Wednesday, July 28, 2010

Is Bank Negara's Investigation Process exempt from Public Scrutiny?

Over the past many years, many enforcement agencies investigating and enforcement agencies have come under legal and public scrutiny. On top of the the list is the Police Force and I admit they have come under more than their share of the scrutiny.

As a lawyer, I have found the police generally accessible during their investigating periods. You can actually get to meet and talk to the investigating officers, even their superior bosses if you are unhappy with the speed or lack thereof of their investigations. In spite of the rare cases, especially high profile ones, I have always found the police generally cooperative.

The Police seem to understand that lawyers too form part of the justice system and that it starts from the point of arrest, seizure of goods and investigations. Even the Customs Department or the MACC understands this. But does Bank Negara?

There is a general feeling among the public that Bank Negara Officials in the enforcement and investigating units hold themselves out as exclusive. I have yet to ascertain this factually though I am keen to explore this. It will be interesting and shocking fact to discover if indeed they behave exclusively! What would civil servants in enforcement want to have a veneer of exclusivity. I will get exasperated if relevant Bank Negara investigating officers or their bosses refuse to see me on a matter that concerns my client's just interests.

My exasperation is simple: if a lawyer is unable to ensure that justice is done to his client, then what can the lay client do? It can be as simple as wanting to meet the investigating officer or if he is unable to respond coherently, than to meet his bosses to find out why investigations are taking a long time and to offer assistance to speed it up. Isn't the point of investigations to enforce the law justly and in accordance WITH the law?

Last week, I had chats with a few MPs and 2 Ministers on this possibility because I am beginning to develop the feeling that maybe some parts of Bank Negara have evolved into exclusivity. While I may be a lawyer acting for my client, I cannot divorce myself from the fact that I am also a very concerned citizen who does his two cents worth for justice, human rights and to protect the credibility of OUR institutions - that includes Bank Negara. I want to be able to ascertain certain attitudes, facts, and views before I blog further about the enforcing and investigating unit of Bank Negara.

Enforcement agencies generally should know the difference between ENFORCING and OPPRESSING. The Police Force generally understand this. When you conduct your investigations expeditiously, then you are playing fair. On the other hand, if you pussy-foot or incompetently investigate, you are being oppressive. The innocent party suffers as a result of your incompetence or delay. If this was the case, then the suffering party should be remedied and if I have my way, I want the officer who so nonchalantly visits injustice on others to be punished too.

I am having another meeting soon with some of the MPs and Minister on this issue of enforcement and investigating capabilities in Bank Negara and the reluctance or willingness of their officers to meet lawyers. Once I get a clearer picture, it is time for us to educate the public.

Peace !

Thursday, July 22, 2010

Have we been systematically reduced to an imbecile? Part 2: Today, the “best” of us have become “educated imbeciles

  1. We may be “experts” in some fields but totally ignorant of many basic things. Even the notion of us being “experts” is debatable since it is relative, subjective and time constrained. The “best-of-us” are equipped with diplomas, degrees, masters and even PhDs that “may never be useful” nor do these papers guarantee wholesome thinking capabilities. There are many reasons for this.

Firstly, our education objective seems to be geared towards obtaining a paper qualification per se for the sole purpose of obtaining employment – typically third world mentality. Since the main focus is to obtain the qualification and not learning, our education system priorities and emphasies an examination orientated values.  Learning values are absent. We sacrifice substance (content/knowledge) at the altar of form (the paper qualification). No one is denying the role of examinations but our policy makers have never sought to create a balance between examinations and learning.

Hence, it is unsurprising that today you have law graduates who lack basic legal knowledge, economics graduates who lack basic economic knowledge and the list goes on. It is frightening that these are the young people who will be the main group that will be in the decision making positions in society! We will go through a period of intellectual decline in our society for some time and maybe forever if the situation is not rectified.

Secondly, the focus on academic excellence is blurred and often overtaken by politics in this country. The debate on the effective medium of instruction in the educational sector is spinned into a “nationalistic loyalty” issue. I find it completely humorous that “karbon dioksida, asimilasi or injunksi” is considered more effective than “carbon dioxide, assimilation or injunction”.  These words and many more certainly do not sound like Bahasa Melayu from any State to me. Hence, the students will have to learn for the fist time these original popular words or the convoluted words created by some folks sitting in DBP.

