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FREEDOM OF SPEECH ON THE NET - AN ILLUSION OR REALITY?

By Joanna Loy

In an unprecedented development which occurred on 13 March 2009, six persons were charged under Section 233(1) of the Communications and Multimedia Act 1998 (“CMA”) and Section 34 of the Penal Code for posting various comments relating to the Sultan of Perak on various websites on the Internet.

Section 233(1) of the CMA inter alia renders it an offence to make or initiate the transmission of any obscene, indecent, false, menacing or offensive comment or communication with the intention to annoy, abuse, threaten or harass any person.

One of the accused pleaded guilty and was fined RM10,000-00. The others, from various parts of the country, are claiming trial.

Malaysians will recall that about 7 months ago, all 21 Internet Service Providers (ISPs) in the country were ordered by the Malaysian Communications and Multimedia Commission (“MCMC”) to block the controversial Malaysia Today website.

Approximately two weeks after the censorship and after much public outcry, the Cabinet ordered the MCMC to reinstate access to the blocked website.

The latest brouhaha being the recent controversial “Cow’s Head Protest” where the MCMC directed Malaysiakini, an independent news portal, to remove footage and videos of the controversial “Cow’s Head Protest” from its website.

The question which begs to be answered here is this: "Is a free Internet merely an elusive dream in Malaysia?"

Internet censorship has been defined as the control or suppression of the publishing or accessing of information on the Internet. The legal issues in the Internet i.e. an online setting are similar to offline censorship. Hence, the online environment is not a legal vacuum. In general, if something is illegal “offline”, it will also be illegal “online”. In such cases, the relevant existing laws would apply; such as the Sedition Act, the Defamation Act, the Penal Code and Section 233 of the CMA.

THE ROLE OF THE MCMC

The MCMC is entrusted with the role of promoting and regulating the communications and multimedia industry and to enforce the communications and multimedia laws in Malaysia.

The MCMC’s website at www.skmm.gov.my declares that the primary role of the MCMC is to “implement and promote the Government's national policy objectives for the communications and multimedia sector. The MCMC also oversees the new regulatory framework for the converging industries of telecommunications, broadcasting and on-line activities, in accordance with the national policy objectives set out in the CMA …”

The relevant portions of the national policy objectives under Section 3(2) of the CMA are:

(a) to establish Malaysia as a major global centre and hub for communications and multimedia information and content services;

(b) to promote a civil society where information-based services will provide the basis of continuing enhancements to quality of work and life;

(c) to grow and nurture local information resources and cultural representation that facilitate the national identity and global diversity;

(d) to regulate for the long-term benefit of the end user.

Netizens have questioned whether the MCMC has exceeded its statutory powers by ordering the blocking of the Malaysia Today website as Section 3(3) of the CMA expressly stipulates that "nothing in this Act shall be construed as permitting the censorship of the Internet".

Further, the MCMC's actions have cast doubts on the Government's promise in the MSC Malaysia 10-Point Bill of Guarantees to “ensure no Internet censorship”.

CENSORSHIP TOOLS

Malaysians are not alone in their struggle with Internet censorship. All around the world, countries and corporations are finding it to be an uphill task to monitor and restrict access to websites due to the many ways to bypass restrictions for accessing websites.

According to Dmitri Vitaliev of The Guardian, the modus operandi of many nations appears to be to ban access to websites by installing “blacklists” on the entry/exit point of the network i.e. the gateway. These lists contain the names of sites (their URL) and often the IP address of the webserver they are hosted on. Requests for blacklisted sites are processed by the gateway and rejected.

Vitaliev further noted that some countries have taken the extra step to introduce a list of words and phrases to the blacklists. This is how it works: when a blacklisted word or phrase is found on a website’s name or search query, the request to pass through the gateway will be denied. For instance, an Iranian blogger who researched on “annmarie, chandice, chastity, bath, belly, dita or ebony”, found that these terms were disallowed from passing through his internet connection.

How workable this is in reality is another question altogether. Blacklists are only effective when a website is requested directly. If a third party is called to fetch a page’s content, then these lists become irrelevant.

