FIC was never legal anyway

Now that Najib has announced the disbanding of the Foreign Investment Committee (FIC), and the ending of the FIC Guidelines, I’m sure many of us have our personal thoughts on the issue.

Some may think that the doing away of the 30% bumiputera requirement is a good thing; others may think its replacement with requirement of 50% stake of public offering in listing companies makes the whole exercise redundant and superfluous.

However, I’m not going to touch on those issues. I want to highlight some revelations on the FIC which I think most Malaysian knows not of.

The FIC was set up on 20th February 1974 to promote and protect the New Economic Policy that has just been implemented then.

The FIC comes under the auspices of the Economic Planning Unit (EPU). The EPU itself is not a ministry or government department – but as the namesake suggests – it is the economic planning unit of the Prime Minister’s Department. Over the years, this subsection has become increasingly powerful, overshadowing even that of other Ministries. In fact, some Ministries have become indirectly subservient to the EPU, waiting for directions before implementing or embarking on any governmental projects.

The FIC is merely a committee – albeit a powerful one – consisting of senior civil servants led by the Director-General of the EPU.

The FIC has – over the years – issued many guidelines, commonly known as the FIC Guidelines, to regulate and coordinate matters on foreign investment, acquisition of assets or interest, mergers and takeovers of companies and businesses by both local and foreign investors.

Once the FIC Guidelines is imposed to a particular transaction, the parties would have to apply to FIC for approval. The FIC will then impose conditions for approval. The conditions include: –
• for companies with less than 30% Bumiputera equity, to increase the Bumiputera equity to at least 30%;
• for companies with more than 30% Bumiputera equity but less than 50%, to maintain the Bumiputera equity at least at 30%;
• for companies with more than 51% Bumiputera equity, to maintain the Bumiputera equity at least at 50%;

What we need to understand is this – the FIC is not a proper ministry or body set up under the law. It is merely a committee. It is, to put it crudely, a working group; or at most, a board, with no real executive powers given in law.

Consequently, the FIC Guidelines also do not have force of law. It is not an Act of Parliament. It is not a law or by-law. It is merely a guideline, or garispanduan. None of us need to follow it.

This issue has been taken up in the courts. In the case of Ho Kok Cheong Sdn Bhd & Anor v Lim Kay Tiong & Ors (1979) 2 MLJ 224, the High Court confirmed that the FIC Guidelines have no force of law. The judge, Justice Wan Hamzah said: –

“The guidelines were issued not pursuant to any power given by law, and in my opinion they have no force of law but are of advisory character merely. I do not think that non-compliance with the guidelines can be taken as an act opposed to public policy. The guidelines reflect the government’s political policy but government’s political policy is not public policy.”

In a later case of Malaysia Overseas Investment Corporation Sdn Bhd v Sri Segambut Supermarket Sdn Bhd (1986) 2 MLJ 383, the High Court again re-affirmed its stand on the FIC Guidelines when Justice Siti Norma Yaacob held that the guidelines have: –

“… no force of law but of advisory character only and non-compliance whatsoever will have no effect as to the legality or otherwise of the contract.”

If the FIC Guidelines have no force of law, what happens if we don’t comply with it? The answer is nothing.

In the case of Thong Foo Ching & Ors v Shigenori Ono (1998) 4 MLJ 585, the Court of Appeal held that non-compliance of the FIC Guidelines would have no effect on the parties and the transaction. Justice Siti Norma Yaacob, now sitting in the Court of Appeal, explained the court’s decision as follows: –

“A reading of the guidelines shows that there is no penalty imposed for non-compliance of any of their provisions. From the nature of the document itself and its purpose to eradicate poverty by restructuring the Malaysian society so as to correct any racial economic imbalance, at most I would say the guidelines impose a moral obligation only on those affected to comply with their provisions.”

So, in the midst of all the hullaballoo of the end of the FIC and the de-regularisation of the Guidelines, let us pause to think of all the Malaysians that have been hoodwinked into complying with a 30% equity requirement that was never valid or legal in the first place.

