ROS, defamation and consistency in the Selangor crisis

It seems some are happy to use the system when it works for them, but decry as traitors those who use the system in ways that do not benefit them.

Nathaniel Tan, The Ant Daily

OUTSPOKEN: Throughout the Selangor crisis, one problem seems to stand out the most for Datuk Seri Anwar Ibrahim and PKR, and that problem is inconsistency.

Today’s column will examine the question of consistency with regard to accusations against Tan Sri Khalid Ibrahim surrounding the Registrar of Societies (ROS), various other civil institutions, and briefly back once again to the Bank Islam case.

Sometime after Khalid was sacked from PKR, he filed a complaint with the ROS. Activists, politicians and NGO personalities reacted in a tsunami of anger, accusing Khalid of sleeping with the enemy, and other such heinous betrayals.

The level of indignation reminded me of the culture of omerta, which states that there is no worse traitor than someone who goes to the authorities to settle feuds.

According to some activists, it would seem that this is the sin that Khalid committed -- he went to the authorities with a grievance that should have been settled internally, thus giving the “oppressors” more opportunity to oppress.

All this sounds very romantic and dramatic in a Godfather kind of way, but I wonder though, whether we should be using the mafia as the guiding example for our principles and actions.

To recap, PKR sent Khalid a show-cause letter, accusing him of disobedience to the party’s Kajang Move directive to replace him as menteri besar back in January 2014.

Khalid replied saying that he had never agreed to any such move, and that the show-cause letter was deficient because it failed to point out exactly which articles of PKR’s constitution he had violated (note that this is the party’s own constitution, which has nothing to do with the government or Barisan Nasional).

PKR then ignored those questions in its reply, and instead listed an unrelated list of “controversies” that they demand Khalid explain in person within less than half a week.

Khalid, mildly perplexed, then pointed out in his reply to the second letter the oddity that that list of controversies had nothing to do with the matters listed out in the first show-cause letter, essentially wondering whether PKR was making things up as they went along.

Despite this confusion, Khalid said he was willing to appear in person before PKR’s disciplinary board, and suggested a date approximately a week away. Indeed, if the menteri besar is so free as to be able to attend meetings on one or two days’ notice, he must not be a very busy or effective menteri besar.

PKR, checkmated perhaps, refused to reply to this request, and responded only with a unilateral decision to sack Khalid.

I suppose it is up to you to believe whether or not justice is practised in the People’s Justice Party.

Khalid apparently did not, and he decided to notify the ROS of what he viewed as a failure on PKR’s part to observe the principle of due process and natural justice -- the former of which any Khalid observer will note is something of an enduring preoccupation for him.

I’m not sure what those who disdain this action would rather have Khalid do. I’m sure a good number of them simply dislike Khalid strongly on a personal level, and would be happy for him to just curl up, take the kicks, and fade into oblivion.

The excuse used by critics of this move again cites the ROS as an inherently unjust instrument of state oppression.

Assuming such critics believe ultimately that state institutions are theoretically the correct place to find remedies for injustice (the alternative being some sort of anarchy which we have not space to debate here), I imagine their position to be that the problem is that these institutions are corrupt and are not performing their functions properly, and should therefore not be used by those who fight for justice.

Well and good, but surely there must be consistency across the board. If we do not believe in the ROS, why then are parties and NGOs registered under them?

If we believe that the courts are corrupt, and that defamation suits are an attack against freedom of the press, then why is it all right for Lim Guan Eng and Nurul Izzah Anwar to sue Utusan Malaysia, but not all right for Khalid to sue The Malaysian Insider?

I think I read someone say that Khalid refused to give an interview to The Malaysian Insider, and therefore has no right to sue. That is odd, given that for a while (I am unsure if the policy continues), I believe it was Penang government policy to boycott Utusan, so I cannot imagine that Lim gave them an interview either.

As an aside, the venom and vitriol against Khalid’s lawyers Edmund Bon and New Sin Yew seems to me perplexing as well. Some charge that it is not right for “those who call themselves human rights lawyers” to be part of such legal action.

