in incapable of reform and change, even after having suffered its worst ever electoral debacle at the last general election.

Why can’t the BN government change? The simple reason is that it lacks the political will.

A very good and new example is the prime minister’s announcement that the next general election can be held anytime before the proposed Parliamentary Select Committee (PSC) on Electoral Reforms completes its work.

When Dato Sri Najib made the announcement to set up PSC , Malaysians have viewed it as his response to Bersih 2.0 demands and pressures, and hence as government’s tacit agreement to implement electoral reforms before the next general election.

So when Najib said that PSC is not related to the next general election and that the next general election can be held before PSC completes its work, he has broken the tacit promise to the people.

Whatever his reason for making such a flip flop, whether it is bowing to pressure from Umno hawks or realizing that BN cannot win in a free and fair election against Pakatan Rakyat, his about turn is totally unacceptable.

Najib had promised that Bersih 2.0 Rally could be held in a stadium but Bersih was not granted permission to hold the planned Rally at Merdeka Stadium though that was the tacit approval Malaysians understood.

Now he is doing a flip flop on the electoral reform issue.

My vote will be for DAP to stay out of the PSC as it has been rendered useless and meaningless by Najib’s breaking of his tacit promise to hold the next general election after electoral reforms .

Monday, August 22, 2011

Anwar: “I categorically deny the charge against me.”

Anwar: “I categorically deny the charge against me.”


DALAM MAHKAMAH TINGGI DI KUALA LUMPUR
DALAM WILAYAH PERSEKUTUAN
PERBICARAAN JENAYAH NO: 45-9-2009

PENDAKWA RAYA

LAWAN

DATO’ SERI ANWAR BIN IBRAHIM


STATEMENT FROM THE DOCK

My name is Anwar bin Ibrahim. I am the leader of the Opposition in Parliament. In the 1990s, I was the Finance Minister and Deputy Prime Minister until September 1998 when then Prime Minister Dato’ Seri Dr Mahathir bin Mohamad sacked me after I had refused to resign. He had told me to resign or face dire consequences including criminal prosecution for alleged sexual and corruption offences. I refused and all hell broke loose. My unceremonious and grossly unjust dismissal simultaneously orchestrated with a trial by media under Mahathir’s complete control triggered mass and widespread demonstrations throughout the country and launched the movement for change and reform known in our history as the Reformasi era.

After a series of show trials during which every rule in the book on evidence and criminal procedure was violated with impunity at the hands of the prosecution and the courts, I was convicted and sentenced to a total of 15 years.

THE CHARGE AGAINST ME

First and foremost, I categorically deny the charge against me. I want to state in no uncertain terms that I have never had any sexual relations with the complainant Mohamed Saiful. His allegation is a blatant and vicious lie and will be proved to be so.

This is a vile and despicable attempt at character assassination. In this regard, let me reiterate that they can do all they want to assassinate my character and sully my reputation and threaten me with another 20 years of imprisonment but mark my words, they won’t be able to cow me into submission. On the contrary, it only serves to fortify my conviction that the truth will eventually prevail. Come what come may, I shall never surrender. With apologies to Jean Racine in Phaedra:

“You know how well your tyranny favours my temperament and strengthens me to guard the honour of my reputation.”

Yes indeed, I will guard it with my life if I have to. And if I may bring the message closer to home, let me quote the words of Nelson Mandela in his speech made from the dock in the famous Rivonia show trial of 1963 under the Apartheid regime:

“I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.”

Back in 1998, blindfolded and handcuffed, I was beaten senseless by the Inspector General of Police and left to die in the lock up at the Federal Police headquarters. However, it was by the grace of God that a few of the rank and file of the police took pity on me and nursed me to recover from the near lethal blows. There was then a cover up by Gani Patail (now the Attorney-General) and Musa Hassan (the IGP at the time that I was charged in this new episode) with the full knowledge and connivance of Dato’ Yusuf, the current chief prosecutor in this trial. All these personalities were linked in one way or the other with the 1998 show trial and more insidiously with the suppression of evidence in respect of the black eye scandal and attempts to pervert the course of justice. These are the same personalities who are now actively involved in the current prosecution against me. Res ipsa loquitur, as they say, but in this regard I’m not talking about negligence but rather proof of criminality in this heinous plot betraying indeed “the deep damnation” of the conspiracy.

The circumstances are compelling that I elect to make a statement from the dock. And in this statement I shall attempt my utmost to place the truth ahead of the web of lies and deceit that has been spun thus far. To quote Shakespeare:

“And let us once again assail your ears,
That are so fortified against our story…”

Which has set me from the outset of the trial to have been deprived of a level playing field and subjected to inequality of arms vis-a-vis the prosecution.

The Prosecution’s Failure to Discharge its Duties Professionally

1) Even though these matters are done as a matter of routine in criminal proceedings, the Prosecution has consistently refused to disclose material critical to my defence, including: (a) prosecution witness list; (b) primary hospital examination notes written by the medical examiners of the complainant at HBKL; (c) witness statements (including that of complainant); and (d) forensic samples and exhibits for independent examination and verification. All this has caused considerable prejudice to my defence and occasioned grave injustice. The only conclusion that one can reasonably draw from the prosecution’s persistence in this act of perversity is that unseen hands are at work and it is certainly not the hand of God.