Netizens in censored internet environments cleverly resort to the use of online translations and caching services to access a website indirectly. Others have relied on anonymisers – to conceal your identity from a website – to hide your true destination through the censoring filters. Those who can afford it prefer to skip their country’s network altogether by installing a satellite internet connection. This enables them to circumvent the national gateway and gain entrance into the unrestricted territory.

Be that as it may, governments and corporations continue to play a cat-and-mouse game by blocking translation websites, anonymisers and other proxy servers. Filtering software manufacturers add a “circumvention tools” category to their blacklists, to reside beside pornography and extremism. Netizens continue to use RSS (a method used for the syndication of web content), traffic compression tools and chat rooms to continue the free flow of information. These are blocked by governments and corporations too.

Given the number of tools that can be utilized to circumvent these blockades, the MCMC’s efforts to censor the websites may be futile.

FREE INTERNET - FREEDOM OF SPEECH

The ability to go “undercover” by writing anonymously in an online environment and the advent of blogging have been catalysts for individuals to express their grievances more openly. Ideas and information flow freely and can be transmitted much faster than ever before.

It must be recognised that this new found freedom does not mean the absence of rule of law. Article 10 of the Federal Constitution which guarantees the right to freedom of speech and expression recognises that Parliament may enact laws to restrict this freedom in the interest of security, public order, morality and to prevent defamation.

Likewise, Articles 29(2) and 30 of the Universal Declaration of Human Rights (UDHR) are also clear on this:

· rights and freedoms may be limited by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others;

· rights and freedoms may be limited by law solely to meet the just requirements of morality, public order and the general welfare in a democratic society;

· no State, group or person has the right to engage in any activity or to perform any act aimed at the destruction of any rights and freedoms set forth in the UDHR.

Section 233(1) of the CMA may be an attempt to balance an individual's right to freedom of speech against the legitimate right of others, as recognised by the qualifications to Article 10 of the Federal Constitution and the UDHR.

In view of the qualifications embodied in Article 10 of the Federal Constitution, it would appear that arguments by bloggers that the charges filed against the 6 users of the Internet on 13 March 2009 erode the constitutional right to freedom of speech and expression may not be entirely justified.

Given the many challenges and difficulties with the abuse of the Internet, particularly by extremists and terrorists to further their propaganda and cause, the desire by governments to impose some form of control on the Internet is understandable and perhaps, justifiable.

Unfortunately, legislators are finding it a challenge to keep up. For instance, Section 58 of the Terrorism Act 2000 of the United Kingdom renders it an offence to download material which may be useful to a terrorist. This unfortunately led to the detention of a junior academic at Nottingham University who was legitimately researching terrorism.

Perhaps it is timely, as opined by Jonathan Heawood of The Guardian, for an international treaty on the Internet to underwrite freedom of speech. This may also require the creation of a new body, and an amendment to Article 19 of the International Covenant on Civil and Political Rights to spell out our right to use the Internet, and to expect that use to be as free as it appears to be.

In the absence of greater transparency and accountability on the part of governmental bodies, it remains to be seen how effective state censorship can be. The MCMC’s act of censorship only breeds public resentment and animosity against itself and ultimately the government of the day.

Perhaps the best method of censorship is social censorship as described by Digby Anderson of The Guardian, where it acts against the writers rather than their works and is as concerned with their behaviour as much as their views. In other words, censorship is done by way of social pressure as opposed to state coercion and law. Whether we are ready for it is another matter altogether.

This article originally appeared in Skrine’s Legal Insights Issue 1/2009 and is reproduced with permission.

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Unravelling Practical Issues Surrounding Thin Capitalisation Law in Malaysia

by S. Saravana Kumar

It has been several months since the legislation of thin capitalisation law in Malaysia[1]. The announcement on the introduction of thin capitalisation law was first made in August 2008 by then prime minister Tun Abdullah Ahmad Badawi in his Budget 2009 speech.