The effective medium of instruction is vital because that will determine the opportunity for research and further reading. The more you read, the more information you have, the wider your perspective and hopefully, your understanding becomes broader and deeper. Your ability to think is limited by the amount of words or concepts that you have in your brain. We must nurture the brain’s thinking capabilities. This is how we nurture a culture of knowledge. However, our politicians lack such motivations only because it requires long term planning and is politically inexpedient.

Thirdly, the policy makers seem to prefer quantity over quality. None of us will dispute that we want more Malaysians to be educated. That is a foregone conclusion. However, our policy makers do not seem to realize that it is more important that Malaysians receive a holistic and quality education. Otherwise, we will be churning out technocrats or ‘worker ants’ for the economy who are totally devoid of humanistic qualities lacking in the spirit of citizenry. We must remember that much of the growing up period of our children are spent in schools or school related activities right up to the age of 17, at least and age 22, if they go to the Universities.  They pick up the ‘values’ that are floating in the schools and the universities. What kind of values are floating? Excellence or mediocrity? Humanistic or materialistic? Universalistic or racial/religious?

It gravely disappoints me that the Dewan Negara does not have senators appointed by the Government especially to monitor the primary/secondary education sectors and tertiary education sector. This reflects their priority or lack thereof towards the education sector in this country. On the other hand, we are fed with entertaining information on the number of “pelajar cemerlangs’, the number of universities that are sprouting in our country and such. Once again, things that should simply be a matter of fact are turned into grand achievements by our political leaders complete with their “lawatan ke sekolah” campaigns. When will they ever grow up?

Fourthly is our general feudalitic-peasant mentality or values that we have. We have become a nation of hand-kissing. The hand that is being kissed is better than the lips that do the kissing, so we are “taught”. This is a perfect practice of patronage and “sucking up” masquerading as “budaya sopan” (polite culture). The often overlooked fact of this hand-kissing culture is that it actually has inhibitive effects on the development of ideas, thoughts and intellectual development. I am not exaggerating. Let me explain.

I had the opportunity to do a degree in Economics locally and a law degree in UK. I experienced the vast difference in learning cultures. In our hand-kissing culture, it is considered rude or inappropriate if you disagree with your lecturer (especially if it is on the official religion!). In UK, it is considered disrespectful if you do not express your disagreement or alternative views if you have them! The English professors want you to argue with them. Generally, ours want us to passively agree with their expertise! Two different cultures have different views on what is “disrespectful” – one if you do, the other if you don’t!

We do not respect dissent, even if it just an intellectual dissent. In fact I doubt if our young people above the age of 21 even know what the term “intellectual dissent” means. However, this was not the case when I was in lower secondary. We were learning critical thinking in Form 4. Maybe the medium of instruction being in English helped. I do not know. Sometimes, with a language the “culture of the language” accompanies it.

Our hand kissing culture considers it rude and even treacherous to dissent with the views of whose hands you are supposed to kiss. Our culture does not understand that you can have differing views and yet have profound respect for the person whose views you disagree. Our culture does not allow for open, honest discussions and confuses it with an attempt to undermine the person you are arguing against. We are still in the feudalistic mindset. So, we just kiss hands keeping our thoughts untested and unannounced to ourselves! 

So I ask you: if such a culture and mentality is not addressed, what good will the finest teaching techniques or the best technology do? With respect, it will just be like giving flowers to monkeys. Politicians do not understand this because they do not spend time reading or thinking about this. They are short-term minded. They only depend on the views given by their respective sub-standard civil servants who have been conferred various honorific titles through years of faithful hand-kissing. Do not get me wrong, I have nothing against kissing the hands of those whom you love and truly respect – but the hands of strangers who happened to be in “higher positions” than you? That seems humiliating to me or at least pretentious.

Only in this country you may have a person with a PhD holding himself out as an eternal expert in his field (and if it Islam, then an absolute expert). While, if you understand the history of learning and knowledge, a “professor” or a PhD holder is a serious student of his field. He is an expert in studying his field or he has specialized in the study of his field…and still studying.