2) Your failure to respond during the course of the trial to several attempts by persons hostile to me to discredit me by commenting on aspects of the trial. These included whether I should provide samples of his DNA; blaming the defence for the delay of the proceedings; and reporting on matters that were the subject of a suppression order. These public comments were made either in defiance of your orders that they not be made. They were made by UMNO officials and politicians, including Dato’ Seri Najib orchestrated through the controlled electronic and print media, such as Utusan Malaysia, Berita Harian, the New Straits Times and TV3. The constant comments by the Prime Minister and UMNO officials in the media and adverse comments on the progress of the trial were clearly calculated to influence you and illustrates the political motive behind the charge.

3) The latest act of blatant disregard occurred just last Tuesday and Wednesday over TV3 which broadcasted a pre-recorded interview with the complainant saying things which are clearly in contempt of the proceedings in respect of the trial. In particular, the audacious portrayal of himself as the victim who is a pious and God fearing Muslim who has sworn on the Quran that he is a witness of truth.

4) But the truth is that even as the trial was in progress, the complainant who was engaged to someone else was shamelessly having an affair with a member of the prosecution team. Quite apart from the consequences of such an affair on the conduct of the prosecution, the complainant’s facade of moral rectitude is shattered by this scandalous affair with the lady prosecutor who herself was also engaged with another man.

5) In spite of all this, the complainant, assisted by the full force of the UMNO propaganda machine, via their media, has gone to town to vilify me. The point is that all comments were calculated to discredit me, adversely influence the course of the proceedings and to intimidate the witnesses at the trial. In spite of all these blatant transgressions, you have persistently refused to respond to any of these acts of contemptuous behaviour.

The solemn duty of a judge is not to sit mute when the law provides for a court of its own motion to issue show-cause notices against those who interfere in the administration of justice. I am reminded of the maxim Judex Habere Debet Duos Sales, Salem Sapicutiae, Ne Sit Insipidus, Et Salem Conscientiea, Ne Sit Diabolous, the English translation of which is,

‘A judge should have two salts, the salt of wisdom, lest he be insipid; and the salt of conscience, lest he be devilish’.

The office of a judge is one of the most honourable in the country; he is the voice of the legislator and the organ for dispensing justice; he holds the balance between the executive and the subject.

Even more significantly, in the discharge of his duties, the judge should be mindful of Allah’s command:

“…and let not hatred of others
Swerve you into error
And depart from justice.
Be just, that is nearer to piety
Fear Allah, For Allah is
well acquainted with all that you do”
Surah al-maidah: 8

In the middle of the Second World War in 1942, Lord Atkin, in Liversidge v Anderson, had occasion to say in the House of Lords,

‘It has long been one of the pillars of freedom…that the judges are no respecters of persons and stand between the subject and any attempted encroachment on his liberty by the executive, alert to see that any coercive action is justified by law’

In my case, Y.A., presiding in an adversarial trial, had the residual power and the jurisdiction to have invoked Y.A.’s powers relating to contempt of court. Y.A. chose not to do so for reasons best known to Y.A.. What has happened is not in the best traditions of the Judiciary. In the ongoing Banting murder trial, the learned trial judge in that case, Y.A. Datuk Akhtar Tahir, took it upon himself to summon a local television producer over a clip it aired during its prime news slot relating to the defence in the murder trial of Datuk Sosilawati Lawiya and three others. A newspaper clipping of that report is annexed herewith. Y.A. Datuk Akhtar Tahir has courageously demonstrated judicial activism in the name of human rights and the essential requirement of a fair trial.

To compound the position to incredulity, the open scandal relating to DPP Farah Azlina Latiff having an affair with PW1 did not concern Y.A. This invidious relationship should have alerted Y.A. in that I was been denied a fair trial for the simple reason that Farah Azlina Latiff would have had access to the investigation papers being a member of the prosecution’s team and, therefore, PW1 would, through this relationship, would have had knowledge of the statements given by witnesses, including my alibi witnesses in the course of the investigation.

Y.A. did not even chastise Farah Azlina Latiff for the illicit affair with SP1. All that was done was that Farah Azlina Latiff was taken off the prosecution team at the behest of the prosecution which was an open confirmation of the existence of that illicit affair. Farah Azlina Latiff did not deny the allegations against her. Neither was PW1 recalled by the prosecution to deny the existence of this unsavoury affair.

The Attorney-General had publicly stated the reasons would be given later to account for the sordid affair. That has yet to eventuate.

Yet, in the face of this, Y.A., at the close of the prosecution case, made a finding that PW1 was a truthful witness from this passage in the judgment as follows,

‘Nothing came out from the lengthy cross-examination of PW1 or from the evidence of other prosecution’s witnesses that could suggest what PW1 had told in his evidence was something which was not probable. I find PW1’s evidence remains intact. He had truthfully and without embellishment or exaggeration in his evidence narrated in minute detail how he was sodomised by the accused on the date and at the place stated in the charge. I find him to be truthful witness and his evidence is reliable and if accepted would establish all the facts required to prove the charge against the accused.’