Complexities of Construction Liability

Days after the collapse of the Jaya Supermarket and the Sultan Mizan Zainal Abidin Stadium in Terengganu, the lay-blame game begins. In the case of the Jaya Supermarket, the Petaling Jaya City Council hastily declared that the architect in charge of the demolition is solely responsible under the local by-laws. Similarly, in the case of the Terengganu Stadium, fingers were quickly pointed at the PWD, the architects and the contractor. And all these happened even before any probe or a commission of inquiry was established to investigate the cause of the collapse. This only shows the mentality of the authorities in understanding issues on construction liability.

It is always a complex issue when a building collapses. It is difficult to ascertain liability. First of all, we have to find out the cause of the collapse. That itself is a near-impossible task. For example, if a house is found to have cracks on its wall, then the owner should appoint consultants or experts to inspect the cracks. The consultants or experts may produce a report that the house owner may rely on to decide on the next course of action. But if the house collapses before an inspection is undertaken, then it will no longer be possible to check on anything as the whole structure has fallen to debris. There is no more evidence to rely or inspect upon. The cause of the collapse will only be a guessing game.

In the case of the Highland Tower collapse in 11 December 1993, the owners of Block 2 and 3 (the unaffected units) sued for damages. The court had to ascertain the cause of the collapse. To help the court decide, two top personalities in the field of geo-technological engineering in the world were asked to give their views. Both came up with conflicting reports. In the end, the court had to choose between one to another. Even the top experts cannot agree as to the cause of the landslide. Based on the conflicting theories, it is safe to say that the cause of the Highland Tower landslide will never be accurately known.

There is also another problem arising in this area. In cases of latent defects, the damage takes place underground in the foundations or inside the walls so at the time of its occurrence it is unknown and undiscoverable. The damage caused by the defective work may not become apparent even until the completion of the project and its untimely collapse.

In the event we are able to conclude – against the odds – on the exact cause of a collapse, we now have to connect the cause of the collapse to the responsible party. This is not going to be easy. There are many parties involved in the construction of a building. There is the owner – the one who commissions for the construction of the building. The owner will appoint an architect to design the building.

Once the design has been drawn out, other professionals such as engineers and quantity surveyors will be appointed to conduct engineering and surveying work. It is also common for project managers to be hired to oversee the project. All the necessary building approvals in respect of the construction will be made to the authorities. Tenders will then be given to appoint builders or contractors to construct the building. In big projects, a main contractor will be appointed. The main contractor will then appoint sub-contractors – some of them specialist in their own field – to do part of the job. Lastly, there are suppliers who supply the building materials to the contractors.

With so many parties involved, we have to carefully link the cause of a building collapse to the correct responsible part. For example, if the cause were due to negligent design, then the architect would be liable. Similarly, the architect can also be liable for negligent certification, negligent supervision and negligent inspection. A project manager can also be liable for supervision and inspection if they are so appointed for the task and fail to act reasonably. If the cause is due to negligent construction or negligent workmanship, then the main-contractor or the sub-contractor may be liable. If it is negligent approval, then the authorities may be liable. Suppliers may be liable if inferior materials are being supplied.

However, liability of a party is never clear-cut. If a builder is expressly instructed by the owner to use inferior materials, and the builder in such a case have expressly advice against the use of such materials, can the builder then expressly disclaim liability and responsibility by contract to the owner? Similarly, whether a particular problem was caused by inadequate supervision would be influenced directly by the amount of resources the architect was required to deploy on supervision. Unlike design, supervision costs are entirely time and labour related. It is largely for the client and the consultant to negotiate and decide how much resource should be applied to secure supervisory functions beyond the minimum required.

Construction liability is additionally made more difficult by the defence of Act of God. This is a defence readily employed in cases of landslides. Act of God has been described where an escape occurred through natural causes and without human intervention in circumstances that no human foresight can provide against and of which human prudence is not bound to recognize. Lightings, earthquakes, cloudburst and tornadoes may amount to an Act of God.