If we are serious about nurturing a culture of knowledge and thinking in our society, we need to radically arrest this hand-kissing culture of subtle subjugation in all its forms. A study must be done on this feudal-peasant mentality and how to reverse it.

The masses, however, considers these “imbecilic” experts and the not-so-best-of-us as capable of wholesome perspectives and indeed consults them on other matters in which the experts and the other are clueless. For example, we have people consulting religious “experts” on scientific or commercial matters and taking their views seriously. Likewise, politicians’ views on the economy or education are held believable. Likewise, we give important positions that can have damaging effects on our lives to civil servants who cannot think beyond uttering the phrase, “ kami hanya jalankan tugas” (we are only performing our duty). It never seems to dawn upon these civil servants who have great powers of discretion that “performing a duty” means “performing a duty effectively and efficiently”.

Once again I blame our failure collectively to create a value system that extols efficiency, thinking and knowledge.

Peace !

Sunday, July 18, 2010

Have we been systematically reduced to an imbecile? Part 1 - Victims of Categorization

If I was to say that there has been a systematic effort to ensure that the people do not have the capacity to think, I may be dismissed as a conspiracy theorist. However, having observed, researched and studied the effect of various institutions that have been set up in our society and their effects on the people, I am convinced that the process to ensure that people lack thinking capacity is ongoing. In short, what I am proposing is this; - we have been systematically reduced to “imbeciles” in many aspects of our life when in actual fact, we were mostly born with the natural ability to multi-task, multi-think and have multiple personalities. We were, if you like generally born wholesome but, have been reduced to small, almost insignificant parts by the system for the system.

One meaning of “imbecile” is “a person of moderate to severe mental retardation having a mental age of from three to seven years and generally being capable of some degree of communication and performance of simple tasks under supervision. The term belongs to a classification system no longer in use and is now considered offensive”. The other meaning is “silly”.

Let me state my case briefly for your consideration and criticism.

1. Victim of categorization - Once upon a time, we read in history for example, that a person is a poet, a scientist, and a thinker. In short, society then allowed your multiple personality to flourish. Whether you read European, Chinese, Indian, Asian or “Islamic” history you will find people of multiple personalities exhibiting multiple talents. For example, Omar Khayyam is famous as a poet, but he was an outstanding mathematician, astronomer and philosopher, he was also skilled in medicine and music. He had a wide range of interests and wrote many books on different subjects. His work consisted of two books on physics, four on mathematics, five on philosophy and one each on astronomy, history, music and climatology.  We can find many other examples. Today, by our sub – standards, we find them extraordinary. We hold them in awe, which is an admission that we hold ourselves incapable of such multi-dimensional and varied thinking.

In short, our (value) system has been designed to limit our potential, curtail our expression of our multiple personalities and to behave in “expected manners” like in a controlled laboratory. As an extreme example, our society will possibly flip if a person who has a passion for Islam and is reasonably knowledgeable about it equally loves to visit clubs to dance and enjoy the music. It might even become scandalous because we have been taught to forget that such a person is also a human being who likes variety in his life. Our value system says that if a person speaks on Islam, it is preferable that he is in a songkok/skull cap/turban, spots a beard of sorts and a long flowing gown. At the very least he is supposed to look extremely serious and shuns or at least publicly shows that he shuns “good clean fun” that lesser mortals enjoy. It often seems to escape common sense that if he is not “mortal-like”, how can he relate to other mortals?

You can extend the example to many other characters/roles/situations – politicians, civil servants, women, men, professionals, etc. For example, until March 2008, incumbent politicians are expected to behave like feudal lords and most of them still do. Psychologists call these as “role-playing” but how the roles are played out is influenced by various factors such as culture, value-systems and the thinking capacity of the society as a whole.

Once you are categorized into a certain role, you are expected to behave according to “how you are expected to behave in that role”. In this sense, for the more intelligent and creative person, he may become a victim of categorization (“VOC trap”) where their talents are being suppressed. Only those who refuse to live the life as set by others for them are able to break free from this VOC trap. The unthinking majority however become trapped in the VOC trap and become “imbeciles” thinking that is the natural state of things. (There are actually many consequences of the VOC trap but all of it cannot be discussed in this blog.)