My lawyers had clearly made the submission that Y.A. had made a prejudgment when Y.A. ought to have only made findings as to who was telling the truth at the conclusion of the defence, in which event, I would have given evidence under oath. My lawyers did not, at any time, advert to the passage above in isolation. They zeroed in on the obvious, namely, whether a witness was truthful or not had to be decided at the close of the defence case. The provisions of section 182A(1) of the Criminal Procedure Code provided the judge with that guidance but to no avail. That section bears repeating. It states:

‘At the conclusion of the trial, the court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt.’

Pursuant to what I have stated above, I have been denied the benefit of putting up my defence under oath. That amounts to deprivation of a fair trial and the existence of a level playing field.

The Court of Appeal going out of line

My appeal to the Court of Appeal over the recusal of Y.A. on account of prejudgment, following which would have resulted in biasness was heard on 6th July, 2011. A copy of the order is annexed herewith. No written judgment was handed down by the Court of Appeal on 6th July. The appeal was dismissed summarily on the preliminary objection taken by the prosecution that the order appealed against was not a final order. Those were the reasons given in open court. Nothing more, nothing less. The Court of Appeal took no more than five minutes to dispose of the appeal.

Unbeknownst to me or my lawyers, there was at the same time a 40-page judgment under the hand of Y.A. Datuk Haji Abdul Malik Bin Haji Ishak also dated 6th July, 2011. A copy of that judgment is annexed herewith.

Why did the Court of Appeal not read out the 91 paragraphed grounds of judgment dated 6th July on 6th July itself? Obviously, this judgment was at hand on 6th July but had surreptitiously been concealed from my knowledge and the knowledge of the public. The letter dated 11th August, 2011 supplying a copy of this judgment to my lawyers is annexed herewith. As is usual, Y.A. must have had the benefit of reading this judgment which will further exacerbate your bias against me. The judgment is an open and flagrant attack on me to which I will advert in due course. Suffice to say at this juncture that here is a judgment of the Court of Appeal written after 6th July, 2011 which contains harsh criticism against me without my being given the opportunity to reply.

But that begs the question: the appeal had been dismissed in limine on the ground that the order appealed against was not a final order. That should have been the end of the matter because it followed that the court had no jurisdiction to entertain the appeal. [Y.A. Datuk Haji Abdul Malik Bin Haji Ishak sat mute during the course of submissions on the preliminary objection]. The matter did not go beyond into the merits. That is what the Court of Appeal announced on 6th July without going an inch further. The preliminary objection is adverted to, not as the main part of the judgment. The major part of the judgment goes beyond. It is a frolic of his own used for the purpose of hitting out at me.

If that was so, why did Datuk Haji Abdul Malik Bin Haji Ishak embark upon a relentless attack on me in the rest of the judgment? In fact, he had no jurisdiction to do so. This is a blatant abuse of judicial power, perhaps in a surreptitious attempt to curry favours of the political masters? Otherwise, how else can one explain as to why he embarked upon such a scurrilous attack on me by stating in the following paragraphs as numbered:

‘[5] This case will fall in history. It will be chronicled as the only known case in our country or for that matter within the Commonwealth enclave where the appellant as an accused person persistently and consistently filed one application after another in an attempt to recuse the learned trial judge from hearing and continuing to hear the sodomy trial which is ongoing.

[6] It seems that the appellant here is trying his level best to scuttle his sodomy trial for reasons best known to him, much to the chagrin of the prosecution and the exasperation of the members of the public at large.

[15] It was certainly an uncalled for criticism [against the learned judge] bent to deceive and confuse the uninitiated. It is easy to criticise but it is always difficult to justify it.

[18] It is also difficult for us to accept that the Notice of Motion was filed out of a genuine belief that the learned trial judge had been biased against the appellant.

[49] The charge graphically described what the appellant did to Mohd Saiful Bukhari Bin Azlan [PW1.] [It is elementary that it is the evidence, not the charge, which proves an offence].

[50] The trial was unduly prolonged. It received wide media coverage.

[56] After such a fine display of judicial impropriety, Y.A. Datuk Haji Abdul Malik Bin Haji Ishak now has audacity to patronize us about a sound judicial system by stating, in what sounds like a broken symbol, as follows:

‘The perquisites of a sound judicial system are independence and impartiality. For an effective and a strong judicial system, the impartiality of its judges are of paramount importance. But it cannot be denied that the public’s confidence in the judicial system is shaped and moulded more by appearances.

Y.A. Datuk Haji Abdul Malik Bin Haji Ishak rather ungraciously, and without jurisdiction, took a swipe at the judgment of his brother judges of the Court of Appeal including Richard Malanjum, now Chief Judge (Sabah and Sarawak), with the obvious purpose of humiliating them when stating:

‘[72] Rowstead did not consider the “real danger of bias” test in determining whether the learned JC should have recused himself notwithstanding the Federal Court had earlier on applied the said test in:

(a) Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan [1999] 3 MLJ 1, FC; and

(b) Mohamed Ezam bin Mohd Nor & Ors v Ketua Polis Negara [2002] 1 MLJ 321, FC

[73] Consequently, Rowstead’s suggestion that the request for recusal to be heard
by another judge is quite radical. We categorically say that the recusal request, like the present matter, was rightly heard at the first instance by the learned trial judge and followed by this court.

