YES, NOSTALGIA ISN’T what it used to be: ‘Frankly speaking, I see no hope for the older generation,’ says lawyer Puspawati Rosman, 28. ‘We should start with educating the younger generation to raise their awareness of issues of justice and human rights.’ Ouch. Puspa, as she’s known to her friends, is one of the five lawyers from the KL Legal Aid Centre who were arrested on May 7 this year for doing what lawyers do: representing, or rather, attempting to represent those in need of legal counsel. In this case, she and her (yet younger) colleagues – Fadiah Nadwa Fikri, Murnie Hidayah Anuar, Ravinder Singh Dhalliwal, Syuhaini Safwan – were responding to what, in lawyerly lingo, is called an ‘urgent arrest matter’. The short version: Fourteen people had been arrested by the police for holding a candlelight vigil outside of the Brickfields Police Station for Bersih activist, Wong Chin Huat, who had been charged for sedition. The five lawyers were kept outside the gates of the station for about an hour before a DSP Jude Pereira approached them to let them know the 14 activists had signed forms waiving their right of access to lawyers, and that he had invoked Section 28A(8) of the Criminal Procedure Code to deny an arrested person counsel under certain conditions.* When asked by the lawyers to provide the grounds for his decision, and to show them the forms, Pereira had walked away. Meanwhile, the 14 arrested persons could be heard shouting, ‘We want lawyers’. Immediately after, OCPD ACP Wan Abdul Bari bin Wan Abdul Khalid approached the gate and demanded everyone outside the gate disperse within three minutes as they were part of an illegal assembly (Section 27, Police Act). He counted to three before the gates were opened and the lawyers seized. And then the lawyers were in turn denied by the police of the right to their lawyers.
plan was hatched. It collided with the inchoateness of the 1Malaysia idea, which Bersih activist and academic Wong had adapted for his ‘1BlackMalaysia’ idea instead. Wong had suggested the wearing of black before the convening of the Perak state assembly on May 7 to protest the sheer and utter expediency of the takeover of the Perak state government and its effects on the Malaysian democratic values and due process. He was arrested (on May 5), leading to the ‘illegal assemblies’ outside the Brickfields police station (May 6 and 7) and the arrests of the 14 who had gathered in solidarity, and of the five lawyers. Even less delicate are the implications for the rule of law in this country, that concept so misunderstood by functionaries to mean largely what they can use or allow of the law to do to others that they would not to themselves. Simply put, a literalist view of the law that sees it a mere instrument of power makes a nonsense of due process because it disregards any guiding principles and values. Due process is a level-field for the public in its dealings with the state, that is entrusted by it with so much power over public life. The country’s legal system was inherited from its colonial masters, and originally designed with British colonial objectives in mind until the granting of independence. The Federal Constitution was created in a different spirit, which its provisions on fundamental civil liberties keep alive. If the Constitution is ignored, that spirit dies a slow death. The legal system remains intact, but devoid of any guiding values, it will be subverted and wielded as an instrument of power. This is why an allegiance to the Constitution, rather than any feudal idea of an overlord, is imperative for democracies to work. But is it beyond the ken of those in our national institutions to owe their allegiance to an abstraction called the rule of ONE APOCRYPHAL EXPLANATION law, rather than to a feudal figure? of chaos theory has to do with the The case of the five lawyers means that interconnectedness of all things and arrested persons can be arbitrarily denied unintended consequences – a butterfly their right to legal representation, and that flapping its wings in say, Tajikistan, creates anyone attempting to represent them risks ripples that are felt in ways weird and out arrest as well. And so it is precisely the lawof all proportion in, say, Batang Berjuntai. abiding citizen who should be concerned, (If that’s hard to swallow, think of it in notes Murnie Anuar. ‘This is not about five economics-speak, as a multiplier effect.) lawyers who got arrested, but about what The delicate flapping of wings, in the case can happen to you. We had the weight of the of the five lawyers, could have happened Bar Council behind us,’ she observes. The even as the first brainwave for a takesubsequent public spotlight on the police over of the (Pakatan Rakyat) Perak state compelled it to be more scrupulous in its government emanated from wherever the application of the law and more circumspect in ‘disappearing’ the lawyers. * The right of an arrested person to a lawyer of his or her choice is guaranteed in Section 28A(4) of the Criminal Procedure Code and Article 5(3) of the Federal Constitution. Opposite page, left to right Fadiah Nadwa Fikri, Syuhaini Safwan, Ravinder Singh Dhalliwal, Puspawati Rosman and Murnie Hidayah Anuar
BUT ARE WE too squeamish? In medieval times, it used to be that detentions and tortures were at the pleasure of an absolute ruler. The fear was as much, if not more, from not knowing what the king’s spies and
