ISA - To Review Or To Repeal?

25 Feb 2010, By Yang Pei Keng.

In April this year, our new Prime Minister Najib Abdul Razak suggested that the Internal Security Act 1960 (ISA) be subject to review. 13 detainees were released. However, almost at the same time, the ISA was invoked to detain 3 more persons. Little or no publicity was given to such recent detentions.

Proposals to review the ISA had in fact been made by past Prime Ministers, such as Dr Mahathir and Abdullah Badawi, with a view to amending the draconian legislation on detention without trial, but no positive results came about.

Since the ISA came into force in 1960, nearly 50 years have passed. It still exists today. Criticisms have been levelled against the Act from time to time by numerous bodies and organisations like the Bar Council, Civil Rights Committee (CRC), Suaram and even Suhakam. They have all along been advocating for its repeal, but the government has yet to take effective measures in this direction.

True, amendments to the lSA were made from time to time, but they merely served to make it more stringent and detrimental to the interests of the citizenry. For instance, S.73 [relating to the maximum period of detention and investigations by the Police] of the Act was amended to extend the period of detention from 28 days to 60 days, empowering the Police to detain a person for a period more than necessary for investigations. In fact, the necessary investigations ought to have been done before detention, and not after detention.

Similarly, the relevant provision of the Federal Constitution [concerning detention without trial] was also amended to legitimise the undue delay on the part of the Advisory Board in submitting its report after a period of more than 30 days as originally stipulated.

ISA is against the rule of law

Under an ordinary Act of Parliament, if someone is in breach of the law, he has to face criminal charges and will have to stand trial in a court of law. If he is found guilty, he will be sentenced to imprisonment or fined. Such legal process is perfectly in accordance with the spirit of the rule of law.

The ISA, however, is unlike such general laws, and detention under the ISA is subject to an entirely different procedure. Under the Act, the police or the Minister for Internal Security may arrest and detain any person arbitrarily, without any necessity of producing him for trial in any court of law.

In other words, under the ISA, without any proper criminal charge preferred against the person, and without any court trial, judgment and sentence he will be detained by the police for up to a maximum period of 60 days. In most of such cases, a person will be detained for a full period of 60 days (Note: It was only 28 days previously before the relevant amendment).

According to those who have undergone the 60-day police detention, they have been subject to inhuman physical or mental torture, resulting sometimes in mental derangement, and even suicide. It is always euphemistically said that the person was detained for “investigations”.

According to democratic process, all investigations ought to have been done before making any arrest or detention.

After the 60-day detention, a person may be detained for a further period of 2 years pursuant to an order issued by the Minister of Home Affairs. Such 2-year detention period is renewable indefinitely. In theory, a person may be detained for a much longer period. He may be left to rot in the detention camp, so to speak. At least, in law, the Minister of Home Affairs has such arbitrary power to extend the period of detention indefinitely.

In South Africa, Nelson Mandela was detained for 27 years, whereas in Malaysia, Loh Ming Liang of Johor experienced detention without trial for 16 years.

It is widely recognised that the longest-serving detainee under detention without trial was Chia Thye Poh of Singapore. He had been deprived of his personal liberty by the Singapore government for a total period of 32 years. He was detained in the detention camp in Singapore for 23 years, and he was subsequently restricted in his personal liberty for a further period of 9 years on Sentosa Island, making a total of 32 years.

Chia Thye Poh, after his release from detention, immediately issued a statement condemning the draconian ISA, and advocated the repeal of the ISA. As a victim of such inhumane legislation, Chia was fully aware that such unjust law had been invoked to trample underfoot human dignity, and to instil fear in the minds of the people.

He opined that the ISA was the product of former western colonialism. It was resorted to by the powers-that-be to dampen the spirit of the people in the colonies fighting for independence. (See Ang Siok Ngai 2001: Chia Thye Poh – the Longest Serving Political Detainee in Asia)

In criminal law, if any person is found guilty of a serious crime, such as manslaughter, he may be committed to life imprisonment. “Life imprisonment” means a jail term of 20 years, but with all deductions, such as Sundays and public holidays, in actual fact, a person sentenced to life imprisonment needs to stay behind bars for approximately 13 years only.

It is to be noted that detainees under the so-called preventive detention laws have never been charged in court, tried and convicted of any crime. None of the political detainees mentioned above inflicted any bodily harm on any person, let alone committed any serious crime. That notwithstanding, they were arbitrarily arrested and detained in the detention camp without trial for a period much much longer than “life imprisonment”. How ruthless and brutal the ruling elite can be in exercising the power bestowed upon them by the ISA! The essence of ISA - detention without trial

Under the ISA, any person may be subject to arbitrary detention without trial. Without any doubt, detention without trial runs counter to the spirit of the rule of law. No democratic government committed to the rule of law will tolerate detention without trial.

The essence of the ISA is arbitrary detention without trial. Those in power may arbitrarily retain any person under the ISA. In recent years, particularly before the March 8 general election in 2008, abuse of powers under the ISA was rampant in this country.

The crux of the issue is: the primary objective of the ISA is to allow detention without trial. It is not justifiable today to have such law. In the circumstances, should the ISA be reviewed or repealed?

Any country subscribing to the rule of law, democracy and human rights, will never allow abuse of power under the law of detention without trial. If those in power have the genuine intention to do away with arbitrary detention without trial under the ISA, it is incumbent upon them to repeal the ISA once and for all.