[74] Rowstead did not consider nor ventilate on section 3 of the CJA read with section 50(1)(a) of the CJA and the Explanatory Statement thereto.

[75] The recusal application housed in the Notice of Motion concerned a long protracted trial that saw the legal manoeuvrings activated by the appellant at every nook and corner in an attempt to scuttle the criminal trial of the appellant for an offence of sodomising PW1. It is the mother of all trials in Malaysia.’

[I had every right to exhaust all legal remedies open to me. No attempt has been made by anyone, or any quarter, to prevent me from doing so by seeking an order to declare me a vexatious litigant].

As alluded to earlier in this statement, Y.A. would have had the advantage of reading this judgment after it was distributed by letter dated 11th August, 2011. This, in effect, amounts to placing, by Y.A. Datuk Haji Abdul Malik Bin Haji Ishak, alleged bad character evidence on my behalf.

In view of this, how can I get a fair trial or even the semblance of one before the trial judge now who has been further put in a position to compound biasness against me?

How can I possibly give evidence under oath when the DPP has, in his possession, the same judgment which could be used against me in cross-examination? Y.A. cannot be disabused of what has been fed to Y.A. by Y.A. Datuk Haji Abdul Malik Bin Haji Ishak when delivering a judgment dated 6th July, 2011 which obviously, having regard to the length thereof, must have been prepared well before 6th July, 2011.

This is scandalous.

Then again, why wasn’t the judgment which, even if written after midnight on 5th July, 2011 read out in open court so that I could counter and demolish all the allegations made against me by Y.A. Datuk Haji Abdul Malik Bin Haji Ishak?

It is elementary no one should be condemned, unheard. This is axiomatic. As far back as 12th August, 1999 the Federal Court, the highest court in the land, in Insas Bhd and Anor v Ayer Molek Rubber Company Bhd and others had occasion, after adverting to the authorities on the position to rule,

‘The offensive remarks made by the Court of Appeal against the High Court, the applicants and their counsel ought to be expunged from the judgment of the Court of Appeal, as it had a tendency to bring the whole administration of law and order into disrepute. Judicial pronouncements should be judicial in nature and should not depart from sobriety, moderation, and reserve. It also should not display emotion and intemperance, as displayed in the judgment of the Court of Appeal.’

Adverting to an Indian Supreme Court case of State of Uttar Pradesh v Mohd Naim, the Federal Court had occasion to adopt what was said there as follows;

‘If there is one principle of cardinal importance in the administration of justice, it is this: the proper freedom and independence of judges and magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by anybody, even by this court. At the same time it is equally necessary that in expressing their opinions, judges and magistrates must be guided by considerations of justice, fair play and restraint. It is not infrequent that sweeping generalizations defeat the very purpose for which they are made. It has been judicially recognized that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider: (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on conduct. It has also been recognized that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve.’


In Insas, the Federal Court adopted what was said in AM Mathur v Pramod Kumar Gupta & Ors when dismissing an apparently unsustainable review petition which had certain derogatory remarks against Mr AM Mathur, a senior advocate and also the ex-Advocate General of the State. The Court had occasion to hold,

‘Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be a constant theme of our judges. This quality in decision-making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might be better called judicial respect, that is, respect by the judiciary. Respect to those who come before the court as well as to other co-ordinate branches of the State, the executive and the legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process. The Judge’s Bench is a seat of power. Not only do judges have power to make binding decisions, their decisions legitimate the use of power by other officials. The judges have the absolute and unchallengeable control of the court domain. But they cannot misuse their authority by intemperate comments, undignified banter of scathing criticism of counsel, parties or witnesses. We concede that the court had the inherent power to act freely upon its own conviction on any matter coming before it for adjudication, but it is a general principle of the highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct.’

Chief Justice of India, Bhagwati, in State of Madya Pradesh & Ors v Nandlal & Ors, in expressing his strong disapproval of the strictures made by the judge, stated:

‘We may observe in conclusion that judges should not use strong and carping language while criticizing the conduct of parties or their witnesses. They must act with sobriety, moderation and restraint. They must have the humility to recognize that they are not infallible and any harsh and disparaging strictures passed by them against any party may be mistaken and unjustified and if so, they may do considerable harm and mischief and result in injustice. Here, in the present case, the observations made and strictures passed by BM Lal J were totally unjustified and unwarranted and they ought not to have been made.’

How could I under these circumstances give evidence under oath?

Y.A., when making the order for the witnesses offered to the defence for interview in court, gave a lifeline to the witnesses in stating in open court that they could refuse to be interviewed. Y.A. did not in doing so evenly handle the scales of justice. Y.A. created and perpetuated an imbalance unbecoming anyone holding the mantle of justice. In fact, the Prime Minister, Dato’ Seri Najib Tun Razak, and his wife, Datin Seri Rosmah binti Mansor, former Inspector General of Police, Tan Sri Musa Hassan, and SAC Dato’ Rodhwan bin Ismail who featured prominently in the evidence of PW1 came to the interview room echoing similar protests namely, “We are not prepared to be interviewed” with the Prime Minister saying Y.A. suggested this could be done. These were material witnesses compelling the defence now to resort to causing subpoenas to be issued for their presence.