Once we are able to ascertain the cause of a collapse and correctly linking it to the responsible party or parties, we then have to consider the type of liabilities attracting the careless act. Liability can be three types: – contract, tort and statute. A construction project is managed by an intricate web of contracts to define their relative rights and responsibilities. An owner may have signed a contract with the main-contractor but not with the sub-contractors or suppliers. The architect or engineer has no contract with the contractor. Where there is no contract, parties may then rely on the law of negligence to impose tort duties to cut across contractual lines. A party may also be additionally liable under a statute, such as the Occupational Safety and Health Act 1994.

With such a complex area to grapple and understand, the government should take other pro-active steps to avoid future disasters. The passing of the Construction Industry Development Board Act 1994 and the Occupational Safety and Health Act 1994 is a good move. But it is not good enough. Perhaps we can take a cue from neighbouring Singapore. In 1987, the Hotel New World collapsed. It is the first ever collapse of a building in Singapore. Following the recommendations of the Report of the Inquiry and the Report of the Select Committee on the Building Control Bill (Bill No. 3/88), the Building Control Act 1989 was enacted.

The Singapore Building Control Act 1989 introduced several new measures to regulate the construction industry. In regulating the design and supervision of a construction building, a developer must appoint an Accredited Checker, whose main duties are to evaluate, analyze and review the structural design in the plans of any building works and perform such original calculations with a view to determining the adequacy of the key structural elements of the building to be erected or affected by the building works carried out in accordance with those plans. The Accredited Checker must be independent in that he must have no professional or financial interest in the building works.

Apart there from, the Building Control Act also regulates workmanship and materials by empowering the Minister to make regulations on the suitability and use of materials and components. Any building regulations may adopt any code, standard, rule, specification or provision which is recommended, issued or adopted by the Productivity and Standards Board of Singapore or the British Standards Institution. In the later Building and Construction Authority Act passed in 1999, the Singapore’s Building and Construction Authority has been empowered to prescribe standards for the construction industry in relation to design, processes, construction techniques, products and materials.

Singapore’s Building Control Act 1990 also provides for periodical inspection of buildings by an independent structural engineer. The appointed structural engineer must carry out the inspection, prepare, sign and deliver a copy of the report to the Building Authority. If the report contains any measure or other recommendations to be carried out to ensure the structural stability or integrity of the building, the owner must carry out the same within the period as may be specified by the Building Authority. The Building Authority may, if it appears that a building is in such a condition as to be likely to be dangerous, order the owner to carry out or cause to be carried out such inspection of the building as he may specify and/or to execute such building works as may be necessary to obviate the danger and/or to demolish the building or any part thereof. Alternatively, the Building Authority may order the closure of the building.

In summary, we are able to see and appreciate that construction liability is a complex issue. Finding a cause of a collapse of a building is never easy. For most of the time it will be a guessing game or a process of elimination. With so many parties involved in a constructions project, it will also be difficult to ascertain who is liable for what. With so many uncertainties and issues at hand, it is best for the Government to take pro-active steps to better regulate the construction industry. The developments in Singapore would be a good starting point for us to compare and emulate. The current existing laws that we have may not be adequate and may need to be improved on.

Coretan buat Kak Min…

Sayang sekali Kak Min; semuanya sudah berakhir
Kak Min patut tahu: kemenangan memanglah mustahil
Terkilan aku melihat keputusan pilihanraya kat TV
Sayang sekali, Kak Min sudah kalah teruk di Penanti.

Kesian juga bila tengok jumlah undi yang Kak Min dapat
Tiga ratus lebih saja, mengikut keputusan muktamad
Yang si Mansor Othman tu dapat enam ribu lebih
Malu-lah Kak Min, nak menang pencabar Siam pun tak boleh.

Taktik-taktik kotor Kak Min ni memang tidak menjadi 
Tuduhan-tuduhan rasuah Kak Min pun tidak membawa apa-apa publisiti
Hari-hari Kak Min keluar TV tumpang glamour tak membawa kesan
Hari-hari rakyat tengok kelakar Kak Min pun naik bosan.