agents would do to you, and when. What more if one considers neighbouring countries: Indonesia, under Suharto, murdered at least 500,000 to 1 million of its own people between 1965 and 1966, calling them communists; Pol Pot in Cambodia did the same to 1.7 million of his people between 1975 to 1979. How many did the Burmese military government slaughter last year? Malaysia is no failed state, even if it cannot be called a modern nationstate, having nine kingdoms in its midst. In the history of brutality, this country is thankfully not yet Malaysia Boleh. Under the soft lights of the café at which we meet with the five lawyers, the experience of the lawyers evaporates in the smell of premium coffee. It seems churlish to complain when you could be feeling the ‘growth and development’. And yet, as Fadiah points out, in our comfort zones, we don’t take notice of the other worlds outside our own, and therefore sanction by ignorance, wilful or otherwise, the inhuman treatment of ‘others’ unlike ourselves. The likes of A Kugan do not find a seat here. With every sanction of a human rights violation, we dehumanise ourselves and our community bit by bit. Here, five young Malaysians speak in the language of rights lost to fearful and expedient elders, and share what’s important to them. Excerpts: What did you learn from the ‘lokap’ experience about working within the system and what the system is? Fadiah: It’s very frustrating to actually witness something right before my own eyes as to how the system works. We have all the written laws, we have all the provisions, the Federal Constitution as the highest law... But the reality is otherwise. We are denied access to our clients, and this shows that, okay, what happens to the right to legal representation? ...the very foundation of a good and a just society depends on a fair criminal justice system. All of these rights are guaranteed by the Federal Constitution and it’s the fundamental liberties as a matter of the fundamental rights of a person, for example if you get arrested, you must be accorded these rights. But on [a] daily basis even as a lawyer, a voluntary lawyer for the Legal Aid Centre, we see that these rights are being ignored and denied to ordinary citizens, every day. For example, you know that if you get arrested, you can only be held in a lock-up for 24 hours and you have to be brought before a magistrate. But we’ve got cases where some of them have to languish in lock-ups for months sometimes, because they don’t have access to lawyers. And not everyone can have access to lawyers, that is one thing for sure. But the system must uphold the rights JULY2009
of citizens who are arrested and detained in the police lock-up pending trial because it’s not only the lawyers’ duty to ensure these rights are given meaning. The police, the magistrate, the prosecution – everyone – plays a part to uphold these rights. But this is not happening, and the situation is in fact deteriorating. Daily, there are people being denied these statutory rights. Going to courts, facing these infringements regularly, it makes us think, what is happening? We supposedly live in an era of modernity where we think we have everything but we fail to observe this fundamental requirement of a civil society - miserably, I would say. You’re dealing with human beings, who have fundamental rights. For example, remand. (The police can apply to a magistrate to hold an arrested suspect in remand to facilitate investigations but are required to give reasons for doing so.) Sometimes, the magistrate just says, ‘Oh, it’s okay lah, I’ll just give you one day, two days, three days - it’s a matter of procedure.’ What ‘procedure’ are you talking about? If there is no real need to detain that person, you cannot lock him up, not even for one day. But there’s no such thing – if we argue it out in court and cite cases, principles and provisions of the law, it’s all ignored. It is always ignored, I don’t know why. I think the system has failed us in that sense. So there’s reform to be done, but I don’t understand why, when we talk about reform, everyone starts jumping, like, ‘oh no, no’ and being very defensive... I say, we want reforms! We want to have some kind of minimum standard for the protection of these rights, to actually give some kind of responsibility to the authorities to do this. It’s not going to hurt anyone if you’re really [interested] about correcting this system.
Then he had a drink in front of me. He made fun of the fact that I was forced to wear prison clothes – his exact words were, ‘Tak tahu berapa orang pakai tak cuci-cuci sampai dia pakai sekarang’ (who knows how many suspects have worn them but we’ve never washed the clothes before). Yes, he found it very amusing amongst his friends, including a female police officer... What else did he say? He made fun of lawyers whom he thought used the law only when it suited them. He said, when it comes to escaping the law, that’s when they use the law. The whole allegation made by... I think the IGP who said that, ‘the lawyers thought they are above the law.’ I think the simple bare fact is that when did we ever we say we’re above the law? When did we ever ask for any privileges that should not be accorded to us? [At no point.] We wore lock-up clothes; they (the girls) were handcuffed; at no point did we try to resist arrest; we entered inside we never asked for any special privileges; we were released just like anyone else... Then people started asking us where was I located. Until three o’ clock when we were released no one knew where I was located.