Y.A. has created a position under which I cannot give evidence under oath. I say, with all the force at my command, that I would have been prepared and willing to give evidence under oath but for the handicaps foisted on me, in the manner Y.A. has conducted the trial and in the manner in which the Court of Appeal judgment dated 6th July, 2011 would have come to the notice of Y.A. with regard to what I have stated herein before.

My trial is an adversarial one and Y.A. ought not to have descended into the arena by suggesting witnesses offered to the defence could deny to be interviewed. It did not come within the province of Y.A. to do so.

My alibi witnesses made known to the prosecution were in fact included in the prosecution list of witnesses which was not supplied to my lawyers. They were defence alibi witnesses. I am informed this is the first time this has been done.

In fact, the owner of the unit 11-5-2, Haji Hasanuddin bin Abd Hamid, had been harassed by the police for a total of thirty hours in the recording of his statements which were all video recorded. This was obvious when he was interviewed by the defence lawyers in my presence. The police investigation has scuttled my defence.

To make a mockery of the situation, the prosecution offered at the close of their case an alibi witness named, Fitria binti Dipan, who by their own admission cannot be traced.

THE COMPLAINANT’S ALLEGATIONS ARE PURE FABRICATION

As I have said at the outset, I categorically deny the allegations made against me by the complainant.

The complainant stated in evidence on 26th June, 2008 he arrived at Kondominium Desa Damansara at 2.45 p.m. to discuss work matters and hand-over documents given to him by one Ibrahim Yaakob [my Chief of Staff] to myself. He says he stopped his van at the security post and mentioned the code name ‘Mokhtar’ to the guards at the condominium before being allowed in. He parked his vehicle and took the lift to Unit 11-5-1 where I was allegedly seated at a dining table in the living room. He says he sat down at the same table and started the discussion. He told the court of the crude manner in which I had allegedly asked for sex.

The following appears in his evidence thereafter (as attached)

When questioned, he answered that he was angry and scared and that he was not prepared to do it but purportedly because I had appeared angry, he eventually obliged. It has to be observed at this stage the complainant could have, on his own admission in examination-in-chief, left the room as there is no evidence of any attempt by me to latch the door from inside.

He had further alleged that he was ordered into the bedroom and that he did enter out of fear. Even at this stage, the complainant had the opportunity to leave the living room. He did not do so. The rest of the evidence in this regard clearly showed that the complainant had every opportunity on every occasion to flee but he did not do so. His reason was that he was petrified by fear. But such a reason flies against the facts. Here is a man in his early twenties, a six-footer, physically fit and robust and with powerful connections in the top police brass as well as the political elite with access to the very inner sanctum of power. Additionally, he has also been a key UMNO student operative, having undergone the rigorous training conducted by the Biro Tats Negara of the Prime Minister’s Department. And here I was a 60-year-old man with a history of back injury who had undergone a major back surgery holding no position of power. If indeed I could have exercised any kind of undue influence or mental pressure on him, this could have been easily neutralized by a quick phone call to his connections. As regards the fear of physical harm, it would take a great stretch of the imagination to suggest that I could pose any physical harm to him.

Under cross-examination, the following significant evidence was elicited from the complainant. He admitted that he had brought along lubricant and had himself voluntarily and without hesitation applied it. He claimed that carnal intercourse took place and that it was painful and coarse. However, this was clearly not borne out in the medical evidence in the prosecution case suggesting fissures or tears. After the alleged act, he testified that he had a drink and engaged in a friendly conversation with me. Startlingly, no attempt was made by the complainant to seek immediate medical attention. Instead, he attended a PKR function the following day. In the evening, he joined a meeting of the Anwar Ibrahim Club at my house without showing any sign of either emotional or physical discomfort let alone trauma. On the contrary, he was going about matters in a calm and confident manner. His conduct therefore is totally inconsistent with having been violated. In any event, he neither made a police report nor sought medical attention, notwithstanding that two days prior to the alleged act, he had met with Najib and Rosmah as well having talked on the phone with Musa Hassan and met with Rodhwan at a hotel.

It is obvious, from the evidence above, that the complainant was lying through his teeth although Y.A., despite the compelling evidence to the contrary, found him a truthful witness at the close of the prosecution case. This defies logic, let alone the law.

Then again, the expert evidence with regard to DNA led in the course of prosecution case through PW4, Dr. Seah Lay Hong and PW5, Nor Aidora bt Saedon was highly questionable in that crucial information pertaining to the DNA analysis of both the said witnesses which they were obliged to furnish to the court was suspiciously withheld despite them confirming the existence of such information. The real possibility that the samples analyzed were contaminated and even planted were completely disregarded despite such possibilities coming clearly within guidelines set by the international forensic community which were completely ignored, if not, blatantly disregarded by PW4 and PW5 to fit the prosecution’s case. It is obvious had the said possibilities been explored, the conclusions reached would have been very different in that the complainant’s own semen was found in his own anus, there was ample evidence of contributors other than Male Y around the complainant’s perianal, lower and higher rectal region and there was clear evidence of the samples having been tampered with before they were sent for analysis. In such circumstances, the integrity of the said samples was surely compromised. Furthermore, the impartiality of PW4 was highly questionable having regard to the way in which she completely dismissed the very high possibility that the samples sent to her would have degraded to a certain degree by the time they reached her which such degradation was completely absent from all samples in this case. This clearly points to the obvious reality that the samples sent for analysis could not have been what were extracted from the complainant’s person.