Obviously, the ISA must be repealed. Apart from repeal, there is no other alternative. Merely reviewing the provisions of the ISA will lead us nowhere. It may prove to be a futile exercise.

Any attempt at merely reviewing the ISA can only effect a cosmetic change in the legislation itself. It may even enhance the law on detention without trial. In fact, the ISA is seen to have been used to silence opposition and dissenting views.

Perhaps some may ask, what about fighting terrorist activities which have been taking place frequently? Suffice it to say that there is a host of existing criminal laws dealing with terrorist activities. A series of current anti-terrorist legislation are more than sufficient to deal with such situation. An all-encompassing ISA is not required for that purpose.

Simply put, in order to do away with the draconian law of detention without trial under the ISA, the only solution is to repeal the ISA. Merely to review it will not serve the purpose; it may even have the undesirable opposite effect.


This article has appeared in Praxis November 2009. Click here to download the full issue.

Ku Li Responds To Full-page Ads On Royalty Issue

Written by Tengku Razaleigh Hamzah

Monday, 22 February 2010 16:13

The Edge

I see the Ministry of Information has taken out full page advertisements in the major Malay newspapers to argue that Kelantan has no right to oil payments under the Petroleum Development Act because the oil resources in question lie outside the 3 nautical mile limit that delimits state versus federal jurisdictions. The advertisement fails to point out that almost all the oil found in Malaysia is located more than 3 nautical miles offshore, and Petronas has nevertheless been making oil payments to the states.

By the argument deployed in the advertisement, Terengganu, Sabah and Sarawak too are not entitled to the “cash payments” of 5% of profit oil (commonly and a little inaccurately referred to as “oil royalties”). Everything is at the arbitrary behest of the Federal Government.

Yet last year, according to its annual report, Petronas paid out RM6.2 billion in petroleum cash payments, with RM3 billion to Terengganu, RM2.3 billion to Sarawak and RM0.9 billion to Sabah. One wonders what basis this payment was made on since none of this was for petroleum found within 3 nautical miles offshore of these states. The argument for depriving Kelantan of 5% cash payments on the basis of its petroleum resources being found beyond 3 nautical miles is an insult to the intelligence.

I have spoken and written at length on this issue and had been reluctant to say more on it. Moreover, as a member of the ruling party I am embarrassed to have to belabour elementary points against the government. This information campaign, whether through a leaflet campaign in the schools or through newspaper advertisements paid for with taxpayer money, implies either culpable stupidity or gross deceitfulness on the part of agents of the Federal Government. I had hoped to avoid that implication.

The government’s advertisement also exhumes a ten year old mis-quotation in a government newspaper to allege that I once denied that Terengganu had any right to the 5% cash payment. I said no such thing. If the government media is to be believed I also once converted to Christianity by wearing Kadazan headgear just in time to be exposed amidst a General Election campaign. Why does the government rely on a ten year old misquotation? Well, these days we have our own blogs.

In fact, as a BN backbencher at the time I opposed the Federal Government’s intervention to prevent Petronas from making oil payments to Terengganu and the move to channel those funds instead into “wang ihsan”. Tun Salleh Abbas and I offered ourselves as witnesses to the Terengganu state government in the suit it filed against the Federal government to recover those oil payments. Between the 2000 and 2009, RM15.8 billion was paid out through the legal black hole of wang ihsan, not to the rightful party as specified under the Petroleum Development Act, which is the state government’s consolidated fund, but to agencies more amenable to vested interests linked to the central government. The outcome of that spending is the Monsoon Cup, a Crystal Mosque in which it is impossible to pray, a leaking swimming pool, a collapsed bridge and a collapsed stadium. The people of Terengganu remain poor while Billions have been paid out in their name.

I am said to have changed my mind or somehow ignorant of the fact that Kelantan’s petroleum resources all lie offshore when the fact is that, on the instruction of the late Tun Razak, I drafted the Petroleum Development Act precisely because we wanted to ensure that Kelantan, Terengganu, and potentially Pahang and Johor would benefit from the 5% cash payments.

We did precisely because we knew that these states did not have oil onshore or within their territorial waters. The device we used was a Vesting Deed by which the states vested, in perpetuity, all their petroleum resources to Petronas, onshore or offshore. In return for this Petronas guaranteed the cash payment of 5% from oil found anywhere, offshore or onshore, of the state. This rendered any consideration of federal/state boundaries whether at 3 or 12 nautical miles or whatever irrelevant for the purpose of reckoning the payment. I traversed the country to sign this agreement with each Chief Minister of each state government. Tun Razak was driven by the nation-building concern that these poorer east coast areas, which are also predominantly Malay areas should benefit directly from offshore oil, and I drafted the Petroleum Development Act to reflect that concern.

It is this benefit to the people which Umno Kelantan opposes 34 years after the death of Tun Razak. It is also Razak’s legacy that they make a mockery of. It is a mark of how far Umno has strayed off course that the leadership of Umno, and in particular Umno Kelantan is doing its utmost to deprive the people of Kelantan of sovereign rights secured by an UMNO-led government of another day. No one in their right mind could mistake this as behaviour that is beneficial to Umno’s long term standing in Kelantan, let alone elsewhere as people observe this behaviour.

I am accused of putting state interest before party interest. However the issue goes far beyond Kelantan. The arguments used in yesterday’s newspaper advertisement undercut the rights of all the states in respect of a natural resource which is theirs as a sovereign right. It violates a contract between Petronas and the states, denies the Petroleum Development Act, denies the raison d’etre of Petronas (which was in the first place formed to ensure the integrity of the federation by way of an equitable sharing of this valuable resource) and sets the Federal Government in contravention of an Act of Parliament.