Another plain example of how the VOC trap works against the unsuspecting and unthinking masses is if you are a Muslim or Malay in this country. Once you are legally categorized as such, you are expected to give away much of your thinking ability, your privacy and even your right to live as a thinking adult to complete strangers whom you were not even given the opportunity to appoint or vote. One meaning of imbecile is a silly or stupid person. Is it not silly to live your entire life based on how a complete stranger deems fit? Though it is normal for a child to live under constant supervision in all aspects of his life the VOC trap compels the adult to live likewise. Many fail to see the impact of this in a democracy.

In our country, which I am afraid is very much third world in its general mentality and values, this VOC trap is manipulated by the more cunning ones among us to perpetuate their lordship over us and hence safeguard their wealth and power. We appear to have a culture that does not really respect nor want excellence. In fact, I believe very strongly that we fear competitive excellence.

We do not have a culture that encourages healthy competition and the strife for excellence. On the other hand, we seem to have a culture where to move forward, we try to kill off anyone that exudes excellence or any semblance of efficiency or cleverness. The culture of excellence is replaced by the culture of patronage, “sucking up”, pretense of stupidity, and special privileges. Hence, our society has a value system that favours the cunning, the one that lacks self-respect or thick-skinned and the greedy. Hence, through this process of suppressing the dedicated and thinking ones by the cunning ones, we throw up main players in society whose intellect is almost imbecilic. We do not throw up the best by healthy competition but throw up the worse by suppression and discrimination.

People seem to achieve prominence in our society not because they are excellent but because the rest have been systematically made to be below par. When you make everyone blind, just with your one eye, you become their king.

If you understand what I have said thus far, you will be able to understand why, by any standards, we do not seem to exude even average standards in any of the sectors in our society. We have people with “Dr” and “Prof” titles before their names appearing on television saying things that will make a child of 10 ask you if it is a comedy show. You have some judges whose intellectual capacity or even inclination you totally doubt. The quality of politicians and their selection process in our country, you know already. The list is endless.

We extol imbecility and mediocrity and find cleverness or independence of thoughts or competitive ability threatening to the point of it being a sin!

We will forever be trapped in a vicious circle unless we want to radically do something about it. Again, the task must fall on the Raperas.


Next: Part 2 - Today, the “best” of us have become “educated imbeciles”.

Saturday, July 17, 2010

What is a criminal trial?

Many people have asked me many things about criminal trials. Why was the accused acquitted (found not guilty) ? Is it not clear that he is guilty? Why did not the Judge accept that particular evidence and so on? Judge MUHAMAD KAMIL AWANG J has done a helpful and interesting observation on what is a criminal trial and the principles at play in the case of Masri Tan Sri Dato' Mohamad & Anor v. Public Prosecutor
[1998] 1 CLJ SUPP 270] as follows:

"What is a criminal trial? And how does it differ from a historical or scientific inquiry? At a research, at Harvard University it discloses that the goal of the historian and scientist, at least in theory is the uncovering or discovery of truth. The historian seeks to determine what actually happened in the recent or distant past by interviewing witnesses, examining documents, and piecing together fragmentary record. The paleontologist searches for even more distant truths by analyzing fossils, geological shifts, dust and DNA. Since what's past is prologue, for both the historian and the scientist, efforts are often made to extrapolate from what did occur to what will occur, and generalization - historical or scientific rules - are proposed and tested.

Although there are ethical limits on historical or scientific inquiry, the ultimate test of a given result in these disciplines is its truth or falsity. Put another way, there are no "exclusionary rules" in history or science, as there are in law. Historical and scientific inquiry is supposed to be neutral as to truth that is uncovered. Finally, all "truths" discovered by science or history are always subject to reconsideration based on new evidence. There are no prohibitions against "double jeopardy". Nor is there any deference to consideration of "finality"; nor are statutes of limitations. In summary, the historical and scientific inquiry is basically a search for objective truth. Perhaps it is not always an untrammeled search for truth. Perhaps the end of truth do not justify all ignoble means. But the goal is clear: objective truths as validated by accepted, verifiable, and, if possible, replicable historical and scientific tests.