Although the government did not initiate any public discourse on this matter, the announcement did not come as a surprise. The local tax industry was abuzz with the government’s intention to introduce thin capitalisation law. Unfortunately, there was no explanation from the authorities as to the need for such law in Malaysia. This is all the more necessary as other trading nations in the Association of Southeast Asian Nations (or Asean) region such as Singapore, Vietnam, Thailand and Indonesia do not have or intend to introduce such legislation in the near future. Both the Budget 2009 speech and Hansard (i.e. minutes of Parliamentary proceedings) are silent in this respect.

Further, it is also very disappointing that the government did not openly engage the public or local tax industry in a dialogue prior to the introduction of that law. Shortly after the announcement, some respectable quarters within the industry questioned the government’s wisdom of introducing thin capitalisation.

This article is not devoted to questioning whether Malaysia requires thin capitalisation law or not. Instead, the focus is on practical issues that remain unresolved in relation to thin capitalisation law in Malaysia. To the best of the author’s knowledge, neither the government nor the Inland Revenue Board of Malaysia (“IRB”) has made an attempt to address these issues.

Firstly, the thin capitalisation provision came into effect on 1 January 2009. That means, legally speaking, the Director General of the Inland Revenue (“DGIR”) may disallow the deduction of “excessive” interest payment as revenue expenditure from 1 January 2009 onwards. That said, the rules or regulations pertaining to the implementation of thin capitalisation law have yet to be issued by the government until today.

The first and foremost question is, “What is the acceptable debt and equity ratio?” The ratio adopted by other jurisdictions is 3:1. Will Malaysia adopt the same ratio or would it opt to be different?

It is likely that details such as this will be contained in the regulations. Eventually, when the thin capitalisation rules are issued, when will it take effect? Will it take effect retrospectively from 1 January 2009?

Since s.140A(4) of the Income Tax Act 1967 [Act 53] (“the ITA”) is already in force, taxpayers are anxious and seeking advice from tax practitioners, despite the fact that thin capitalisation rules have yet to be issued. This puts tax practitioners in a dilemma as the advice or proposal that they suggest may be contrary to the thin capitalisation rules.

This is all the more evident in instances where the taxpayer is subject to higher taxes if the thin capitalisation rules are followed. In such a case, the taxpayer may be subjected to additional taxes and penalty if the IRB decides to apply the thin capitalisation rules retrospectively.

Furthermore, the tax practitioners are also exposing themselves to a possible action under s.114(1A) of the ITA as their advice can be construed by the IRB to have resulted in the understatement of the taxpayer’s tax liability. In light of these potential problems, it would be welcomed if the government does not implement the thin capitalisation rules retrospectively from 1 January 2009.

The IRB has also yet to issue any guidelines or public ruling to guide taxpayers on how it intends to implement the thin capitalisation law. Such guidelines or public rulings are necessary as it provides an insight to the taxpayer on the approach taken by the IRB in enforcing the law.

The self-assessment system, which was introduced in Malaysia in 2001, requires taxpayers to determine their taxable income, compute their tax liability and submit their tax returns. In principle, the self-assessment system has shifted a substantial burden of responsibility from the IRB to the taxpayers. In that regard, it will be helpful if the IRB issues a Guideline or a Public Ruling on thin capitalisation before the thin capitalisation rules are issued.

The key words in the thin capitalisation law, namely, “interest”, “Financial assistance” and “fixed capital”, are not defined. These words are not interpreted in s.2 of the ITA. Recently, at a tax seminar organised by the IRB, the participants were advised that the term “interest” for thin capitalisation law includes guarantee fees, commitment fees, representation fees, commission and borrowing bond fees. However, this definition of IRB contradicts its policy as these types of payments are not recognised as interest for the purposes of business deduction.

Businesses are only allowed deduction for actual interest payment and not other expenditure that are akin or incidental to interest. It is certainly unfair to taxpayers as the IRB seems to be blowing hot and cold on the definition of interest. When it suits the IRB, a wide interpretation is given to the word “interest”. Such an approach is certainly not professional and the IRB must be professional by being consistent with its views. If interest is treated to include guarantee fees for thin capitalisation rules, then it is only appropriate that the IRB allows the taxpayers to deduct guarantee fees paid in the course of business as business expenditure.