One immediate implication of the argument laid out in yesterday’s official clarification from the Ministry of Information is that Terengganu is also ineligible for the oil payments. This means that after cutting off oil payments when Terengganu fell into Opposition hands and replacing it with “compassionate payment” there is absolutely no basis for the government’s promise to return Terengganu to cash payments again. All of Terengganu’s oil is found very far offshore. In this matter whatever holds for Kelantan holds for Terengganu and vice versa.

In the end this is not a question of politics or personality. It is not about what I or anyone else says, nor of where Umno or PAS stand. It is about the government complying with written agreements governed by an Act of Parliament and respecting parliamentary democracy. The rights of the people are not to be fulfilled or withheld depending on who they have voted for. In treating Terengganu and Kelantan in this manner we are depriving them of money that is rightfully theirs, undermining sovereign state rights, and eroding parliamentary democracy. We should do the right thing by the people at whose pleasure we serve.

3rd Phase Launch of MyConstitution Campaign/ Kempen PerlembagaanKu

Circular No 054/2010
Dated 11 February 2010

To all Members of the Malaysian Bar and pupils in chambers,

Launch of the 3rd phase of the Kempen PerlembagaanKu/MyConstitution Campaign:
FEDERAL-STATE RELATIONS NEW RAKYAT GUIDES BOOKLET. NEW RAKYAT SERVICE ADVERTISEMENT.MORE CONVERSATIONS ON THE CONSTITUTION.

We have come to the 3rd phase of the MyConstitution Campaign. This time, it will be co-hosted by the Selangor Government! With the assistance of the Selangor Government, we are launching the 3rd booklet: The Rakyat Guides entitled “Federal-State Relations”. In keeping with tradition, we are also releasing the 3rd Rakyat Service Advertisement, entitled “Federal-State Relations”, and holding a forum consisting of a learned and eminent panel of speakers.

We wish to invite all Members of the Bar and pupils in chambers to the official launch of this phase of the Campaign.

The details of the launch and forum are as follows:
Date: 1 March 2010 (Monday) Time: 2:30 pm to 5:30 pm Venue: 2nd Floor, Annexe Building, Bangunan Sultan Salahuddin Sultan Aziz Shah, 40000 Shah Alam Theme: Conversations on the Constitution: State Powers – A Reality or Myth?

For more updates on the event, please check our websites at:http://www.perlembagaanku.com/ www.malaysianbar.org.my/constitutional_law_committee www.facebook.com/MyConstitution www.twitter.com/MyConsti www.youtube.com/user/PerlembagaanKu

Come and support our mission to merakyatkan Perlembagaan!

Admission is free but pre-registration is required. To register, kindly contact Lim Ka Ea by telephone at 03-2031 7103 or by email at kaea@malaysianbar.org.my.

Thank you.

Constitutional Law Committee

Bar Council

Live updates: MB v MB

9 February, 2010

By Edmund Bon Tai Soon

(note this post may contain mistakes as it is paraphrased. Full judgment will be posted soon and this post will be removed by the end of the day)

1109 no order as to costs by consent. Question 1 answered in affirmative, question 2 answered that extraneous means possible, question 3 if mb doesn’t resign, post can be deemed vacant. However all is not lost, nizar still able to move a no confidence motion in housev zambry or make rep to sultan that zambry no longer commands majority.

1105: word “shall” is mandatory so if nizar’s request to dissolve was refused, nizar must resign. If nizar doesn’t resign, nizar went v 16(6) and sultan can remove. Appeal dismissed

1100: Court rules affirmative to question 1 n no need house vote to question 2 meaning sultans action to deem nizar’s post vacant is valid. For question 3, court agrees that sultan may remove MB n appoint new MB who commands confidence of majority of members.

1054: Goes in depth of Amir Kahar, n says Ningkan is distinguishable. Quotes Raja Azlan Shah in Loh Kooi Choon to say that our constitution must be read without reference to other constitutions. See also KWK. Agree with Raus that it will lead to absurdity if under 16(6) one may only establish loss of confidence after votein house. Extraneous evidence is accepted following kadir Sulaiman in Amir Kahar eg concession by MB, resignation etc

1047: J deals with question whether vote in house required n effect of case of ningkan. AG says that factors in ningkan are distinguishable ie assembly in ningkan was in session. Also ref to Amir Kahar and Akintola. Goes into facts of those cases.

1043: J discusses 16(6) & 36(2). There was no vote of no confidence. But request for dissolution, following court of appeal, was made under 16(6). Court of appeal was justified to say so.

1039: J speaks about state of affairs as of 4feb. Court of appeal was correct. Nizar knew as of 4 feb that he lost support of majority. It was a request under 16(6).

1035: J now goes to the questions. Interpreting 16(6) Perak constitution. MB if ceases to command confidence can ask under 16(6) for dissolution but if sultan refuses to dissolve then MB must resign. No dispute that MB asked for dissolution. But was it under 16(6) or 36(2). HCT did not believe state legal adviser but court of appeal reversed HCT per Raus Sharif.

1031: J goes thru constitution n principles in interpreting the same. See hinds, teh, nordin salleh.