Hang rasa mungkin Kak Min buat cara salah
Kak Min hantar rakaman cakera padat bagi kat SPR buat apa?
Kalau memang Kak Min nak tunjuk kat kita yang PKR sogok bayaran
Letak saja dalam Youtube; rakyat-jelata boleh terus buat penilaian. 

Sekarang ni Kak Min dah tak ada kerja nak buat apa?
Tak kan-lah Kak Min bercadang nak menganggur sepenuh masa?
Saya cadang Kak Min apply jadi detektif Umno tangkap gambar rasuah
Mana tahu, lusa kelak Kak Min mungkin boleh jadi usahawan yang berjaya.

Let’s give a thought to the unfortunate in these trying times

These are truly trying times, especially with the economic downturn, coupled with deadly flu infection worldwide. Business is down. People are losing their jobs everywhere. To make matters worse, some are weighted down with further troubles, over and above their existing problems.

Take this man for example – Shahidan Kassim. He used to have a comfy job. He was the Menteri Besar of Perlis, from 1995 till 2008. The job came with a secure position, lots of clout, a decent salary and lots of perks. Shahidan has an official car with a driver, an official house with lots of other “official what-not”. It is a job better that a CEO of a multinational company.

But all good things must come to an end. Or to put it another way – in these trying times, one can fall from grace. This was what Shahidan had to go through. He fell with a loud thud. He lost his job.

Though now in his wilderness, a man would still do what a man has to do to feed his family. That was what Shahidan did. Instead of complaining bitterly about his hard luck, he quickly set out to look for another job. But for Shahidan’s case, he was a tad bit lucky. He was the president of the Perlis Football Association. So, he decided to devote his time and effort to being a good and full-time president of the PFA.

But as luck would have it, the PFA has fallen on hard times as well. No grants were channelled to the PFA. Their football stars were not paid their salary. The players sold their cars and cycled 25 miles to the stadium to play matches on empty stomachs. A benevolent Shahidan would see none of this. Although himself on hard times, he took it upon himself to pay the players salary from his own pockets. He claims to be now pokai because he has to spend up to RM200, 000 a month.

When Shahidan’s cash withered away, he carried on to help his players. He sought funds elsewhere. In the local Kosmo daily, he was reported to have said, “”Sekarang saya terpaksa berhutang untuk tanggung PFA, saya sudah keluarkan wang simpanan dan kini saya betul-betul ‘kering’ dan kena berhutang lagi untuk bayar gaji mereka (pemain dan pegawai). Saya menanggung PFA lebih daripada saya menjaga keluarga saya. Akibat tidak cukup wang untuk sara persatuan ini dengan ah long pun saya dah kena pinjam sekarang.”   

Poor Shahidan! He has already lost his job, he has lost his money and now he owes the Ah Long!

We Malaysians do hate the Ah Longs. Why are they messing up the lives of good hardworking Malaysians? What can we do to stop the Ah Long menace? Will they take over the Perlis Football Association and turn it into Ah Long United FC and turn it into a world class club? 

I strongly urge Michael Chong and the government to step in to help honest hardworking Malaysians like Shahidan Kassim (who have contributed so much and ask nothing in return) to combat hard times and to eradicate the Ah Long social ill once and for all. Please give Shahidan the chance that he deserves.

Let’s take a cue from the British Monarchs

Catherine Masters is a nice old lady from Oxfordshire, England. Age 109, she is a grand old dame. Like all British centenarians, she receives a royal birthday card from the Queen. She got a card when she turned 100 and another when she turned 105, and every year thereafter.

But like most elderly ladies, Miss Masters can be a little picky. She wasn’t too happy about the birthday card. It has the identical picture year in year out – with the same image of Queen Elizabeth II, in the exact pose, and in the same yellow dress.

Perhaps Miss Masters was bored receiving the same type of card every year. Perhaps she felt it was impersonal. Perhaps she didn’t like the yellow dress. Whatever it was, she was inspired to write to the Queen to express her displeasure – which she did.

The letter reached Queen E. Did the Queen feel slighted? Did she feel upset, offended?