Ravinder: The guy who took my 112 statement (Section 112 of the Criminal Procedure Code, pertaining to the suspect’s cautioned statement), I don’t even know his name. This guy took my statement for two hours, I don’t know his name.
Murnie Hidayah Anuar: These are the instances which show why we need reform of the police and for an independent complaints commission to be materialised. As Fadiah said, you have to look at the criminal justice system holistically. The police, lawyer and judges, we work together. And the police play a key role in ensuring that this system can work. We now have the Judicial Appointments Commission, but we see nothing for the police. What happened to the five of us is just one example that shows to the public how serious [the breakdown in the rule of law in] Malaysia is now. If they can do that to the lawyer who’s just discharging her statutory duty, it can happen to anyone who is a Malaysian citizen, what more to the general public. This is my major concern. Ours is just one instance [of an abuse of the legal system], there are a lot of others,
Do you have a right to demand that he identifies himself? [According to S112] he has to put the name to the statement. I was hardly given a chance to read my statement. I was allowed to read it, but when you have a man there, ridiculing you for a whole hour, you’re not in any frame of mind... What kind of ridicule was this? He made fun of the fact that I was thirsty because I hadn’t had a drink inside the lockup yet, except for the how-many ounces of teh-o they gave us.
So you didn’t know where you were. I was shipped out at around three o’clock in the morning from Brickfields police station in a car at high speed, along with the reporter from Suara Keadilan, [Law Teck Hao]. We were driven to Taman Tun Dr Ismail police station, at which point all our belongings were removed and recorded. Until I was released, back in Brickfields, the next day at three o’clock, no one knew where I was. Even people who called Taman Tun (police) station was not told I was there; family members, anybody. A lot of people were looking for me. I could not be located. If I had been held any longer, they could have lodged a missing persons report.
Provenance: Born in Taiping, Perak, lived in Penang, KL. My dad was from Kedah. His father and mother were from Acheh, Indonesia. My mom was born and bred in Penang. My father was born in Penang but I believe my great grandfather was from India. Education: I received my primary education in Sekolah Kebangsaan Sungai Gelugor in Penang, a simple ‘kampung’ school in which almost 95 percent of the students are Malays. There were many instances where we were told to study hard and to follow some of these ‘anak cina’ (the term my teacher loved to use). Unfortunately, I did not end up admiring these anak-anak cina but more to envy them and trying to prove to my teacher that she was indeed wrong. Later, I was offered a place at St George’s Girls School in Pulau Tikus, Penang. That was my first time mixing with Chinese and Indians students. Amazingly, it turned out pretty well. I managed to get some non-Malay friends, sufficient to clarify some misconceptions that you had in mind before this. Unfortunately, I was in that school for only one month. My mum insisted on me going to a religious school and I obeyed: Almashoor Islamic Girls School, a good, control religious school in Penang. I honestly believe that if you think that what you are doing is right, you should be able to defend it. But of course that is not the way in my school. People do not really question things because they were afraid that by doing so, you were therefore questioning the religion. When I entered UIA, I was so lucky to have friends and my lecturers who taught me so much on how to see things in a very wide perspective. Amazingly, these people are the ones who are much different from me (or I used to think that I am much more religious or ‘baik’ than them): girls who smoked, did not wear the scarf, watched movies in cinema, went clubbing... However, they also never spoke badly about other people, forgave easily and were the first ones to help whenever you were in trouble. Although a person can be so different from you, either from a moral or religious perspective, it is just not fair to label them ‘bad’. Work experience: Amnesty International, Mercy Malaysia. I was called to the Bar early this year. The experience of getting arrested is a highlight and hopefully my motivation to fight for what is right in the future.
Age 25, born in Alor Star, Kedah, educated at Sekolah Rendah Islam Abim and Maktab Mahmud at Alor Star, then Kolej Islam Sultan Alam Shah, Klang, Selangor. Dean’s List ever-present, law graduate of the International Islamic University, Malaysia. Represented Malaysia and International Islamic University Mooting Team in the 46th Philip C. Jessup International Law Moot Court Competition
in Washington DC in 2005, where she secured second place. Called to the Bar in 2007. Honorary Secretary of the Kuala Lumpur Legal Aid Centre, committee member of Abolish ISA Movement (GMI), member of Suara Rakyat Malaysia (Suaram), volunteer Tutor of Mentari Voluntary Tuition Project. My parents decided to send me to religious school so that I could learn religion and academic subjects at the same time. They wanted diversity in their children’s education as my older sister was not sent to a religious school. My parents believe that religion is all about moderation and that the religious education that I learned from the religious schools can be shared with my other siblings and themselves. They have a considerable amount of trust in their children. They will express their opinions on certain matters, but at the end of the day, we call the shots. Provenance: Both my mother and father are from Kedah. My father works in Muda Agricultural Development Authority (MADA). My mother used to work in the same place as my father but has retired. I grew up in a moderate working class family. My paternal grandfather is Malay of Hadhramaut origin and my paternal grandmother is Malay of Siam origin. My maternal grandfather is Malay of Pattani origin and my maternal grandmother is Malay of Sumatra origin.
