Sunday, October 23, 2016

Our unifying national philosophy

OCTOBER 3 — A nation without an ideology is like a teenager without a direction. A direction of some sort, even a broad and general one, for example, to appreciate life and its gifts is essential to determine the quality of life.
It also acts as a fence that reminds the teenager to be wary of influences that may make him unappreciative of life’s gifts, such as indulgence in drug abuse. 
Likewise, a nation will just float along aimlessly and in conflicting directions if the people lack a national ideal they can use as a yardstick. I have written many times before, asking what is our national dream and philosophy, keeping in mind we are a multi-ethnic, multi-religious, multi-lingual, multi-cultural and cosmopolitan nation.
We require a common national philosophy and a set of national values that can unite us as Malaysians and guide our Malaysian spirit to evolve and grow. Like nurturing a child, a nation requires constant nurturing, too.
Today, we perceive our nation to be in a state of ethnic, religious, social and economic tatters. Madness in behaviour and speeches, and mediocrity in work and productivity appear to have become a national norm.
Our leaders have to be proactive to reverse this trend and correct the perception. If the leaders are able to remove the political cataract blinding their eyes, they will see the nation is crying out for a direction and a national philosophy all Malaysians can identify with. 
As a nation that achieved independence, we were learning how to co-exist as Malaysians due to our diverse backgrounds.
We had our first racial clash, albeit politically originated, in May 1969. That was our first and I am sure our last bitter experience of a civil clash. 
As a result of this bitter experience, our past leaders were wise to recognise the need for a national philosophy which can be a guiding force to unite and provide a national direction for the people.
The National Consultative Council, headed by the late Tun Abdul Razak, had the unity and “soul” of the nation in mind when the principles of the Rukunegara were formulated.
What is so special about the Rukunegara? Firstly, everyone seems to have forgotten it was formalised as a national ideology through a declaration by none other than the Yang diPertuan Agong on  Aug 31, 1970.
I learnt the Rukunegara in school and I recall reciting it at school assemblies. It represented our national values.
It has five main principles namely, belief in God, loyalty to the King and the country, upholding the Constitution, rule of law, and good behaviour and morality.
The purpose of instilling these five principles is explained by the preamble to the Rukunegara. 
The preamble provides Malaysia aspires to achieve a greater unity for all her people by:
  • Maintaining a democratic way of life;
  • Creating a just society in which the wealth of the nation is equitably shared;
  • Ensuring a liberal approach to her rich and diverse cultural traditions, and;
  • Building a progressive society which shall be oriented to modern science and technology;
The Rukunegara contains not only universal values so relevant to a diverse society like ours, but it also sets a clear direction which we all can share to make this nation great.
We really need to be united by common values before we are pulled apart by mischief makers in our society who are bent on dividing us.
What is urgently required now is the rebirth of Razak’s political will to give life to the principles of Rukunegara. 
I support the increasing call that the Rukunegara is made as a preamble to the Constitution of Malaysia.
This will allow the courts to interpret the Federal Constitution within the context of the national philosophy particularly with regards to the protection of the fundamental liberties of the citizens as enshrined in the Constitution.
It will also enable the protection of the constitutional monarchy and the parliamentary democratic political structure of our country. 
If our current leadership has Razak’s wisdom, foresight and courage, I foresee discussions, conversations and the political will to promote the Rukunegara to the position it was meant to be.
However, as Just International president Dr Chandra Muzzafar recently pointed out, since the 1980s, the Rukunegara seemed to have been systematically put aside. Is it any surprise then there is a feeling today that our nation seems to have lost its soul while we may have generally achieved major material progress? 
I appeal to our current leadership to put back the soul in our nation. 
* Jahaberdeen is a senior lawyer and founder of Rapera, a movement which encourages thinking and compassionate citizens. He can be reached at rapera.jay@gmail.com.
This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.