Hardly, in fact the Queen send her grandson, Prince William to apologise personally to Catherine Masters. Prince William visited Miss Masters at her nursing home and they both had afternoon tea. Not only did the Prince apologised, he assured Miss Masters that he will see to it that the image in the congratulatory card will be changed in time for Catherine Masters’ 110^th birthday.

Following that, Catherine Masters have also been invited to a garden party with the Queen at Buckingham Palace in July.

Now, isn’t that something!

What do we Malaysians get from our monarchs?

For the people in Perak – they don’t need any birthday cards. They don’t need any congratulatory notes. And I don’t think they yearn for Raja Nazrin to have afternoon tea with them.  

They just want their right to choose their own government. Is that too much to ask?

Malaysia’s Week of Anarchy

When the three Pakatan assemblymen “defected” to Barisan Nasional in February 2009, the Sultan of Perak had two choices at hand: – either to dissolve the state assembly or to hand power to the BN. The Sultan opted for the latter; dismissing Mohd Nizar Jamaluddin, which caused the fall of the Pakatan government in Perak.

Why he did this, no one knows. Some argued that the Sultan was merely exercising his discretion. Others say that he has no right to do so – as the state constitution does not empower the Sultan to dismiss a Menteri Besar. One line of contention says that the Sultan did not agree to dissolution as this would involve a state election, which curtails a lot of cost and expense.

If economic issues are the deriding factors, then the Sultan is resolving the issue at the expense of democracy. There can never be a price tag placed on democracy. Policy reasons – such as time, costs, expense, convenience and even legal technicalities – cannot be used as a trade-off to democracy and justice. That is why we have paid dearly for it. As a trade-off to democracy, we now have a week of anarchy, lawlessness, chaos and disorder.

IMAGINE THIS – Bersih’s representative Wong Chin Huat was arrested for urging the public to wear black as a sign of protest of the Perak state government takeover. Just when is it an offence to protest against something? Protesting was never an offence.

There are many types of protest – there are many ways to protest – and there are many causes to protest. I can protest against violence to whales; against the use of fur coats; or against bank interest. It is not an offence to protest. The only offence is the mode of protest. If I run naked across Dataran Merdeka to protest against the whales – then I should rightly be charged – for indecent exposure.

But Wong Chin Huat’s case is beyond reasoning and logic. Just by telling people to wear black is now an offence? What next? What if I hold a press conference asking people not to eat sharks’ fin during wedding dinners? Am I going to be arrested as well? What about those blokes who asked people to protest against the Zionist regime by not buying goods manufactured by the west? Why were they not arrested?

AND IMAGINE THIS – persons getting arrested for actually wearing black. Colour coordination is now a criminal offence in Malaysia; and black is definitely not in. In the good old days – not wearing clothes in public is an offence – today wearing clothes is an offence. What next? Can I be arrested if I wear a Save the Whale protest t-shirt? What kind of law is this?

AND IMAGINE THIS – five lawyers from the KL Legal Aid Centre were similarly arrested when they went to the Brickfields Police Station to represent those arrested earlier. On what grounds were the lawyers arrested? Isn’t legal representation central to the rule of law? The Criminal Procedure Code guarantees access to lawyers. One has a constitutional right to legal representation. But no sir, Malaysia is now a state of anarchism. Not only one is denied lawyers, the lawyers are also arrested.

AND IMAGINE THIS – scenes of scuffle and mayhem in the State Legislative Assembly; and the State Speaker being replaced, not by proper means, but by physically and brutishly manhandled and carried away. Is this what we call law and democracy? The BN government has aptly described the incident as jungle law; and I can’t help agreeing to it. What else can you call the power-grab debacle – when all else fails, brute force is all that is required to overthrow the government.

What next? Why not physically throw out a judge when a ruling is not in one’s favour? The law of the jungle prevails anyway. The moment the High Court Judge declares Nizar the lawful Menteri Besar, just shut down the microphone; immediately have a load of unnamed personnel (not court officials) swarms around the judge before carrying him / her away; and replacing with a “friendly” judge to give a decision?

