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