A criminal trial is quite different in several important respects. Truth, one important goal of the criminal trial, is not its only goal. If it were, judges would not instruct jurors to acquit a defendant whom they believe "probably" did it, as they are supposed to do in criminal cases. The requirement is that guilt must be "proved beyond a reasonable doubt." But that is inconsistent with the quest for objective truth, because it explicitly refers one kind of truth to another. The preferred truth is that the defendant did not do it; we demand that the jurors err on the side of that truth, even in cases where it is probable that he did do it. Justice John Harlan said in the 1970 Supreme Court decision:

In Re Winshop 397 US 358 , 372 [1970] it was said that "I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value that it is far worse to convict an innocent man than to let a guilty man go free." The sentiments are traceable to the nineteenth century, to William Blackstone's well-known maxim that under the common law "it is better that ten guilty persons escape, than that one innocent person suffer". (4 Blackstone, Commentaries 358).

In a criminal trial, we are generally dealing with a decision that must be made under conditions of certainty. The law is a relatively subtle instrument capable of making refined distinction between the standard of proof required to deprive a person of his liberty, on the one hand, and to deprive him of money, on the other hand. As Justice Harlan, further commented in his Winshop opinion:

If, for example, the standard of proof for a criminal trial were a preponderance of the evidence rather than proof beyond reasonable doubt there would be a smaller risk of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent.

The burden of proof in a criminal case is "beyond a reasonable doubt", while the burden of proof in a civil case is "by a mere preponderance of the evidence". Simply put, this means that it takes more and better proof to convict a criminal defendant of a crime than to hold a civil defendant liable for monetary damages. How much more or how much better are not subject to precise qualification. We know what proof by a preponderance is supposed to mean. Even in a close case, the side that is more persuasive wins. In civil cases, truth is supposed to prevail, without the law's thumb on either side of the scales of justice.

In addition to the requirement of proof beyond a reasonable doubt in criminal cases, there are numerous other barriers to absolute truth that have been deliberately built in to the process to serve other functions. Some of these barriers to absolute truth that have been deliberately built in to the criminal process to serve other functions. Some of these barriers can be justified as perhaps contributing to the search for truth in the long run, which probably sacrificing truth in a particular case. The exclusion from evidence of a coerced confession may produce falsity in a case where confession, though coerced, is nonetheless true and can be independently corroborated.

We have opted for an exclusionary rule which the coerced confession and all its fruits are excluded, even if the fruits prove the truthfulness of the confession. Such a broad exclusionary rule is not designed to serve the goal of truth, either long or short term. It is also intended to serve an important set of values entirely unrelated to truth. Those include privacy (or, in the eighteenth-century language of the Fourth Amendment, "security"), freedom from unreasonable governmental intrusion, and the integrity of the mind and body. These values were regarded by those who introduced the "exclusionary rule" as being more important, at least on occasion, than truth. The exclusionary rule explicitly recognises that the guilty will sometimes have to be freed in order to send a message to the police and prosecutors that the noble end of seeking the truth does not justify ignoble means such as unreasonable searches or coerced confessions.

Our system of justice thus reflects a balance among often inconsistent goals, which include truth, privacy, fairness, finality and equality".

Peace !

Friday, July 16, 2010

BookReview12: Islamization and Activism in Malaysia - Julian CH Lee

This book is written by a young, brilliant academic - Dr Julian C.H. Lee.

This thoughtful and timely book deals in depth with some of the most important debates surrounding inter- ethnic life in contemporary Malaysia. He examines for example, the Islamic State debate in the light of the democratic and multi-religious setting of Malaysia.

Julian guides us though the minefields of politics, religion and ethnicity with adeptness and clarity. He courageously and interestingly tackles the legal issues of conflict of jurisdiction between the civil and syariah courts by discussing related cases that have been considered before the Malaysian Courts.

His findings and descriptions are clearly and accessibly presented and his dispassionate explorations of both complicated legal matters and sensitive religious issues are handled with rigour and thoughtfulness.

The book is readily available in all major bookshops and is now going for 2nd reprint.

Publisher: Institute of South East Asian Studies Publications, Singapore.
Year of first Publication : 2010
Price      :  RM38.00

Peace !