Age 28, attended Sekolah Rendah Kebangsaan Taman Sri Muda, Shah Alam, Sekolah Menengah Assunta, Petaling Jaya. Law graduate of the International Islamic University, Malaysia. Project Head of Legal Awareness Committee, KL Legal Aid Centre, Suaram secretariat member. Provenance: My family background is very boring, lah. Family living in USJ Subang *yawn* Father is working as project coordinator, mother passed away, father re-married etc. My late maternal grandpa and grandma... I’ve been told that they were PRM (Parti Rakyat Malaysia) members. Btw most of them are now Umno members. My late paternal grandpa was from Indonesia. I am keturunan Minang. In 1998, in Form Five, I was in the same school as Nurul Izzah (Anwar) and... I think, (Tun Dr) Mahathir’s foster daughter. We’ve saw everything happen before our eyes, all the Reformasi demonstrasi and everything. And I could see a split between even my friends and in the school. On sports day, we’d always invite Kak Wan, (Datin Seri) Wan Azizah, and also (Datin Seri Dr) Siti Hasmah. But after Reformasi, everything gone. And then when I entered UIA (International Islamic University), I started writing for Tailerag, the Tan Sri Ahmad Ibrahim Legal Research Group (which was unrecognised by the university). I had my own column about students’ rights. CONTINUES NEXT PAGE
as Puspa said, but no-one knows about them other than lawyers, though I think the government is aware of the situation. That’s why we need to have the [police] complaints commission as soon as possible.
Fadiah and Murnie
Ravinder: There’s another point. The police have discretionary powers, budi bicara; in Malaysia now it’s very, very loosely used [and] the favourite term... [It’s found in] Section 28A(8) (of the Criminal Procedure Code, which the police, on reasonable grounds, may deny a suspect access to a lawyer). I don’t deny that in life-or-death situations, the section has its uses, such as when someone’s life may be at risk. In this case, you’ve arrested five lawyers who identified themselves as lawyers from the Legal Aid Centre, and not even lawyers who have a pecuniary advantage to be there. It is eleven o’clock at night; I can think of better things to do at that hour. And they used the section against us to deny us of our right to counsel because it would ‘hinder investigations’. What possible explanation is there for the exercise of budi bicara – what investigations are we going to hinder by letting us see our counsel? There is a natural antagonism between the police force and lawyers, in general, because the lawyers are seen as the guys who represent the other side, the criminals. But in this case, there doesn’t seem even to be any sort of understanding that you’re part of a system. Fadiah: Because they fail to recognise lawyers as officers of the court. Police, the judges and the lawyers, we work together in a system, and we cannot work in isolation. They simply regard us members of the opposition. They fail to appreciate the fact that we are not only discharging these social duties but we are discharging our statutory duties as provided for under the Legal Profession Act. Ravinder: If you’re charging someone for an offence, that person has a [statutory] right to a defence; he has a right to be heard in court...
From the cases the Legal Aid Centre handles, as you mentioned, there seems to be a trend of due process being disregarded and there doesn’t seem to be anything that can be done about it. There is a system, but the system is failing because they don’t understand it... Murnie: It’s not that they don’t understand the system. They understand the system; they choose not to follow the system. It’s about mindsets. Puspawati: They’re just following instructions, but I don’t know where the instructions are coming from. Fadiah: It’s no longer a situation where if you ask, that person would actually provide you with a reasonable answer. It’s a situation where, ‘I don’t care what the answers are, I’m just following instructions.’ But are there actually instructions? Ravinder: Let me put it this way. How is the police to be accountable if in the papers the next day, the PM says, ‘I cannot look into the micro-runnings of the police,’ the IGP says, ‘Lawyers are not above the law,’ and the Home Minister says, ‘Let them sue’? The DPM says, ‘I don’t know why they’re lodging a report with Suhakam.’ Did anybody say, ‘We will check whether what the police did was right or wrong’? If you were in the OCPD’s position, why would you care when those on top give you an invisible green light [to carry on]? Fadiah: These are virtually statesanctioned actions. Murnie: That is our bigger frustration, to receive this kind of response from those above... Fadiah: It’s not about ‘saya hanya mengikut arahan’, it’s not about following instructions, it’s not about ‘not all police JULY2009
are bad, not all police are cruel’. What is it about? It’s about state-sanction. The state sanctions what is happening: deaths in custody, abuses by the police... We have had inquests conducted into deaths in custody but nothing is done, nobody is prosecuted. The A-G does not prosecute.
