Arbitrary governance

This is a learned legal opinion by Gurdial Singh Nijar that appeared in The Sun.

AN issue that has hogged our media raises some troubling legal issues. It is about the preacher, Zakir Naik.

I will not wade into the usual pros and cons of the speeches made against Malaysians by a foreigner who is accused of much the same crime in another country as some of our erstwhile leaders are facing in our own courts. And the double standards applied in dealing with these different cases.

My concern is a breach of the Rule of Law – which was the recurring central mantra of the new government in the first few months of their tenure.

Rule of Law covers many values – the most fundamental of which is that you allow the law to run its course. Without interference, especially by the executive. As the cliché goes – without fear or favour. And no one is exempt – no matter how high one is, the reach of the law will get you.

Regarding Zakir, a rich orchestra of voices from high government officials and the public prompted police investigations. Into potentially grave serious crimes for statements that denigrated citizens of this country.

But the narrative took a twisted turn when, one by one some ministers and other high functionaries backtracked. Exonerating him amid blazing publicity. Prompting a religious politician to even declare that religious affinity trumped love for country and our fellow citizens.

Now this is where the Rule of Law breaks. Torn to shreds. Because while one arm of the government is at work, another sabotages it. Signalling to law enforcement agencies to staunch the investigations?

This also ignores the fact that we have an obligation under the Extradition Treaty with India, with effect from 2011. We are obliged “to extradite to each other, upon request and pursuant to the provisions of this Treaty, persons whom the authorities in the Requesting State (India) have accused or convicted of an extraditable offence within the jurisdiction of the Requested State (Malaysia)”.

The offence of which Zakir is accused (especially money laundering) is an extraditable offence.

Malaysia will only be excused from extraditing the fugitive offender if it is satisfied that the offence of which that person is accused is of a political character. Or if the application is not made in good faith or in the interests of justice or is made for political reasons; or for any other reason which, having regard to all the circumstances, would be unjust or oppressive to return the person to the Requesting State. Perhaps this is possibly the basis for the present refusal – that Zakir may be killed or sentenced to death as he is also being charged for terrorism.

Such a reason may not hold water as he can be extradited, not for the terrorism offence, but for the fiscal offence of money laundering. Then the Malaysia-India extradition treaty says that Zakir cannot be tried or punished for any other offence. So at worst, Zakir faces prison sentence and not death.

The “killing” argument also smacks of utter disdain for the judicial system of India to deliver fair justice to this fugitive. This basis defies understanding. 

For the Indian judicial system has a reputation that is recognised for its dynamic decisions and enlightening jurisprudence. Indeed our higher courts routinely cite cases of the Indian Supreme Court.

In any event, a Malaysian court will determine whether or not to extradite. And only order extradition if it decides that there is probable cause to believe the person committed the alleged offence. After which the case passes back to the executive who has the final say on the matter. Essentially, it is a determination of whether the facts alleged constitute a crime in the prosecuting country.

• Perhaps it is time to rethink the government’s stance. 
• Else it will suffer the accusation that this issue, aside from dividing the nation, brings into question our new government’s commitment to the rule of law; and maintaining comity among nations with whom we have treaty arrangements.

Gurdial, a former law professor, feels any breach of the rule of law will lead us down the slippery slope to arbitrary governance. Comments: letters@thesundaily.com

My comments : This is a learned opinion. Academic and intelligent. Therein lies the problem.  This is Malaysia sir.  People disappear in the nite. And even in the daytime. 

The fact that the authorities are complicit or drag their feet is the smallest of problems. The much larger problem is the public does not care and hence is also quite complicit. It is a question of morality and values.