Friday, July 2, 2010

Politicization of Religions and the “theocratization” of politics

Let us consider an alternative perspective.

Politics appears to the only route that humankind seems to know to govern the nation. Political history has shown us that many wars have been waged by politicians. The excuses may be different and the people pushing for the wars may be different but it is ultimately the politicians that make the decision to wage wars. Many political observers world wide also acknowledge that politicians are prone to excesses, abuses and deceit. Given half a chance they will sell even their own mother to stay in power, as some say it rather crudely.

Politics is about power. Power is a divine trait, godly. Since it is a divine trait, in the hands of lesser mortals, it can be intoxicating and addictive. Hence, while political power is a major responsibility it can equally be a dangerous tool in the hands of the lesser mortal. It is never easy to give up neither power nor the uninformed supporters.

The more extreme the supporters, the more secure the politician. The more loyal the supporters, the more the politician has to pander to their inclinations to maintain their loyalty. This is particularly so when the loyalty is based on patronage.

This is the vicious cycle that the politician has trapped himself in for the sake of power. This is sometimes called “riding the tiger syndrome”. It is almost impossible to dismount the tiger because it might bite you.

The politician rides on a cause, a platform and the promise of a better life on earth. People who support the cause, support the politician. They get together into a club called the “political party”. They create rituals, mantras, levels of authority and ranks. At the bottom is the ordinary member whose usefulness is not only to make up the numbers but to support their leaders unquestioningly in the name of the party. The politician cannot make drastic changes for ordinary members constantly need something that they have already identified themselves with without understanding. Change implies need to think and to alter behavior which will upset the members. Only variations of what is already believed and upheld by the party members is allowed even if it gradually strays from the original ideal.

Religion appears to be the only route humankind seems to know to relate to the supernatural, and to make sense of the “spiritual” world. History of religions has shown us that many wars have been waged by the religious leaders. The excuses may be different and the people pushing for the wars may be different but it is ultimately the religious leaders that make the decision to wage wars. Many observers world wide also acknowledge that religionists are prone to excesses, abuses and deceit. We have heard of the inquisition, burning at the stake, killing in the name of “god” ethnic cleansing, “Catholic, Buddhist, Hindu and Muslim terrorists” etc.

Religion is about influence and about instilling belief in a person’s heart. Influencing a person’s heart and “instilling faith” is a divine trait, godly. Since it is a divine trait, in the hands of lesser mortals, it can be intoxicating and addictive. Hence, while religion has tremendous potential for guiding good human conduct and a major responsibility it can equally be a dangerous tool in the hands of the vested interest religionists. It is never easy to give up neither the power to influence nor the uninformed supporters. The more extreme the supporters, the more secure the religious leaders. The more loyal the supporter, the more the religious leaders has to pander to their inclinations to maintain their loyalty.

This is the vicious cycle that the religious leaders have trapped themselves in for the sake of power. This is sometimes called “riding the tiger syndrome”. It is almost impossible to dismount the tiger because it might bite you.

The religious leader rides on a cause, a platform and the promise of a better life in the hereafter. Adherents, who support the cause, support the leader. They get together into a club called the “X religion”. They create rituals, mantras, levels of authority and ranks. At the bottom is the ordinary adherent whose usefulness is not only to make up the numbers but to support their leaders unquestioningly in the name of the religion. The leader cannot make drastic changes for ordinary adherents constantly need something that they have already identified themselves with without understanding. Change implies need to think and to alter behavior which will upset the adherents. Only variations of what is already believed and upheld by the adherents are allowed even if it gradually strays from the original ideal of the “founder”.

If you agree with the above alternative analysis and if it is correct, then imagine the potency of mixing the two – politicization of religion or the “theocratization” of politics!

When religion is politicized, it moves away from the individual and resides in a select few who bestow upon themselves the power to determine what should be believed and what should not. Political power may have control over your body but religious power attempts to control your very emotions, beliefs and soul. With this mix, the control over you is complete.

Now, just sit back and imagine the colossal catastrophe that can be unleashed by the lesser mortal with vested interest who now has the sniff of what is divinely!

Let's discuss. Let us be wary today.

Peace !