NORMAL, WHAT Would you all always feel this righteous about the issues of justice or do you think that there’s a point where you decide to accept it, tacitly or unconsciously... (together, resolutely, shaking heads, aghast) Nooo... Fadiah: We get frustrated at times, because it’s so sad, what is happening, sometimes before your own eyes. Puspawati: It’s a long struggle lah. Fadiah: We have to keep on going if there is to be anything good at the end of it all. Ravinder: When we (Ravinder and Suara Keadilan’s Law Teck Hao) got to Taman Tun (Dr Ismail police) station at three to four in the morning, and we were put inside the lock-up, it was still okay lah [even though] I was a little bit numb from what had happened. By 9am, you start wondering, why am I not being brought before a magistrate? Why are there no lawyers outside, who were there when we held in Brickfields? Then it starts to dawn on you that no-one knows where you are. At about 11, and I remembered it was a Friday which means you’re looking at a longer lunch hour for cops, you wonder, When are they going to produce me before a magistrate? If they do a remand hearing in the lock-up, would anyone know? How are they going to bail me out? Then you really get annoyed and think, What on earth have I done to be here? Nothing. What are they so afraid of that they would arrest five young lawyers who were there [as part of the legal process]? At that point, yeah, once you have that feeling – I’m sure all of us feel the same way – what have I done to deserve this? It’s nearly impossible for that feeling to die down.
in the [interrogation] room so that people can see what is happening in there. And they were making fun of the questions. They were not serious in actually reforming the system. I remember the last thing he said to us: ‘Lawyer ini tahu nak lawan sahaja. Ingat, kami juga nak buat kerja.’ I just want to say that we (the police and the lawyers) are both doing our jobs. You want to do your job, I want to do my job. The rules are there for the benefit of everybody [but] there is a mentality of, ‘this is ridiculous. I want to do it my way.’ There seems to be an authoritarian mentality. Exactly. In fact they have the support of the people above. So I think that it’s hard to say there’ll be improvement. Then it will be very difficult to change the nature of the relationship and reform the police. The system will do that. I think we can never change something so deeply rooted. But if there is a system, it’s okay if you don’t like me and I don’t like you; we can actually monitor what you and I do. I don’t ask you to like me. I’m asking for fairness and professionalism, so that the public benefits, not my group, or your group. We’re all just doing our part, that’s all.
Has anyone had a good experience with the police? Fadiah: A lot! (cites an example from the PPSMI demonstrations) Now suddenly, things are a bit different because they are now heavily influenced by political changes since the last general election. It’s about the projection of power and domination, because I think they realise that people are losing more confidence than ever in the political impartiality of the police. What happened to us is the result of what is happening in Perak, and the arrest of Wong Chin Huat. Before this, we would have been seen as officers of the court coming to the police station to represent any arrested persons without counsel. Ravinder: Even during the Hindraf trials, Syuhaini Safwan: It’s very sad that they the relationship was not so bad. After the (the police) consider us as their enemy when arrests at Batu Caves, we continued doing we’re supposed to work together to ensure remand hearings until two in the morning that justice is done. with the police. Now, it’s so different. I remember when I was in my last year Fadiah: Now, they arrest you even if of studies; for my Criminal Procedure they have no grounds to charge you for Code, we were supposed to interview the an offence, just to detain you. If we have OCPD of Dang Wangi, I think his name was violated the law, charge us in court. I see it Zulkarnain. There was a big, big table, all the as an act of intimidation. officers were there. Murnie: It’s a clear misuse of power. What And then we we asked him a few amounts to a ‘reasonable belief’ that justifies questions. At that time, the [Dzaiddin denying someone access to legal aid counsel? Commission was enquiring into the need for We weren’t told, in our case maybe because the IPCMC]. So we asked a few questions, they couldn’t come up with an answer. But such as on whether there is a need for CCTV again, there’s been no action taken against
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Education: Sekolah Menengah Tg Panglima Perang Tg Muhammad, Kuantan, Pahang, International Islamic University Malaysia (2004-2007), JPA scholar, champion mooter (like Fadiah). Both my parents were lecturers before my mother retired as a school principal and my father joined the Ministry of Education. I was brought up in a sheltered environment. I attended different schools along the way, including religious school, when I was in Forms 1 and 2. My interest in law and issues of justice system and human rights started during the Reformasi period in 1998, when I was still in secondary school. So after SPM, I determined for myself to read law and to become a lawyer. I’m in my first year of practice. I was attached to Tenaganita for the Legal Aid programme which was an eye opener about where our country stands in issues relating to migrants, refugees and human rights, and how our [legal] system works. To my surprise, I went for the ‘Advanced Training’ conducted by the Legal Aid Centre and became part of the legal aid team.