Interest paid by a Malaysian taxpayer to a non-resident is subject to withholding tax in Malaysia. If the IRB decided to disallow the Malaysian taxpayer from claiming deduction for the “excessive” interest paid to the non-resident, would the IRB refund the withholding tax on the excessive interest portion to the non-resident?

Otherwise, the IRB will be “benefiting” twice in the sense that the Malaysian taxpayer is not allowed to deduct the “excessive” interest paid to the non-resident but nevertheless, the IRB gets to tax the excessive interest by imposing withholding tax on it. It is only appropriate in circumstances where the excessive interest is disallowed that the IRB refunds the withholding tax on that portion back to the non-resident.

Further, since s.140A reads “in the basis period for a YA the value or aggregate of all financial assistance granted by a person to an associated person who is a resident”, the question arises as to whether s.140A(4) applies to financial assistance that was rendered before 1 January 2009.

The author’s view is that if a loan was made in 2008, it will mean the financial assistance was granted in YA 2008 and not in YA 2009. In that regard, the IRB should not disallow the excessive interest (if any) that is payable in YA 2009 and subsequent years of assessment as the financial assistance was granted before s.140A(4) took effect. Any attempt by the IRB to invoke s.140A(4) on financial assistance that was granted before 1 January 2009 would be ultra vires and against the principles of natural justice. In such circumstances, the taxpayer should consider challenging the IRB’s decision by way of judicial review.

Interestingly, s.140A(4) states that the DGIR may disallow the deduction in cases where he is of the opinion that the financial assistance rendered is excessive. The language used is different from the one used for s.140A(3), which is the transfer pricing provision. Section 140A(3) states that the DGIR may adjust a transaction between associated persons where he has the reason to believe that the transaction is not at arm’s length.

Notwithstanding the difference in the phraseology used for sections 140A(3) and 140A(4), the author opines that the DGIR must state the grounds that influenced him to invoke s.140A(4) against the taxpayer. This will surely enable the taxpayer to understand better why s.140A(4) was invoked and assist the taxpayer in preparing his defence.

Conclusion

The foundation for thin capitalisation rules in Malaysia is weak and it is disappointing that deep thought was not given to this area before legislation was enacted. There are too many questions that remain unanswered and if they are not resolved soon, it will just create confusion among taxpayers, which is clearly not healthy under the self-assessment system.

^* This article was first published in the inaugural issue of TaxViews Asia (July 2009), a tax magazine published by CCH Singapore.

[1] The thin capitalisation provision was inserted via the Finance Act 2009. The newly inserted s.140A(4) to the Income Tax Act 1967 reads:

“Where the Director General, having regard to the circumstances of the case, is of the opinion that in the basis period for a year of assessment the value or aggregate of all financial assistance granted by a person to an associated person who is a resident, is excessive in relation to the fixed capital of such person, any interest, finance charge, other consideration payable for or losses suffered in respect of the financial assistance shall, to the extent to which it relates to the amount which is excessive, be disallowed as a deduction for the purposes of this Act.”

Report on the Young Professionals Night on 24.10.2009

It was that time of the year again, when young lawyers and pupils of the Bar gathered to build bridges with the professionals from the other fraternities.

This year, the Kuala Lumpur Bar Young Lawyers Committee (“KL Bar YLC”) as well as IEM Young Engineers Section successfully organised on behalf of the Young Professional Alliances (YPA) The Young Professional Night on 24^th October 2009 at OM a Malaya café, Annexe Central Market. This event, being one of the most awaited events drew bumper turnouts of 185 tickets, attracting professionals from the KLYLC, Young Pharmacists, Young Engineers Society; and Young MAICSA Society.

The night started at 7pm with the serving of a variety of food to snack on followed by a number of ice breaking games conducted by the Young Engineers.