1026: Najib presented sultan letter showing majority aligned to bn, brought 31 ADUNs to meet HRH who pledged support to BN. HRH spoke to 4 ADUNs incl Bota. 1pm 5th feb nizar had meeting with sutan, sultan later issues press statement saying sultan refused to dissolve n that MB post vacant.

1024: J going thru Hee’s actions. Sultan receives 3 ltrs on the jumpers’ positions saying they lost confidence in nizar

1019: J narrates the 3 jumpers fr pr to bn, purportedly resigning, but all 3 refute resignations

1014: arifin zakaria delivers judgment of court – appears to be unanimous, judge now reads grounds, going thru chronology

1011: court convenes, Philip introducing parties

1006: fyi, Hj Sulaiman is in shah alam court for trial n can’t get away. Team nizar rep by Philip Koh, Chan Kok Keong, Nga Hock Cheh, Ranjit Singh, Razlan Hadri, Amer Hamzah, Leong Cheok Keng, Hanipa Maidin, Zulqarnian Lukman, Joanne Leong, Cheang Lek Choy, myself

1004: people getting edgy, crt staff ready, appearance by judges imminent

959: still waiting for court to appear

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It's Murder Every Day In The Old Bailey

From The Sunday Times

January 31, 2010

It's murder every day in the Old Bailey

Gang violence, terrorism, honour killings... it’s all in a day’s work at the Old Bailey. We're given unprecedented access to the hallowed halls of the criminal courts.

By David James Smith

There is a place in my heart for the Old Bailey. One afternoon, 18 years ago, I went along to the Central Criminal Court and took a seat at random. I thought I was going to research a satirical drama about the judiciary, and I suppose I was hoping to hear a judge comment on the fragrance of a Tory wife or ask who the Beatles were. Instead, I found a well-off teenager in the dock alongside a wild, older Glaswegian. Together, as I discovered that afternoon, they had got drunk, taken drugs, tormented and finally killed a vulnerable local man in his own flat. The middle-class youngster described how he had pressed his palms against the wall for leverage as he had jumped up and down on his victim’s prostrate body. He recalled how he had listened to the sound of the ribs cracking.

The incident had taken place in Pinner, northwest London, a place I knew well as I had once been responsible for writing the “Pinner Pars” of the local newspaper, the Harrow Observer, a bland weekly offering of planning-committee decisions and church fêtes. There was never, ever the slightest hint of the dark world of drink and drug-fuelled violence inhabited by the men in the dock. It seemed at the time to be a glimpse of the savage reality just beneath the surface of our civilised western ways. I was haunted by what I heard. Abandoning all thoughts of satire, I went on to write about that case in detail. It was the start of a life of crime narratives involving long, carefully researched articles and the occasional book.

I have been to the Old Bailey often since, sometimes following cases for many weeks. I have seen jurors cry and watched the expression of horror pass across their faces as they are passed photographs of a corpse. I have sat through the brutal facts of a crime or the gruesome details of a postmortem, rendered almost banal by the monotone fashion in which they were delivered by a lawyer, a police officer or an expert witness. I have felt ashamed, sitting there listening, with the victim’s family nearby, and have occasionally carried with me back into my life things I wish I didn’t know. I stopped eating HobNobs after hearing they were found in the stomach of a child who had been fed them in an allotment shed by the paedophile who attacked and killed him. The naming of the biscuit was the vivid, everyday detail that made the child’s death all too real. I feel that inevitably some of that sordid information has seeped into my soul — a kind of guilty knowledge about what people can do to each other, and have always imagined that must be true for many other people at the Old Bailey — jurors, police officers, lawyers and judges alike.

The Old Bailey has become familiar to me, and yet there is much about it that I have never seen or understood. Entry to the public gallery is strictly controlled. If the case is gang-related - as many are these days - and there is a fear of intimidation, you may, on the judge’s orders, have to give your name and address before you enter. No amount of protest that your human rights are being infringed will wash with the patient, well-trained security guards, such as Matthew Butler and Svetlana Dotsenkova, who told me how it “kicks off” when rival families or gang members sneak plastic or wooden weapons past the metal detectors. Knives and guns must be left at home. Nor, as the sign says, will you be allowed in with children, bags, holdalls, mobile phones, cameras, cassette or CD players (no mention yet of iPods).

The public has no access to the Old Bailey beyond the gallery, so never sees its magnificent marble hall and muralled dome, nor the corridors and open waiting areas where lawyers, detectives, reporters gather in huddles and talk in whispers about their cases, breaking off altogether as a jury files past in a 12-strong crocodile for fear they may be overheard, throw a case into disarray and land up in the dock accused of contempt.

Beyond these areas there is a backstage world, the engine of the place, which I had always wondered about but never seen. What mysteries could be solved behind those doors? What are the secrets of the Old Bailey?

After lengthy negotiations over several months, The Sunday Times Magazine was invited in, given exclusive access to staff and accorded the rare privilege of being able to take photographs inside the building. The unique opportunity opened many doors within the Old Bailey for the first time.

Matron - a busy woman about the court who I had seen many times but never spoken to - invited me to her office and told me she had not given an interview in 16 years. A world exclusive! Heads turned as we marched through the Bar mess to the kitchens; barristers stopped and stared as the photographer, Zed Nelson, set up his shots. A grumpy maintenance man threatened to blow Zed’s equipment up when he left it unattended behind a pillar. We’ve had bombs here, you know, he said. That was true. It was in 1973. A car bomb left in the street outside (the street itself is called Old Bailey) by the Provisional IRA. There is still a glass shard embedded in a wall above the top of the main stairs as a reminder. These days the fear is not of Irish extremists but of Al-Qaeda.