Trial within a Trial

The Gestapo-like manner in which I was arrested and the subsequent detention and interrogation by the police all betrayed the hands of the political masters at work. What was the need to send in balaclava clad commandos to effect the arrest if not to attempt to flex political muscle and to display pure vindictiveness? These startling facts were completely ignored by Y.A.

Y.A. had made an earlier ruling to exclude the recovery of certain items including water bottle, Good Morning towel, tooth paste from the lock-up at IPK, Kuala Lumpur where I had been detained overnight from 16.7.08 to 17.7.08. However, you reversed this ruling subsequently which is something most shocking and unprecedented.

Although in the Trial Within a Trial, I had adverted to the role of Taufik and Supt. Jude Pereira, the prosecution elected only to call Taufik in rebuttal in the Trial Within a Trial. Taufik attempted to produce a photostat copy of the warrant of arrest which was only marked as an ID and, therefore, could not be considered as evidence in the Trial Within a Trial. A photostat copy of a document is not admissible as evidence in a court of law. It was in the Trial Within a Trial that primary evidence of the document ought to have been given if the original record had been lost or destroyed.

The prosecution could not, by producing the original warrant of arrest in the main trial, cure the infirmity. It is in evidence that 3 copies of the warrant of arrest were in the possession of Supt. Jude Pereira. The evidence of the warrant of arrest was available during the Trial Within a Trial.

Even Supt. Jude Periera, whose role was adverted to by me during the Trial Within a Trial, chose not to take the stand despite having had the opportunity to have produced the original copy of the warrant of arrest in the Trial Within a Trial.

It was during the Trial Within a Trial that Supt.Jude Periera should have testified. It was clearly unlawful for the court to accept Supt. Jude Periera’s evidence in the general trial for the purpose of rebutting my evidence in the Trial Within a Trial that the DNA profiling from the Good Morning towel, toothbrush and mineral water bottle had been obtained by unfair methods and unfair means and my arrest, therefore, had been procured unlawfully.

In fact, Supt. Jude Periera’s evidence in the general trial confirms that there had been non-compliance with Rule 20 of the Lock-up Rules, 1953 in that I, after my arrest on 16.7.08, had not been placed in the lock-up from 6pm to 6am the following day. The provisions of Rule 20 are mandatory.

If this was the position in our case, which it was, then, clearly, my being taken to the HKL in breach of Rule 20 reflected unfair means and unfair methods being employed by the police to obtain the DNA profiling from the items set out hereinbefore. The position is further compounded by the evidence of Supt. Jude Periera in the general trial that he did not direct police personnel in charge of the lock-up not to touch the said items despite the police personnel in the general trial before the Trial Within a Trial, clearly, saying that Supt. Jude Periera had done so.

So the position comes to this, Supt. Jude Periera, in his evidence on oath in the main trial, supports the defence case that unfair methods and unfair means had been used by the police to obtain DNA profiling from the items set out hereinbefore.

From the ruling made by the court to exclude the items, it is clear it was based on unfair means and unfair methods employed by the police meaning it was by trick and deception that the police attempted to introduce the DNA evidence.

In any event, from the evidence of DSP Taufik given in the Trial Within a Trial and the general trial, the grounds of arrest could not have been given by him to me in Segambut as this is, clearly, contradicted by the evidence of S.N. Nair and myself.

The question of challenging evidence given in the main trial by DSP Taufik and Supt. Jude Periera does not arise. It was the assertions made under oath by me that my arrest was unlawful and unfair methods and unfair means had been used to obtain his DNA profiling in the Trial Within a Trial stood unchallenged by the prosecution by leading lawful evidence in rebuttal of those assertions. In fact, Y.A. should have drawn an adverse inference against the prosecution for not having done so.

FORENSIC EVIDENCE

The prosecution case rests on the evidence of the DNA and so called “findings of seminal fluid” or “sperm” as they claim. As a matter of fact, this is the only forensic evidence upon which the foundation of the prosecution’s so-called proof rests. Yet, this foundation is erected on shaky grounds though this has not prevented them working in hand in glove with the powers that be to mount an insidious and relentless campaign to vilify me.

The fact is that there is not an iota of evidence, DNA or otherwise, that has ever been found in the premises of the alleged act, not in the wash room, bed room, carpets or anywhere else where such evidence ought to have been found.

Supt. Pereira, despite being instructed to keep the HKL samples (marked B1 to B10) in a freezer, deliberately defied the instruction of Dr Siew Sheue Fong (HKL Forensic Doctor) and also admitted that he was in serious breach of the IGSO, (he even stated he took full and personal responsibility for breaking of the IGSO), when he deliberately kept the HKL samples in his office cabinet for about 43 hrs before delivering them to the Chemist. One must not forget that the alleged act was supposed to have occurred two days prior to the said samples having been extracted. Coupled with this 43-hour delay in delivery to the Chemist, it would mean that the samples were already at least 90 hours old by the time they were examined by the Chemist. Undoubtedly, the samples would have totally degraded. Yet evidence by the prosecution claimed that no degradation of any consequence had occurred.

