Law for All 3 September 2009

For the 1Malaysia concept to work, there has to be equal treatment of people by the judiciary regardless of race, religion, wealth or political influence.

A FEW weeks ago, two minors were detainedby the police. According to the law, they must be produced before a magistrate within 24 hours of their arrests. They can only be detained further if the magistrate grants a remand order.

I went to the police station as one of the lawyers representing one of the minors in the remand application before the magistrate.

The two minors were alleged to have participated in an illegal assembly. I do not know whether they were indeed participants or mere bystanders in the wrong place at the wrong time. Nor was it of relevance to me. The issue was not whether they were guilty of the alleged crime. My presence, along with fellow lawyers, at the police station was to uphold the fundamental right of each citizen to legal representation as enshrined in the Federal Constitution.

Our duty was to tell the magistrate that the minors do not need to be detained further for the purpose of investigations. Whether they were participants in the alleged illegal assembly can be ascertained without the need to detain them further. Fortunately, the magistrate held the same view.

The law is clear – detained persons shall be allowed to consult and be represented by a lawyer. This law applies to everyone, regardless of race, religion and political affiliations. Everyone is entitled to equal protection of the law.

Our Prime Minister, Datuk Seri Najib Tun Razak has made it clear that one of the foremost aims of his administration is to improve race relations and to foster national unity. 1Malaysia would be the conduit to achieve that goal.

I believe that there are three crucial components in the concept of 1Malaysia that are needed to make it a success. These are equality, acceptance and unity. Equality will lead towards acceptance and once we accept each other, we can be united.

The basic premise of 1Malaysia is not novel. Our founding fathers had always envisioned a nation that promotes equality, acceptance and unity. Despite the special position accorded to certain ethnic groups, the underlying principle of our Federal Constitution is that the rights of all Malaysians, regardless of race and religion, will be protected.

Article 8(1) of the Federal Constitution states: “All persons are equal before the law and entitled to the equal protection of the law.”

The meaning of Article 8(1) is simple: the law applies equally to all Malaysians. Race, religion, gender, social class, wealth and power should not have any bearing on application of the law. Everyone is equal in the eyes of the law.

The notions of equality and equal protection, as encapsulated in Article 8(1) are not new. They are aspects of the concept of rule of law; that the law is above everyone and it applies to everyone.

Equality before the law and equal protection of the law or “legal egalitarianism” is an important element that is needed for 1Malaysia to succeed. 1Malaysia cannot succeed if the rakyat do not feel that there is only one Malaysia for all. For it to resonate within each and every Malaysian, 1Malaysia must go beyond slogans, banners and theme songs.

Equality before the law means that a person who commits a wrong must be punished by the law. A person with power is as guilty of a crime as a man on the street. No one should be exempted from the law by virtue of his power, position, wealth, ethnicity or religious beliefs.

Equal protection of the law means that a pauper who comes to court seeking legal redress is entitled to the same justice as a millionaire. The rights of each and every individual are protected by the law regardless of who the person is. Everyone has a right to legal representation and has a right to a fair trial.

The operation of law and the dispensation of justice must apply equally to all. Justice must be blind; meted out objectively, impartially and without fear or favour.

For the most part, our laws do not distinguish between people of different races and religions. A person who commits theft will be guilty of the crime. A person who has been negligent and causes loss to another person will be liable for damages. A person who owes money to another person must repay the amount owed. A person who has indulged in corrupt practices must be brought to justice.

These laws do not provide for different liabilities or procedures for different people. They apply equally to all.

The problem is not with the law itself but with the institutions tasked to carry out and implement the law. There is a perception amongst a wide section of society that certain persons and quarters are frequently allowed to go “off the hook”. There is a perception that the application of the law is not impartial and influenced by various racial, religious, financial and political considerations.

Why is it that certain politicians are investigated zealously over alleged corrupt practices but allegations against other politicians are not even looked into? Why do certain groups need a permit to gather but other groups do not? Why are some organisations allowed to disseminate racist propaganda without action being taken against them?

These are the questions raised by the rakyat and gives rise to the perception of partiality and biasness in the application of the law.

Similarly, the independence of the judiciary must also be upheld. A person who seeks legal redress must be able to come to come to court with the confidence that justice will prevail.

It is not enough that they are repeatedly told that the judiciary is independent; the rakyat must see and believe that the judiciary is truly independent. Justice, after all, must not only be done but must also be seen to be done. We simply cannot afford a situation where a party comes to court with a pre-conceived notion of what the decision will be, not based on the strengths of the case and the evidence available but on the might of the parties in the action.

Let us not sugar-coat the harsh reality; we have a low perception towards the institutions involved in the implementation of the law and the dispensation of justice. We cannot allow this negative perception to go on for much longer. We must use 1Malaysia as a clarion call to address the issues that plague these institutions. 1Malaysia must bring back the legal egalitarianism found in our Constitution. 1Malaysia must revive the people’s confidence in these institutions.

Once the Prime Minister and his administration restore the confidence that everyone is equal before the law and that everyone is entitled to equal protection of the law, the rakyat will no longer feel that there are different “Malaysias” for different people. The rakyat will then believe that there is 1Malaysia for all.

*this article was published in the Star on 31 August 2009, for it’s Merdeka Special pullout.