Education: Sekolah Sri Inai, Methodist College, University of Wales, Aberystwyth); BVC, Bar (University of the West Of England, Bristol, UWE), Certificate of Practice in General Insurance (I was 16 when I qualified). Chairman, Kuala Lumpur Legal Aid Centre. Provenance: I come from a through and through Punjabi family, an only grandson. To my paternal grandfather that was very important. My dad works as a credit recovery agent (own business) and my mother is a property negotiator. My maternal grandfather was born in Malaysia, but his wife came from India. He was a money lender, taxi driver and a man who did virtually anything to keep his family afloat; a very strict man. He had 10 children. He migrated to Canada in the early 1980s with the children who were not married. I was fortunate to have known him. My paternal grandfather was from Ipoh, and my paternal grandmother, from Kuching. I’ve never been there and thus don’t really know much about her hometown. Key experiences: After Form 5 I worked with my dad doing debt collection for banks and finance companies. There was NO beating or swearing at anyone. After eight months, I enrolled with Methodist College in Brickfields. I insisted to go to a proper ‘red brick’ university in my final year as it was my one and only chance in England/UK. I chose to go to the University of Wales, Aberystwyth (now as Aberystwyth University). The same current Inspector-General of Police, Home Minister and President of the Malaysian Bar all attended the same uni. How ironic?
I worked for a Bangladeshi boss for a while, and was paid below minimum wage. Abroad, I experienced racism for the first time. I did not see it done to someone else, I faced it! In Aberystwyth, I used to work in this Bangladeshi Restaurant and while everyone was partying on a Saturday night, I used to work until 12 or 1am, then pack back some delicious Indian cooking which was a god-send at the time (no Punjabi mother’s cooking for thousands of miles!) While leaving work one day in my shirt and tie, carrying my dinner, two white boys tried to get into a scrap with me. I distinctly remember both of them saying, Go home! Go back to where you came from! [Outnumbered] I had to turn the other way and leave. It made me so angry that you had to just accept it. This happened to me three times in the UK. To be honest, this was probably what finally made me realise what foreigners in Malaysia must go through with the police, what refugees face on a weekly, if not daily, basis. It takes character and determination to face it and move on. Mentors who continue to influence me are people like Mr Rajen Devaraj (with the Bar Council now), Ms Stephanie Bastian (the executive director of the Legal Aid centre), and all my friends at the Legal Aid Centre and Bar Council. Stephanie thought me at A-levels. Both Rajen and Stephanie were arrested during the Reformasi period and both were lecturing in Methodist College at the time. It was the first time I had ever heard of such a thing so close to home. And wouldn’t you know it, some ten years later, I see them again.
them by the government. We all keep talking about reforming and regain public trust...
So what do you see for your profession in the future? Do you see any hope for systemic reform, how things might change so we might move forward? Fadiah: I believe that if the government is given the mandate to rule by the people, the people themselves will do something to actually remove the mandate. Only the people can decide ... What we can do as lawyers and citizens is to educate the public about their rights. We cannot change the police because they can just, you know, put us in the lock-up... Puspawati: Frankly speaking, I see no hope for the older generation. We should start with educating the younger generation to raise their awareness of issues of justice and human rights. So, no hope for the older generation because they are too used to the old ways... (together) Yes. Ravinder: And because we have people who are arrested when they talk about politics. When I try to talk to my mum about politics, she says to me, like a typical Asian parent, ‘That’s not my son.’ The day after we were released, I said to her, You thought all this while it was impossible that such things would happen to you and your family, until this has come into the heart of your home, and arrests your only son and puts you in a