In any event, even the 43-hour delay alone would have seriously compromised the integrity of the samples in terms of its deterioration due to bacterial action. Also, by not storing the samples in the police exhibit store (which will accord access only to him), his deliberate omission of such strict rules of the IGSO has by his very act, presented an opportunity and possibility of tampering of the samples as access to others was made easier. This was disregarded.

There are also no cogent or compelling reasons both in law and practice for Supt Jude Pereira to cut open P27 (the big tamperproof bag containing all the HKL samples which was sealed and handed over to him), ostensibly to remark them (B1 to B10). It is clear that this act was just a convenient excuse to get access to the individual samples which by themselves were clearly not tamperproof as they were deliberately “sealed” with ordinary and easily removable tapes and easily removable HKL paper seals.

Dr Siew Sheue Fong , as evident in court, was most reluctant to refer to his medical notes during cross examination despite being unable to remember details. During the break he was caught surreptitiously taking a sneak peek of his notes. This dishonest act of a professional doctor who ought to have conducted himself in a fair and independent manner was blatantly ignored. Many a time Dr. Siew and Dr Mohd Razali Ibrahim deliberately chose not to answer pertinent questions put to them by my counsel. Instead Dr Siew and Dr Razali’s evidence was accepted without reservation.

Dr Seah Lay Hong (the Chemist) gave evidence that when she received the 12 HKL samples there were 2 samples that were marked as taken on very different dates, she testified she did nothing to seek clarification from Dr Siew . She further testified that she “gave the benefit of doubt” to Dr Siew. My lawyers submitted strenuously that such acts and/or omissions amount to a serious breach of the cardinal rules of international lab protocols and those of the Jabatan Kimia Malaysia. Despite such blatant exposures and abject failures of non observance of strict rules, Dr Seah’s evidence was well received and in totality when it ought to have been jettisoned in totality for reasons of incompetence and gross negligence.

The defence evidence will show that the prosecution claim to have proof of the presence of “seminal fluid” or “sperm” is completely unfounded. In fact, this purported proof is nothing but pure fabrication, a fact which is not that unusual considering the past history of the prosecution in this regard. If they had had any such forensic evidence, they would have guarded it for dear life rather than let it being handled in such a sloppy manner.

SUMMATION

Your Lordship has failed to ensure a fair trial as demonstrated, inter alia, by the following instances:

1. Your refusal during the course of the trial to order disclosure of material critical to my defence, most of which you thought was sufficiently relevant and which fairness required that you should order it to be disclosed before the trial. Your failure to fairly and properly exercise his judicial discretion to order disclosure was not only contrary to Malaysian laws but violated the international standards expected of a modern state which purports to practice the rule of law.

2. Your refusal to act accordingly either to take cognizance or to hold to account those responsible for the flagrant acts of leaking and publishing in the media of prosecution submissions before the matter was heard in court; your utter indifference to my protestations about these transgressions has wittingly or unwittingly facilitated the conspiracy to vilify me in the court of public opinion even as the trial is in progress.

3. Your failure to order that witnesses critical to my defence attend the trial to testify, in circumstances where their involvement was patently material to the issues at trial and recorded under oath in the complainant’s testimony and admitted by statements made by these witnesses to the media. These witnesses relate to the circumstances in which the complainant came to make his early complaints against me. Nothing could be more material to the credit of the complainant.

4. Your finding the complainant to be “a truthful witness” at the close of the prosecution case clearly amounted to prejudgment demonstrating in the process a clear bias against me. Consequently, you have deprived me of my constitutionally guaranteed right to a fair hearing the effect of which is to entitle me to an unconditional release with the charges leveled against me falling to the ground. Notwithstanding this, you have not only failed to order my release but have adamantly refused to recuse yourself from further presiding at the trial.

5. Your arriving at the conclusion that the complainant was a witness of truth without first hearing the evidence of the defence would render the continuation of this trial an exercise in futility. What use would there be for me to adduce evidence to show that the complainant is in fact a liar if you have already found “him to be a truthful witness” and that his evidence is reliable and conclusive and by virtue of that irrefutable? It is untenable and the law does not allow you to do what you have done.

6. Your finding that the complainant has corroborated himself by complaining to the medical doctors of sexual assault was a glaring error of law apart from it being in gross disregard of a finding of fact, that is, that the clinical finding had indicated no evidence of penetration. Additionally, your failure to question why the prosecution has for no apparent reason refused to call in the first medical officer who had examined the complainant to testify. Did it not cross your mind that this failure was prompted by the need to suppress evidence that might be unfavourable to the prosecution?

7. Your accepting without hesitation the forensic evidence as corroborative of the complainant’s account in circumstances where there were obvious concerns about how those samples were obtained, labelled, stored and analyzed.