Court staff are subjected to Criminal Records Bureau investigations and Counter Terrorist Checks. Everyone arriving during busy times confronts a long delay of airport-style security at the lobby bottleneck, where they must be cleared to enter by security staff, then pass through one of two reinforced Perspex pods before walking under a metal detector and sometimes subjected to a second check with a hand-held machine.

The country’s leading prosecutor, First Senior Treasury Counsel Jonathan Laidlaw QC, was ribbed one morning by his colleagues after I told them he had been photographed. He refused to wear his wig and gown for his pictures, did not want to be seen as pompous, I think, yet supported the demystifying of the Central Criminal Court implied by the access given to this magazine.

A comprehensive boy, who had failed his 11 plus, he is not your archetypal public-schooleducated barrister with a cut-glass accent and a self-confident veneer. Surprisingly, when I asked Laidlaw if he could remember his first appearance at the court, he said it had been a thrilling but terrifying rite of passage and he had never lost his nervousness. He believed he was, by nature, a nervous person, and even though he did not like to think of himself as an actor - “there are barristers who indulge in theatrical performances, but I don’t think juries are impressed by it and they see through it” - he accepted the anxiety that came with his public performances.

As a prosecutor he “opens cases”, outlining the evidence against the accused, setting out what the Crown claims they have done and how they will attempt to prove it in court. Cross-examination, legal argument, closing speeches, they too are moments that bring on nerves. Laidlaw said that hiding behind a horsehair wig and a black gown helps. His own wig had been stolen from the robing room of the Inner London Crown Court some years ago (a robing room is a place reserved for barristers - an untrustworthy bunch, clearly) and the wig he now wears is an old theatrical prop that he bought second-hand as a replacement. He still has the wig tin though, inscribed JT Laidlaw Esq, bought for him by his mother 25 years ago to mark his “coming to the Bar” after completing his pupillage. The tins (which start at £185), wigs, gowns and other accessories of the judges and lawyers are bought from Ede & Ravenscroft in Chancery Lane (“London’s oldest tailor and robe-maker”).

The Old Bailey had until recently tried the most serious or high-profile cases across a variety of the serious crimes. In the past year or so, it has been designated almost entirely as a murder court. The building manager, the “keeper of the court”, Stephen Jones, showed me the whiteboard where they keep a court-by-court list of current cases: it was all murder, murder, murder, rape, manslaughter, attempted murder, murder and so on, throughout the 18 courts.

The long-serving freelance court reporter David St George, who has been working out of the Old Bailey press room since 1969, recalled a young boy appearing for stealing two cream buns. Trials of cake felons are rare these days. Often now it is gang-related murders with several defendants all lined up in the dock together.

St George collected a “what’s on where” court list every morning from the Lists Office when he arrived. He had the lists going back to 1969, all except the ones that had been blown up by the IRA when the press room had taken much of the car-bomb blast - and never used a notebook, making notes on the blank backs of the list sheets that he later typed up as copy.

Jonathan Laidlaw had most recently opened in court 13. A passing reporter had told me I ought to go in there and take a look. “You should check out the honour killing in 13, unless you want to see the 15-year-old psychopath giving evidence next door.” That was court 14, where two women were about to be convicted in the killing of a third teenager, who had died after she jumped out of a window to escape them. Hatice Can was just 13 when she and her then 17-year-old friend Kemi Ajose bullied, abused and tormented Rosimeiri Boxall, the daughter of a vicar. “Serves you right, bitch,” Can had told Boxall as she lay in the street dying following her desperate leap.

Laidlaw told me his honour killing was a good case, a fascinating case, casually betraying a practitioner’s absorption in tragedy. He meant no offence, of course, but you would never tell a family that their daughter’s murder was good or fascinating. In this case her family were the ones accused of killing her. The “proof of life” inquiries carried out by detectives 10 years ago showed that Tulay Goren, a 15-year-old Turkish Kurdish woman then living with her family in Woodford Green, north London, had disappeared off the face of the earth on January 7, 1999. The police had long suspected she had been killed, but her body had never been found. The case was about to be shelved, finally, a few years ago when it was reviewed by officers from the Specialist Crime Directorate, who decided that, even without a body, there was still a case to answer. It is highly unusual to have a trial without a body. In this case there were even greater problems, with no crime scene and virtually no forensic evidence beyond a few hairs on a washing-line rope. The police could not say, and Laidlaw could not say, where or when or how Tulay had been killed, but they argued that the known evidence pointed inexorably to her murder.

Her father, Mehmet, was in the dock, alongside his older brother, Ali, and his younger brother, Cuma. The trio of Goren brothers sat flanked by guards and interspersed with Turkish interpreters. I watched as they sat and smiled and joked quietly with the interpreters, one of them a woman, and I wondered what the jury thought, as they too could see them, sitting there laughing while facing a life sentence for their young relative’s murder.

I saw Tulay’s father giving his evidence, endeavouring to present himself as a man who had fought for women’s rights, who did not believe in the honour code, and had been lying when he told an immigration appeal he had hit Tulay’s boyfriend on the head with an axe because he had felt shame at the boy stealing his daughter’s virginity. That was a lie, he said. He had only hit him with the axe because he lost his temper.