THIS, MY DEAR FRIENDS – is the things that we saw during Malaysia’s week of anarchy. There will be no price tag in substitution of democracy – to do so will cost us dearly – and Malaysia have dearly paid the price for it this week.

The Hero of Malaysia – V Sivakumar

Dear Mr. Speaker,

We, the Dandelions salute you. You are the hero – You da’ man – Jantan Tulen.

Just when we – the citizens of Malaysia – thought there is no one else worthy in the realm of politics, you prove to us that a Malaysian can be a hero. Better than any Rajnikanth … ever.

You have shown great courage – standing alone in battle – against the mighty combined forces of the Federal Government, the Monarchy and the Police.

You did not step aside – you did not budge – you did not waver. I had expected you to falter. After all, any ordinary man would.

But you held on, demonstrating nerves of steel.

And held on you did – from morning till three in the afternoon – before you were physically removed from the speaker’s chair.

Had you not been so roughly and bodily manhandled, I bet you can stay in that chair till all others drop dead from no water, starvation or sheer exhaustion.

I come to understand that you were mildly injured during the scuffle. Worry not, for you shall wear those physical scars proudly as your crowning glory for the people of Malaysia.

You are someone that our soldiers should emulate. Fight on – hold post – and never say die. They should erect a statue of you in every markas tentera, to instil on our young tentera’s heart the qualities of courage, bravery and valour.

I bow to you, dear sir, for you richly deserve my praise.

Thank you, dear sir. God bless.

1 Malaysia: Unity in Diversity; as opposed to Unity in Uniformity

Whilst Mahathir has his Bersih, Cekap dan Amanah concept, Pak Lah with his Work With Me, Not For Me; Najib has since conceptualised his 1 Malaysia model- a yet to be fully-explained slogan backing his governmental administration.

In his website – aptly called www.1malaysia.com.my – Najib indicates that there will be 8 Values of the 1 Malaysia. So far, he has unveiled 4 of the values: – Culture of Excellence, Perseverance, Humility and Acceptance. And thus far, he has riddled us with more convoluting and meandering explanations that are, quite frankly, unfathomable.

First of all – let us understand – the 1 Malaysia is a concept. It is simply a slogan. To put it even more plainly, it is a motto – a meaningless axiomatic dictum of words that carries no weight of law.

Secondly – and as many would want to believe – it is not about One Malaysian, where all Malaysians stands as one in equality. A concept of equality of such a nature would go against the spirit of the Federal Constitution – namely Article 153 – which safeguards the special position of the Malays and natives of Sabah and Sarawak. It would also go against the New Economic Policy.

Hence, if the 1 Malaysia is not about equality of races, then what is it about?

Professor Datuk Dr Shamsul Amri Baharuddin, from Universiti Kebangsaan Malaysia’s Institute of Ethnic Studies, drew an uneasy distinction with the concept of “Malaysian Malaysia”, promulgated by the PAP of Singapore, and later the DAP.

The Malaysian Malaysia – he says – is an ideology that espouses all ethnic group having equal rights with none having special rights. The 1 Malaysia, Prof Shamsul explains – rhetorically in florid scholastic terms – as a national unity process not in the manner of “unity in uniformity” but “unity in diversity“. This in plain simple English means something out of nothing.

Najib himself, so far with his 4 Values, does not breach on the subject of equality. He talks firstly on a Culture of Excellence- it is basically the abstract issue of work and performance. In Part 2, he talks on Perseverance- in which he preaches some sort of self-help maxims on how life is never easy. In Part 3, he pleads on the trait of Humility.

It is finally, in Part 4 which he threads on issues of more substance: – Acceptance. It is here that Najib tries to surreptitiously and perhaps covertly take on the topic of equality, by pointing out the difference between “tolerance” and “acceptance”. On the former, he explains that “… when you say you tolerate, you don’t quite like it, but you accept it because you have no choice.” This is as opposed to “acceptance”, where he argues “… if you talk in terms of acceptance, it indicates a state of mind that you are embracing something positively.”