But now I come to the relationship between the Bar Council and other institutions like the police, UIA, Pembela... The Bar has been accused of many things. Ravinder: A public official said that the Bar Council was predominantly made up of all... Fadiah: Indians. Ravinder: And that the Bar Council is racist. This fellow’s amazing. Four Malay girls and one Punjabi guy are arrested, and the Bar Council is racist. Puspawati: And our clients... Murnie: Are Chinese! Ravinder: The Bar Council with NYLC Malaysia actually released a statement: We have 19 percent Indians, excluding Punjabis. Together with Punjabis, it’s something like 23 percent. We’re actually made up of predominantly Malays. So these kind of people who [hold office], who’s a very highly [elected] figure, telling us, ‘Bar Council is racist.’ (The Malaysian Bar is made up of more than 12,600 lawyers from the Peninsula. About 39 percent are Malays, 36 percent Chinese, 23 percent Indians and 1-2 percent, other ethnic groups. By comparison, with say, the police force, of which the ethnic composition is 78 percent Malay, 4 percent Indian, 2.5 percent Chinese, and 15 percent other ethnic groups. Source: Malaysian Bar, Centre for Public Policy Studies) As young Malay-Muslim women, you obviously don’t feel like you’re working for the other side. Murnie: We’re young Malaysians. With the Bar Council perceived as being antiIslam, anti-Malay, do you get flak for that? Fadiah: This happened back during the conference on conversion conference (in 2008, organised by the Bar Council, disrupted by Umno protestors) which I couldn’t attend. People kept calling me and my friends were asking, ‘Please tell me what’s really going on.’ They didn’t jump to conclusions, [despite] the mainstream newspapers. Then they said, this has been blown out of proportion. You have the jurisdiction of the syariah court, and the civil court, and we have cases of conversion, so what happens to the wife and the kids? Don’t you think it’s Islamic to discuss it because they are affected? Don’t you think that justice in Islam also encompasses these people? They might not be Muslims but still, you have the duty to protect them. We might not agree on everything but we can sit down at the same table as civil people and discuss it. Murnie: And this is what is lacking in our country, the readiness to sit down for discussion. Fadiah: If you believe that you’re doing the right thing, and that right thing is for the benefit of the public, there must be a way for us to discuss it. Do you need to agitate for support and attack the other party? Puspawati: Some people have told us what we did that night is part of fardhu kifayah. Fadiah: Fardhu kifayah (in the Quran) essentially means that an act becomes mandatory upon the failure of other people to do it. For example, if someone is being oppressed, and no-one is
doing something about it, it becomes mandatory for a you to do so, failing which you will commit a grave sin. So it is a religious obligation, it is imperative upon us as Muslims to strive for human rights; and if someone arrested is denied their right to counsel. Murnie: By just conducting interfaith dialogue, the Bar Council is anti-Islam? You have to understand that we stay in Malaysia, where Malays, Chinese, Indians and more are actually Malaysians. Non-Muslims might like to understand Islam and Islamic law too [and viceversa]. Can you address issues of religion legally or by using concepts of human rights? Perhaps you can the legal means for a resolution of a problem but are unable to pronounce judgments on people’s beliefs. Murnie: In Islam, it’s Allah’s rights that come first before human rights. So there may be a difference between the concept of human rights in Islam and liberal concepts of human rights because we have Allah above humans. But to say that you cannot engage others in discussion on human rights is not true. There is a question of labels as well. The term ‘human rights’ comes with Western baggage. Fadiah: It is very misleading to segregate rights as ‘Western’ or ‘Islamic’ Take the CPC (Criminal Procedure Code), for example. I cannot find in the Quran the part where you are entitled to make a phone call when you are arrested, or even in the Hadith. Does that mean that right is unIslamic? It’s very sad when people talk about religion day in, day out but don’t understand it. The very basis of religion is something that is protective of the interests of the people. It is Islam. Murnie: It’s the concept of what is just [which encompasses human rights]. It’s not true that there is no such thing as human rights in Islam. Fadiah: The moment you are born, you have every right that can only be taken away by God. You have the right to life, to liberty by the very creation of your being. So I don’t understand why people preach, ‘Human rights tak Islamic.’ That is so misleading of the religion. I’m a committee member of GMI (Gabungan Mansuh ISA) and we challenged Pewaris (a proUmno interest group) for saying that ‘We’re representing Islam, and the ISA is halal.’ Murnie: Again, they use Islam... Fadiah: We challenged them to a debate. They didn’t turn up. So we told them we have traditions of the Prophet that say, it is better to release some one who is actually guilty if you cannot prove that he’s guilty. So if he’s suspected of a crime, but you cannot prove it, it’s your religious obligation to release him. That’s the bedrock of the Western criminal justice system. Fadiah: Yes, and nobody even bothers to actually find out about such matters. The level of the Hadith is sahih, which means, the most authentic. It’s authoritative. The hukum is wajib; you’re obliged to follow it ...