He recalled occasions before his daughter’s disappearance when he had physically assaulted her. There was the day he had slapped her a couple of times. “I may have kicked her as well, but I’m not sure about that.”

Mehmet’s defence barrister sought to arouse the jury’s empathy with his client, eliciting the evidence that he had not liked seeing his son on the street with his hip-hop trousers down his legs and his back exposed when he was supposed to be at school. “That applies to many of us with teenage children,” said the QC. But Mehmet was not a normal parent. His wife had pointed to him in the dock during her own evidence, challenging him to disclose what he had done to their daughter. She too had been arrested on suspicion of complicity in the murder, but instead became a witness for the prosecution. She told the police she had waited 10 years for her day in court. At the verdict only Mehmet was convicted. His brothers went free.

In past centuries, trials were brief affairs, often with brutal outcomes, but nowadays, as in R v Goren, Goren and Goren in Court 13, they often grind out the evidence over weeks of not-always-gripping testimony. A QC apologised during one break for the lack of drama. “I’ve never had a more boring afternoon,” he said.

Trials follow a rigid pattern of short days punctuated by breaks to keep everyone focused: 10.30 start, mid-morning break, lunch, mid- afternoon break, court rise at 4.30 by the latest.

The prisoners go downstairs to their cells at lunch and eat ready meals or packed lunches brought with them from their prisons. Upstairs the judges participate in the daily ritual of the Sheriffs’ Lunch, sometimes known as the Judges’ Lunch. It begins at 13.10 and ends sharp at 13.53 so they can get back for a 2pm start in court.

In the 19th century, the Old Bailey was a small court adjacent to Newgate Prison, and judges and their guests would enjoy orgies of wine and food, often delaying trials late into the night before the judge might return drunk to condemn a man to be hanged. A hanging remained a public spectacle in the street outside until late into the century. Crowds of up to 80,000 would gather and the poor would pelt the victims with stones and rotten fruit and veg while the rich would tuck into hanging breakfasts in overlooking rooms at local inns, such as the Magpie & Stump. In 1807 a pie-seller’s stall overturned and 28 people were crushed to death. A secret tunnel, now blocked at either end, was created between the prison and the church of St Sepulchre’s across the way, to allow the priest to visit the condemned man without having to force his way through the debauched and riotous crowds.

The condemned would be led along Dead Man’s Walk between the prison and the court, and many were buried in the walk itself, which was also known as Birdcage Walk after the lattice iron-work cage that was built around it.

The modern lunches are sober affairs by comparison. It was cottage pie the day I was there. Two courses - no time for more - a starter and a main, or a main and a dessert. Wine is usually served at the lunches, no doubt more for the guests than the judges, whom I suspect need all the help they can get to stay awake and alert through the longueurs of the afternoon sessions.

Each day brings a handful of guests: sports stars, actors, TV presenters from time to time, but more often businessmen and women or city dignitaries. Sometimes they go into court for a few minutes afterwards to watch the show. Years ago I was sitting in Court No 1 when Michael Parkinson and Betty Boothroyd, the former House of Commons speaker and ex-Tiller Girl, suddenly appeared through a side door. They’d come in to watch snatches of the Barry George trial; Parkinson was a BBC colleague of Jill Dando’s.

The Old Bailey is not a public place in the conventional sense but is owned and run by the City of London Corporation, who finance the building itself, the running of it, the staff and the maintenance out of their own resources, gathered from businesses in the Square Mile. HMCS - Her Majesty’s Courts Service - manage the courts and administer the trials themselves, but the rest is down to the City, which brings with it a kind of pageantry expressed in the ancient rituals and titles of the people who work there.

Charles Henty describes himself as being like the managing director of the Old Bailey, but he is not known as the MD, he is the Secondary of London (also Under Sheriff and High Bailiff of Southwark). People sometimes ask him who the Primary is, and he always tells them it’s his wife. (Do you have a wig? I asked him. No, came the sharp reply, it’s all my own.)

An old soldier and old Etonian, Henty travels to and from his home in the West Country on his motorbike. He wears a suit to work, but often changes into his ceremonial garb, breeches, buckled shoes and a tail coat over a ruffled shirt - a get-up itself known as an Old Bailey. His job is part-ceremonial, but is principally to ensure the court runs smoothly, with all its component parts in good order. He likes to say the court is a service that nobody wants but society needs.

After seeing active service with the army and suffering the loss of his brother, a News of the World photographer, Ed Henty, who was killed by the IRA bomb at Bishopsgate in 1993, Henty was already pretty hardened when he came into the job. He disputed my suggestion that he would be “tainted” by the raw material of the work at the Old Bailey, but conceded it took its toll. He would sometimes be invited by a judge to sit in the court, to educate him, as he put it, about certain types of human behaviour. On one occasion he was sitting next to the mother of the victim in a case where the defendant was accused of having sex with the corpse - the woman’s daughter. As Henty said, it was not the kind of job where he could bring in his children to show them Daddy’s office.

Later I sat with the Old Bailey’s most senior judge, the Recorder of London, Judge Peter Beaumont QC, in his chambers, an elegant wood-panelled room behind the courts, drinking tea from china cups while he sat back in the chair behind his desk looking wearied from his day in court. He was the 98th consecutive Recorder since 1298, but not many of his predecessors would have seen the kinds of cases he now tried. He was running a complicated trial with six defendants, gang-related, an Operation Trident case, so-called “black-on-black” crime, which was depressingly prevalent in the Old Bailey lists. Beaumont and his fellow judges had to be “murder ticketed” to try these cases, a qualification dispensed by the Judicial Studies Board. It meant the judges were well qualified and highly experienced at managing such trials, even if, as elderly or middle-aged white men, they were worlds apart from the lives of the victims and the defendants.