So Najib is asking us to accept not to tolerate all the farcical nonsense, but to embrace it with a smile?

It is really all too philosophical for me to swallow. What exactly are all these Values? These are all not politics. It is some sort of Swami Beyondananda mantras – “excellence”, “perseverance”, humility” and “acceptance”. Pick up any cheap self-help book from MPH and you can find the same crap. In fact, why not just get a free copy from the Buddhist temple.

I wait, with abated breath, on the next 4 Values.

A Wholesome Twosome: The only way to get-together without being caught

In these dark and troubled times, a twosome is the only way to go. Forget about the threesome, or even the more illicit gang bang; a monogamous liaison is more wholesome, intimate and perfectly legal.

This is so, considering the fact the police have classified the gathering of people, including the 28 Pakatan Rakyat assemblymen under a tree outside the State Secretariat as an illegal assembly.

Two’s a company, three’s a crowd. No more so than in Malaysia. A “gathering” of three persons can constitute an illegal assembly. This is according to the Police Act 1967. Section 27 (5) of the Police Act 1967 provides that any assembly, meeting or procession shall be deemed to be an unlawful assembly where it takes place without a licence or in which three or more persons taking part in it neglects or refuses to obey any order given by the police.

The provisions appear a bit harsh. What’s an “assembly” in the first place? A get-together? A meet-up? When can it be deemed unlawful? Does it mean that at any one time I go out with two other friends, it can be deemed unlawful by the police at their whims and fancies?

The Penal Code states that an assembly of 5 persons or more is designated as an “unlawful assembly” if the common object of the persons composing that assembly are to: –

– Overcome by criminal force, or show criminal force, the Legislative or Executive Government of Malaysia or any State, or any public servant in the exercise of the lawful power of such public servant;

– Resist the execution of any law or of any legal process;

– Commit any mischief or criminal trespass, or other offence;

– Use criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right, or

– By means of criminal force, or show of criminal force to compel any person to do what he is not legally bound to do, or to omit to do what he is legally bound to do.

The “emergency sitting” – led by Speaker V. Sivakumar and the 28 Pakatan Rakyat assemblymen – hardly qualifies as an unlawful assembly within the definition of the Penal Code. Note that an unlawful assembly is where the persons show criminal force against the Legislative or any public servant. But in this case here, it is the Perak Legislature and its public servant who are charged, not the other way round.

If one looks at it objectively, it is those who assemble and try to stop the sitting of the Perak State Legislature who is the guilty ones. In fact, doesn’t the Penal Code state that those who “… deprive any person of the enjoyment of a right of way” be guilty of an offence as well (this means those who sealed off the State Secretariat to prevent the assemblymen to exercise the lawful power of a public servant?

The law states that if people try to stop a public servant in exercising a duty, he or she can be charged. But only in Malaysia, a public servant can be charged for exercising a public duty.

In any event, I’m no longer taking any chances. If lawmakers can be charged for illegal assembly, who am I to be an exception to the risk. No more group dates for me; no more mamak session; no more stopping to gawk at an accident; no more standing to look at fireworks during the New Year; no more merrymaking bash at Dataran Merdeka.

In fact, I’m going to stop taking the KTM Komuter or the LRT, unless the carriage has less than 3 persons in it.

The David Copperfield of Malaysian Law: Law today, gone tomorrow

Were we all not amazed when David Copperfield made the Statue of Liberty disappear? The jaws of the world dropped – literary – at such magical feat. How did he do it? Perhaps David Copperfield was actually gifted with powers of the supernatural. Perhaps he dabbled in the occult.

But then, what is that compared to the kuasa sakti of our Home Minister, Syed Hamid Albar. With the flicker of his magical Harry Potter pen, he made law disappear. On January 21, he signed a directive under the Internal Security Act by way of gazette, allowing the conditional use of the word “Allah” in Christian publications. The gazette came into effect on February 16. On March 1, Syed Hamid Albar said that he would issue a fresh gazette to rescind the earlier gazette – the reason being – there were “mistakes” made in the drafting of the Feb 16 gazette.