It’s sad universities sees this incident as us being used by people. Are we that mentally-challenged to not be able to make our own decisions, you know. You know, they are accusing us of so many things Ravinder: I’m not from UIA. (laughter)
What is the reaction from your families to what’s happened? Ravinder: For them it’s difficult to accept it. It’s of course the old fear of government authority, that you’ll compromise your future [livelihood] for a cause. There’s always this fear of... Fadiah: What ‘they’ might do to you. Ravinder: Or how ‘they’ will make your life difficult [if you try to change things]. That’s what the older generation believes. Murnie: The police actually said to us that we had been ‘blacklisted’.
position of fear for 14 hours, gets the whole family running helter-skelter. Now you know what it feels like. Suddenly you realise, the system can affect anyone’s life at any time. Puspawati: For example, my father. He always thinks that there must be a good reason behind all the government’s policies. So: ‘Ayah, harga minyak dah naik.’ ‘Takpe, mungkin sebab ekonomi dah jatuh, jadi dia naikkan harga minyak untuk balancekan yang everything else.’ ‘Ayah, kenapa interest PTPTN dah tinggi sangat? Dah naik 4 percent.’ ‘Yalah, sebab bukannya semua orang bayar.’ Fadiah: We’re too complacent living in our comfort zone. I want to know what’s going on with my money, with the taxpayers’ money, for example. Freedom of information. We don’t have it. I want to know what’s happening to Petronas, I want to know. I want to have the full report – give it to me. But older people, older generations, they won’t ask for it because, yeah maybe... they can go to work, live a normal life... Murnie: You see, while we have the Judicial Appointments Commission after the Lingam case, but what sort of improvement that we can do by having this judicial commission because at the end of the day it is the prime minister who has the prerogative. Fadiah: Yeah. You have – yeah – you have an inquiry for Lingam’s tape, but you don’t prosecute. At the end of the day it goes back to the A-G. He’s the most powerful man in the— Murnie: In every aspect. The system, the people inside it, the education system, it’s all inter-related and intertwined, not [treated] in isolation, of course. So when you’re talking about Malaysia as a whole and how we go forward from today, a lot needs to be done to improve because you know, we’ve been in this situation for, what, 50odd years. So it’s a challenge for the younger generation – us for instance – to actually make change in this country.
Fadiah: And it’s kind of terrifying to actually know that, for example, if our country does something that is internationally wrong for example, if they do something for example, trafficking in persons, we can use that point to actually lobby at the international arena, you know we need those courts, those human rights courts, the UN – look what our country is doing, say something so we can change something in our country. But now, they don’t care. We just got listed as the world’s most unfriendliest place for refugees and one of the top [countries] for trafficking in persons and that day they arrested refugees during the celebration of Aung San Suu Kyi’s birthday. They don’t care what the world thinks about us. No shame at all. I think it’s scary. Puspawati: And Suhakam now cannot vote (at the UN Human Rights Council). Syuhaini: And here, you get condemned for what you’re trying to do. We just got to know that the law faculty at UIA (Universiti Islam Antarabangsa or International Islamic University) put up some articles and notices on the board saying that we were used by some people, by getting arrested.
There’s a blacklist of lawyers? Fadiah: After they took down our statements, we had to laugh about it because this whole episode was ridiculous. So they kept asking, ‘Tak takut ke? Tak takut ke muda-muda buat macam ni? Kenapa buat macam ni? Tak takut ke?’ The ‘takut, takut, takut’ thing. Kenapa nak takut? Why? Because we’re doing the right thing.
This whole fear thing is quite strange, because on the face of it, we’re here now in what seems to be a civil environment. You can sit down and have nice cakes and coffee... Puspawati: If you asked me ten years ago, yeah, maybe I was quite takut of the police lah. But now I’ve lost all my respect for them, [so] sudah tak takut dah (I’m not afraid anymore). Fadiah: It’s failing (this culture of fear). Ravinder: If they keep doing it this, they will lose respect, all from their own actions. Murnie: That’s why I say our arrests were actually a blessing in disguise because we actually experienced for ourselves what our clients go through when they get arrested. Ravinder: And tell people. Tell people Are you guys typical of UIA graduates who want to right the wrongs they see? exactly what goes on. Because if you don’t believe somebody who was caught on (the girls): Not really. suspicion of theft, if you don’t believe them, Murnie: But we’re not radical, are we? we can tell you what really goes on. (laughs) I will admit that before this, I was a lot Puspawati: Don’t look at me! like everyone else, so to speak. In the middle Fadiah: But back in uni, we weren’t that of legal aid duty, you start to realise that you active. We didn’t join student bodies and cannot look at what the government is doing all that. It was like, ‘I don’t care, you guys and say, ‘It’s nothing to do with me.’ are all politicking.’ But I started to have this I now cannot look at breaches of human revelation in my third year [when] I joined the Philip C Jessup Mooting Competition. We rights in any other country and say, ‘nothing to do with me.’ had to study public international law when I was in my third year. (eyes light up) I became familiar with human rights and developed an Additional reporting by Marc Jitab interest. It was like, wow! Human rights and COMMENTS email@example.com all that, [chief] justice, you know.