Sunday, October 2, 2016

Managing the judge

SEPTEMBER 26 — I often advise young litigation lawyers to know who the judges they are appearing before are and, if possible, to observe some of the trials they are presiding over. Talking to a few seniors about the conduct and behaviour of the judges in trials and hearings is equally important. Different lawyers may have different experiences with the same judge.
Being humans, no two judges are alike. Some judges make it a total pleasure to appear before them right from case management to conclusion of trial. These judges are friendly, courteous, systematic and understanding of the constraints litigation lawyers face. Some other judges may be considered as difficult for various reasons. There are also judges who are mostly silent on the bench. You will not know what they are thinking while some others, you wish they will not speak so much. All this is normal as human beings are prone to idiosyncrasies, prejudices and making mistakes.
If the lawyer has never appeared before a certain judge, I find case managements are a good time to understand the kind of judge you will be facing. I believe judges also use the same time to assess the lawyers. It is like some legal “dating” before the trial begins.
It is an accepted principle in the legal process that it is possible for a judge to make mistakes in evaluating evidence and therefore, make the wrong decision. Hence, the appeal process. This is common in litigation.
The litigation lawyer has the duty of advancing his client’s interest and legal position. Sometimes, you may be faced with a difficult judge whom you find to be interfering too much with your cross- examination, for example. Trials by nature can be quite stressful and it is possible for us to get carried away by emotions. It is always helpful to remain calm as it is when you are calm you are able to formulate the correct sentences and remain focused on your client’s interest. If you feel the interference is unwarranted, it is important you respectfully get everything on record so that on appeal, you will appear courteous, sincere and reasonable.
It is critical that litigation lawyers remain professional and courteous even when they may be annoyed as succumbing to annoyance may worsen the situation. While it is critical the trial lawyer should hold his ground on matters that concern the interest of his client, it is pointless to argue with the judge. Quarrelling with a judge in open court is completely unprofessional and embarrassing for everyone. Judges, too, generally avoid unnecessary arguments with trial lawyers as it may diminish their own reputation.
Sometimes, during trials, it is common for lawyers and judges to get into a heated argument about the law or what is permissible under the Evidence Act. Sometimes, it may concern the nature of the question the trial lawyer wants to ask or his style of asking the question which the judge may not approve. All these are common court drama. I have experienced some wise judges stand down to let matters cool down and sometimes, invite the lawyers into chambers to discuss the matter. Judges are experts at maintaining impartiality or at least the appearance of impartiality and seasoned trial lawyers are experts at managing their emotions quickly or at least the appearance thereof.
One of the important ways of managing the judge is to come for trials prepared. The easiest way to annoy a judge is to appear before the judge unprepared or shoddily prepared for your case. In this regard, extensive pretrial preparations are important such as finding out how the judge likes the bundles or exhibits to be prepared, the witness statements to be read or deemed read and so on. Knowing the legal angle of your client’s case and also being peremptorily prepared for possible questions by the other side or even the judge is useful as this may earn the judge’s respect.
I know it is instinctive for trial lawyers, who make a living by arguing, to automatically argue or rebut a position the judge takes which is contrary to his. I find this is not a useful approach. I often advise my own legal team to never behave defensively with a judge. It is important for trial lawyers to concede when they are wrong or make a concession when it is not particularly important for their client’s case. In other words, the trial lawyer should always keep his ego carefully locked up in his briefcase.
While I have experienced one or two judges who had given me a difficult time in my early years of practice, I find it distasteful when I hear some lawyers say they lost the case because the judge does not like them. Being in practice for many years, I know this is untrue and cannot be true.
Firstly, the judge has better things to do than to invest his personal feelings in a trial lawyer. Secondly, the judge is always mindful he has to legally justify his decision and hence, the judge would not jeopardise his career to spite a lawyer.
As long as trial lawyers remember judges are human beings and that they themselves have a duty to present their case professionally and as efficiently as possible, I believe it will be a reasonably pleasant day in court notwithstanding the stress of a trial.
* Jahaberdeen is a senior lawyer and founder of Rapera, a movement that encourages thinking and compassionate citizens. He can be reached at rapera.jay@gmail.com
** This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail Online.
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