Beaumont said he did not know the statistics but he had detected a change in the nature of the murders before the court. There are fewer of the domestic variety - husband kills wife or vice versa - and more of the “multi-handed knife- or gun-related crime” such as his current case. The police have more difficulties getting witnesses into court and rely on special measures, which can hide a witness behind curtains or allow them to give evidence by video link without ever setting foot in the court. New technology evidence, such as cell-site identification, which locates somebody by the position of their mobile phone, is coming increasingly to the fore.

Even though judges can still be sitting by the time they reach their early seventies, they remain alert, Beaumont assured me, not least through their meticulous note-taking as an aide-mémoire to the case summary they will later present to the jury. He accepted the role of ritual in the life of the Old Bailey, as a way of connecting the present to the past and maintaining the link between the building and its owners, the City of London Corporation. Beaumont believed the costume was important as a way of reinforcing the authority of the court and assisting the judge, who did not use a gavel, and had only the force of his personality to keep order. “To that end, he needs all the props he is given.”

Beaumont noted the stress that witnesses and others often experience at the Old Bailey, and when I sat with Matron in her office she confirmed, between the constant ring of her phone from one patient or another, that stress was the biggest affliction she faced in her work.

I remembered Matron from the first trial of Barry George, the man convicted and later acquitted of the murder of Jill Dando. George had kept Matron busy with his unusual complaints, which could be considered extreme forms of stress. He had once groped his way into the dock of Court No 1 claiming to have gone blind - a kind of hysterical blindness. Another time he lost his voice, a condition known as aphonia, which can have psychological causes. Matron, Catherine Waters, would not discuss George with me because of patient confidentiality, but did not appear to have been fazed by his illnesses. She said she never assumed anyone was faking and always called everyone - even defendants (innocent until proven guilty, after all) by their first names. Her office is in the corner of the modern wing of the court, built in 1972, which overlooks the original 1907 building, topped by the dome with the 16ft figure of Lady Justice rising above it. Matron recalled: “I had a defendant in the chair opposite me one day and he looked out of the window and caught sight of Lady Justice. ‘Would that be brass or copper?’ he asked, with professional interest.” (Lady Justice is bronze.)

I went for a pint at Ye Olde London with the reporter David St George. He once drank at the Magpie & Stump with John Mortimer, creator of Rumpole of the Bailey. Rumpole had been a better barrister than Mortimer, said St George. Now the Magpie was a trendy bar (“Rumpole would turn in his grave”) and the court business was not like the old days. Reporters no longer play cricket or practise their golf swing in the corridors; it has been years since St George organised one of his once regular sweepstakes on how long a jury would take to return a verdict.

St George was slippery about his age, but I would guess was in his late sixties, not as old as some judges, perhaps, but older than all the police officers. Like the wigs and the red robes, he is a connection to the past, a former Fleet Street tea boy, now a veteran of all the great Old Bailey trials of recent times, from the Yorkshire Ripper — a “nut or gut” case, according to St George — and Jeremy Thorpe, who used to sit on a rubber cushion he carried with him to ease his piles, to the Soham murderer, Ian Huntley. But St George remembered the smaller cases, not the big ones. He remembered the blagger who stood in the box for 2½ days complaining he had been fitted up by the police. “Members of the jury,” he had said, pointing at the police, “the Old Bill over there, they planted the f***ing lot.”

At two o’clock on the third day, they all came back from lunch, and the blagger abruptly changed his tune, as his barrister went ashen on the bench. “Judge, members of the jury, sorry about this, but actually… I’m as guilty as sin."

Kempen PerlembagaanKu/MyConstitution Campaign comes to Perak!

The MyConstitution Campaign was first launched on 13 November 2009 at the Bar Council, Kuala Lumpur. It then launched the 2^nd phase of the Campaign on 15 January 2010 at Sunway University College, Petaling Jaya. Now, it’s travelling outside of the Selangor and Wilayah Persekutuan regions for the first time. It’s first destination? Perak!

Please come and join us as we sow the seeds of constitutionalism across the nation. Admission is free!

“Separation of Powers: A Constitutional Reality or a Political Myth?”

Jointly organised by the Royal Ipoh Club and Perak Bar Committee

5th February 2010

Royal Ipoh Club, Ballroom

3.00 – 3.10 pm Arrival of guests

3.10 – 3.20 pm Welcome Speech by Shan Theivanthiran, Chairperson, Perak Bar Committee

3.20 – 3.35 pm Why should I support the MyConstitution Campaign Movement? A briefing by the Constitutional Law Committee, Bar Council

3.35 – 3.45 pm Public airing of the Rakyat Service Advertisements 1 & 2

3.45 – 4.30 pm Keynote Speech by Dato’ NH Chan, retired Judge of the Court of Appeal

4.30 – 4.50 pm Media Conference

4:30 – 5:30pm Panel discussion and Q&A with Dato’ NH Chan, Amer Hamzah Arshad and other panelists


For further information, please contact the Perak Bar Secretariat at 05-2537950.

Consciousness - Raising Birth pains

NST Online, 2010/01/31, By Aniza Damis.