This issue is in relation to the usage by the Catholic Church of the word “Allah” in their publication – the Catholic Herald. A legal suit was filed in the Kuala Lumpur High Court to challenge the ban by the government. In a surprising turn of event, Syed Hamid Albar issued the gazette allowing the use of the word “Allah”, provided there is a disclaimer to the effect that the words “For Christians” were clearly printed on the publications. But of course, this decision is now reversed, by reason of mistake.

I do not wish to dwell on the usage of the word “Allah”; let that be something for our dear courts to decide. I do wish to point out, however, of several foolish and unwarranted implications arising from this blunder from Syed Hamid Albar.

Firstly, how can someone make a “mistake” in issuing a directive, which later was put on print as gazette? Once a gazette is issued, it becomes law of the land, albeit subsidiary and secondary to the principal Act, the Internal Securities Act 1960. I don’t know the actual workings of the issuing of a gazette – but I’ve been made to understand that the document would have to be drafted and proof-read by at least 2 people and a committee before it could be signed by the minister.

So, who screwed up? The person who took wrong notes during the meeting? The AG’s Chambers who drafted the wordings of the gazette? The committee who was supposed to vet the document? The Minister, who was obviously half-asleep when he sign it? Or perhaps, it was the government printers, who took it upon themselves to print something else than what was instructed upon them?

In any event, it doesn’t appear as if the revered concept of ministerial responsibility – practised in jurisdictions of Westminster parliamentary systems – would apply to Syed Hamid Albar. Dear minister, this is not main-main punya perkara; for God’s sake, you’re issuing a law that binds the citizens of Malaysia. Where can mistake-mistake punya? In Japan, hara-kiri would have been an honourable outlet of redemption. But I guess, in Malaysia, the thought of resigning would not, however fleetingly, cross the mind of Syed Hamid.

Which brings to mind the actual wording of the gazette, entitled “Internal Security (Prohibition on Use of Specific Words on Document and Publication) Order 2009”: –

Paragraph 2(1):

“The printing, publication, sale, issue, circulation and possession of any document and publication relating to Christianity containing the words Allah, Kaabah, Baitullah and solat are prohibited unless on the front cover of the document and publication are written with the words “FOR CHRISTIANITY.”

I fail to see, from the wordings of the order, how a “mistake” can arise? The provisions appear crisp and clear. The whole episode appears more to be a decision-taken-in-reverse, rather than a technical mistake. This appears evident, considering that there were calls by certain bodies, notably the Malaysian Islamic Da’wah Foundation, urging the government to withdraw permission for the conditional use of the word “Allah” in Christian publications.

This is definitely not the type of governmental decision that we want to see – laws being made – and un-made – not for the good of the citizens, but at the influential behest of certain important individuals or organizations.

Another damning implication arising from Syed Hamid Albar’s action in issuing a fresh gazette to cancel the earlier one – is that it creates an unhealthy precedent affronting the rules of retrospective laws. Article 7 (1) of the Federal Constitution provides that no person shall be punished for an act or omission which was not punishable by law when it was done or made.

For example, if smoking is not an offence today, then a law cannot be made tomorrow to declare smoking an offence today – this is retrospective laws. This means, I cannot be convicted of smoking yesterday, last week or last month by a law that operates retrospectively.

But by issuing “cancellation” orders, Syed Hamid may be doing just that. On February 16, the law allows me to use the word “Allah”. Because of that – I start printing, publishing and circulating to people in my church. 2 weeks later, a new law come up to revoke the old law – to the effect that there was no such law in the first place. This means, technically, I have committed an offence and can be charged under the ISA.

By doing what Syed Hamid has done, a precedent has been set. Let’s take another example: – say now, a law is passed today to legalize the smoking of marijuana – and people start doing just that, smoking marijuana – 6 months later the Home Minister revokes the law and puts everyone in bars. Is that possible?

All said and done, Syed Hamid Albar is truly Malaysia’s resident magician – Law today, gone tomorrow.