I personally believe that what they are doing is entirely consistent with human rights (especially with regard to the right to justice), but truly though, if Bon chose to call himself the guardian of all that is right and just in the galaxy, or the Queen of England for that matter, who am I to say he is wrong for doing so? With regard to accusations of hypocrisy, I can truly only say let those without sin cast the first stone. To continue down such a road would only end in devouring one another like wolves.

If we believe that Khalid was wrong to make the bold move of reporting himself to the MACC, well and good, but then why did so many PKR leaders and others make reports to the MACC over the years?

We all remember how Anwar organised massive Black 505 rallies in the aftermath of the 13th General Election, where he famously proclaimed that due to the corruption of the Election Commission and the election process, the elections were unjustly stolen away from Pakatan Rakyat.

It was also there he (in?) famously said that since Pakatan won the popular vote, they were therefore the rightful winners of the election, which in turn meant that he was under no obligation to honour the promise he made to retire from politics should Pakatan fail to wrest Putrajaya.

It is certainly anyone’s right to decry the election process, but if they truly believed it to be broken, then why did all those in Pakatan who won take their oaths of office in Parliament?

The thread running through these cases is that it seems some are happy to use the system when it works for them, but decry as traitors those who use the system in ways that do not benefit them.

This antagonism towards civil institutions can be seen in the early attitudes of Pakatan politicians towards civil servants in the states that they ran. Such civil servants were decried as Umno lackeys who were merely out to sabotage Pakatan and keep corrupt networks in place.

Khalid took a different approach when he became menteri besar. He understood that someone needed to make the first step if healing and rebuilding were to really happen meaningfully.

He basically told the civil servants, even those close to Khir Toyo before, that from now on, if you do your duty to the state professionally, I will do my duty to you professionally. Ask those close enough to see, and you will find that this has led to a noticeable improvement in Selangor’s civil service.

When it comes time to replace Barisan Nasional with a new government, whose attitude towards civil servants do we want to emulate?

On the subject of consistency, one more comparison must be made. Learned counsel and eloquent commentator Syahredzan Johan and Rafizi Ramli both recently tweeted the notion that when allegations have been made against a public official, the right thing to do is for that official to step down until his name is cleared.

Syahredzan’s words, echoed by Rafizi, were “We are talking about holding public office. Any allegation of impropriety would be enough to necessitate the said person to leave his post.”

I find this odd. Does this mean that if I were to write today (just for instance) that Lim Guan Eng engaged in corruption in making the deal to build the Penang undersea tunnel, then he must now resign until he has cleared his name to my satisfaction?

One might argue about how much evidence I have, or how “big” the allegations are, but isn’t that a subjective test?

Surely consistency requires an objective, institutional test, instead of “whatever some arbitrary person decides is sufficient public sentiment or interest”.

If not, the words “any allegation of impropriety” would surely include the example of my accusation above.

A parallel in this case would be Anwar’s sacking in 1998. Many hold that Anwar was correct not to resign from office when Tun Dr Mahathir Mohamad insisted he do so.

Were there not allegations of impropriety here, namely that Anwar had abused his powers to cover up investigations into his sexual life?

I feel that the allegations against Anwar regarding the latter were unsubstantiated, malicious and politically motivated. Going by Syahredzan and Rafizi’s test, however, they would constitute sufficient reason for Anwar to step down nonetheless.

With regard to the burden of proof, I submit that there is even less evidence of impropriety on Khalid’s part with regard to the Bank Islam settlement than there was of Anwar’s alleged salaciousness.

So, if Anwar was right not to step down then until the allegations against him were proven, surely Khalid was right not to step down, given that the allegations against him are unproven.

Emotions run high, and as usual, we talk past one another instead of to one another. At the end of the day, however, when the dust has settled, I hope we will continue our endeavour for consistency in both our principles, and the applications thereof. Not least because the quest for a better Malaysia is a marathon, not a sprint.

NATHANIEL TAN tweets @NatAsasi.

- See more at: http://www.theantdaily.com/Main/ROS-defamation-and-consistency-in-the-Selangor-crisis#sthash.Hcvuv64D.dpuf