CONCLUSION

This entire process is nothing but a conspiracy by Prime Minister Dato’ Seri Najib Razak to send me into political oblivion by attempting once again to put me behind bars. I therefore declare that I have no faith whatsoever that justice will prevail in these proceedings notwithstanding the valiant efforts made by my defence team. As I have said at the outset, this is not a criminal trial. It is a charade staged by the powers that be to put me out of action in order that they remain in power.

In 1998, Tun Dr. Mahathir Mohamad did just that and by his Machiavellian use of all the organs of power of the State, succeeded in getting me convicted for fifteen years for offences that I had never committed. Such was the tyranny and injustice done to me then. And such is the tyranny and injustice being perpetuated today.

Najib Razak is doing the same thing as his mentor did, which is to employ all means within his power through the media, the police, the Attorney General and the judiciary in order to subvert the course of justice and to take me out of the political equation.

This relentless conviction to send me back to prison became all the more imperative because of the major victories gained by the opposition Pakatan Rakyat in the March 2008 elections. Their worst fears were confirmed when it became clear that once my legal disqualification was over I would be contesting for a parliamentary seat and if I won, would be elected leader of the opposition.

It was therefore no coincidence that this new conspiracy surfaced three months after the March 2008 victories and the formal charge against me was made just one month prior to my contesting the Permatang Pauh parliamentary seat. The sequence of events that unfolded prior to the formal charge appeared to be lifted from the plot of 1998 minus, in this latest episode, the black eye affair and the purported victims being led into court as partners in crime. In this second episode, the conspirators have tweaked the plot to make the complainant take on the role of a helpless victim, having realized that the 1998 method of employing Stalin-like confessions and the portrayal of the alleged victims as remorseful and repentant sexual deviants were just too much for the public to believe.

Hence, during the entire examination of the complainant, the prosecution left no stone unturned in their attempt at painting the picture of a helpless, naive and innocent young man who is a witness of truth and whose testimony should be believed regardless of any evidence to the contrary. The fact is that in the entire scheme of things, the complainant, who was just a university drop out working part time helping out my chief of staff, is essentially a pawn being employed by the shady plotters to achieve their devious ends in the conspiracy. And yet it was the decision of the court after the close of the prosecution case that he indeed is a truthful witness.

The preparation entailed in this conspiracy was most elaborate and went all the way to the Prime Minister himself and his wife Rosmah Mansor both of whom by the complainant’s own admission had met him in their residence where he purportedly complained of being sexually assaulted. The initial statement by Najib that he had met with the complainant merely to discuss about a scholarship was a blatant lie only to be retracted later after various exposes were made via the social media and the internet blogs. It was obvious that neither Najib nor Rosmah would not want to be seen to be part of the conspiracy being themselves embroiled in a series of other scandals the details of which have been raised in Parliament which to date have never been categorically refuted. But the stakes in this conspiracy are so high that nothing can be left to pure chance for indeed the prospect of the UMNO led Barisan Nasional losing power to Pakatan Rakyat is becoming more real by the day.

The main thrust of the conspiracy was to fabricate this sodomy charge in order to inflict maximum damage to my character in the run-up campaign to the by-elections. Towards this end, an intense and virulent media blitz was launched concurrently with the staging of rallies and ceramahs where the focus of the debate was not on any social, economic or even political issues but purely on my person and my morality. The plotters for reasons known only to themselves became privy to information which would be used subsequently by the prosecution and went to town in an orgy of character assassination calculated no doubt to ensure a humiliating defeat for me in the polls. But Allah is Great and instead of losing, I won the Permatang Pauh seat with a thumping majority of 15,000 votes.

But the zeal to consign me to political oblivion continues unabated. Najib seems to think that by destroying my political future, it would also destroy the prospects of Pakatan Rakyat ever coming to power.

Hence, nothing is spared to ensure that I will be convicted in order that the UMNO led Barisan government continues to rule.

Having regard to all the above, I now wish to state that this trial is for all intents and purposes a show trial. I say this not to mock your Lordship nor with animosity towards anyone personally but I sit before you in the dock only to speak what I know and what I believe with conviction to be the truth. And this conviction is borne by having been in public service for more than forty years a quarter of which was spent within the walls of incarceration in Kamunting and in Sungai Buloh. The fact remains that I was condemned to imprisonment not because of any crime that I had committed but for my political beliefs and convictions and more significantly because back in 1998 I had posed a clear and present threat to the more than two decades of autocratic rule of Mahathir.

I say it because as I’ve stated earlier, the court’s integrity has been completely compromised and bears all the classic symptoms of a show trial where the script has been effectively written and the outcome a foregone conclusion. I say it because as a presiding judge you have demonstrated beyond the shadow of a doubt your complete lack of impartiality. I say it because you have consistently refused to recuse yourself even in the face of mounting evidence of your bias against me. I say it too because you have persistently turned a blind eye to the gross violations of protocol and procedure committed by the prosecution while at the same remaining impervious to my protestations about these blatant irregularities that would have without more alerted any impartial judge as to the malice and bad faith of the prosecution.

In the matter of the duty of a judge, the Holy Qur’an commands:

“And when you judge between mankind
Then you judge justly”
Surah An-Nisaa:58

ANWAR IBRAHIM