It’s easy to take apart a Constitution, but how do you put one together from scratch? And how do you arrive at a document that’s fair to all? ANIZA DAMIS attends a MyConstitution workshop and observes the laborious process of “birth”

IF you had the world to do over again, what would you do differently? Who would you choose as citizens of your new world? And who would you turn down? What rights would these citizens have? And how protected would these rights be? And if you could draft a new constitution, how would it read? These, and more, were what some Law students at Taylor’s University College had to grapple with at a recent MyConstitution workshop.

Entitled Reconstituting Earth v.2.0, the students are told the following: Earth is going to be destroyed soon, and everyone on it will die. But a planet has been identified, “which looks like Earth and sounds like Earth, but we’re not sure if it will be like Earth”. An auto-pilot spaceship has been made, but it can only fit six people. Assuming that the new planet (Earth v.2.0) has no one living on it, a new world order has to be created.

The six people cannot bring anything but themselves to the planet.

Working in groups of eight, the students have to choose six from a list of 25 people of different identities and skills to be the ones to go to Earth v.2.0. The decision for each choice must be unanimous.

“The first module is to challenge the assumptions and stereotyping that we normally have in society — the prejudice and bias against homosexuality, religion, genderdiscrimination and marginalised communities such as the Orang Asli, for instance,” says Bar Council Constitutional Law Committee (ConstiLC) chairperson Edmund Bon.

Edmund Bon (left) briefing the participants.

The workshop is one component of the ConstiLC’s MyConstitution Campaign, which aims to create awareness of the Federal Constitution and constitutionalism.

Before the workshop, Taylor’s deputy vice chancellor Pradeep Nair launched the Taylor’s chapter of the campaign, and gave out 3,000 of the MyConstitution campaign’s Rakyat Guides booklets to deans and heads of its faculties and departments.

“The aim of the module was not to try and change the assumptions or stereotypes or biases that they grew up with. It’s just to prompt them to question whether their assumptions or stereotypes were something which is necessary or feasible or good for society,” says Bon.

The 60 students who took part certainly challenged themselves and their group-mates. Because each choice had to be unanimous, debates on the worthiness of each selection were robust and vociferous.

With one group, for instance, disagreement among all the members was so strong that voices were constantly raised, with members standing up and sitting down in frustration. All they could agree on was that they didn’t agree! What groups chose largely depended on whether survival was the imperative criteria. If it was, then the choices leaned towards a selection which had either a proven fertility (such as the mother with two children and the pregnant actress) and the skill to feed (the fisherman and farmer) or keep people alive (the sinseh and Western lesbian nurse).

An old philosopher and motivator, for instance, did not make the cut because it was expected he would die sooner than a young person. And the classical dancer and musician wasn’t chosen either, because that skill was not needed for survival. Most groups also did not choose the unskilled Orang Asli leader because he was thought to have no skills.

“Your world will have no music, dance or storybooks. My goodness — what a world!” says Bon to the groups who excluded the musician, dancer and author of children’s books.

“Knowledge becomes extinct in a world with no philosopher. You diminish the ethnic pool if you don’t have an Orang Asli.” And while some groups did not look at ethnicity when choosing people for their skills, some did pay attention to it — so as to maintain ethnic diversity in their new world.

One common choice of exclusion, however, was of the religious teacher.

“Which religion?” all groups asked.

“Religion might be divisive” and “Religion only creates war” were reasons given by all to exclude the religious teacher in favour of the spiritual one.

At the end of the first module, Bon says, “Ask yourselves why you chose these people: Do we only value people based only on what they can give us? Don’t look at people just as tools towards an end.” In the second module, some years have passed. Earth v.2.0 has 500 inhabitants and the society is threatened by tyranny.

Therefore, it has to come up with a guide book on how to live and create a government. The groups have to come up with a list of rights and a preamble to a constitution.

This time, the discussion noise-level was louder.

Should rights be absolute? For instance, should an absolute right to life preclude judicial killings? “We only have 500 people — we can’t afford for anymore to die!” was one impassioned argument against the death penalty.

In preparing their preamble, all groups focused on how society should be run, and how to select or elect the right people to be leaders, as well as what transgressions society had to guard against. For instance, how should the Constitution be amended? All groups chose referendum and took the power to amend away from Parliament.

“The Constitution is supreme, so Parliament has no right to override it,” said one participant. “The power is in the hands of the people — everything must be by referendum.” Bon says: “In this module, the groups had to decide what kind of society they wanted. All came back with Rule of Law and how to achieve justice.

“And, in their list of human rights, many of them were the same as those contained in the Universal Declaration of Human Rights (UDHR) — and some went beyond the UDHR. This debunks the idea that the UDHR only contains Western values and rights.” Taylor’s Law School dean Rajeswari Kanniah says: “They learned in a fun and relaxed way what an important document the Constitution is and how it affects their lives in many ways.

“They also learned that crafting a Constitution is no easy task and there has to be a balancing exercise to cater for many competing interests.” In wrapping up the workshop, MyConstitution facilitators Leong Yeng Kong and Mahaletchumi Balakrishnan cautioned participants against taking a good Constitution for granted.

“A country with a beautiful Constitution can exist in anarchy. After we have drafted a Constitution, how do we keep it alive? How do we make sure it doesn’t devolve or fall into disrepute?” asks Leong.

“When you talk about ‘my Constitution’, don’t just talk about what it can do for you.

You have to protect it. How will you defend your Constitution? Think about that,” says Mahaletchumi.

anizad@nst.com.my