The organising committee is delighted and overwhelmed by the phenomenal success of the event! Professionals from each fraternity were seen exchanging business cards and sharing professional experiences. The night ended at 12am with fabulous camaraderie fostered between the members of the different fraternities.

The organising committee would like to thank all of the attendees who turned up and made the night a fun-filled event!

Prepared By: Janet Chai

Photos courtesy of Sherrie Razak Dali

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Legal Positivism and the Nuances of Human Rights Implementation in Malaysia

by Roger Chan Weng Keng

This article explores some thoughts on the psychological, legal and political aspect of human rights implementation in Malaysia. While time and space do not allow a complete treatment it seeks to highlight the need to recognise some of the special features of human rights in relation to its implementation in Malaysia.. The position I am defending is Human Rights is not just a matter of pure law. Its tone, coloration and nature are varied and diverse. And that to some extent it must assume a status of being legally unenforceable to make its impact felt. While I focus here only on the right to freedom of assembly, my arguments would equally apply to other human rights issues as well.

The Nature of Human Rights Discourse

I shall begin with a not too unfamiliar scenario: a police officer in star-studded blue haranguing a crowd to disperse from a certain location in the city of Kuala Lumpur. The crowd was peaceful. Yet the officer relied on the belief that there was an unlawful assembly. The ground of his belief would be there was no licence or permit from the OCPD of the relevant Police District as required under section 27 of the Police Act 1967. If that be the case, then to his mind there was also ground for arrest.

However the scenario mentioned tells us something further about what goes on in the mind of that police officer. And whether he knew it or not, his thought processes were like that of a legal positivist. To him, years of training at the police academy had taught him that this was what the law says, and rightly or wrongly he had to implement it regardless of any moral connotations.

But the thought processes of the demonstrators were very different. They were trained not in the academies to think about the laws like that. They were human rights defenders who had specific concerns to voice out and the law that prevented them from so doing was a gross violation of their human rights.

From that little analysis of thought processes we can draw some reasonable conclusions. That the stance taken by the demonstrators effectively takes human rights out of the realm of legal positivism, but still maintains every sense of rightness in accordance with international human rights norms and practices. It also suggests the special role human rights advocacy must play in the defense of universal human rights principles and in the interest of good governance and administration in our country.

The reality of applying for a police permit to do that is not good governance as firstly it paints a picture that Malaysians are not a mature lot to gather peacefully on important issues. Secondly it gives the unwelcome impression that parties, the organisers and the police are not moving towards a cooperative model in regulating assemblies, without need for a permit as practiced in some foreign jurisdictions. Thirdly, governments are elected to protect people’s right, not to suppress them.

Even if we are no expert in John Locke’s theory of natural rights or can’t understand the fine points of the modern human rights movement, the authorities are there to serve the people. So the authority must initiate, not the people in this regard. The first step in the rights discourse is therefore for the authorities to recognise that a right to peaceful assembly is a fundamental human right and to trust others to gather peacefully. They should recognise that freedom of assembly is the peoples’ right; that no single individual, entity or body can claim exclusivity over others. They should not make things complicated and create unnecessary tension through large deployment of FRUs or use teargas and water canons. There could be saving so much in terms of public fund and taxpayers’ money if all this could be done. And there is no need to arrest if nobody is provoking anybody. There is no need to arrest the lawyers of those arrested as they are important stakeholders to ensure justice and fair play are dispensed with.

The question is will the authorities listen?

The Positivist Discourse and the problems it posed to Human Rights Implementation.

The Federal Court in Mohamad Ezam Mohd Noor v Ketua Polis Negara & other appeals (2002) 4 CLJ 309 (FC) has decided that the Universal Declaration of Human Rights (UDHR) has no force of law nor is it binding on Malaysia. Her Ladyship Siti Norma Yaakob FCJ ( as she then was) held

“(at page 386) This begs the question as to whether acceptance of the 1948 Declaration as a non legally binding instrument has changed by virtue of s4(4) of the Human Rights Commission of Malaysia Act 1999. In my opinion the status and the weight to be given to the 1948 Declaration by our courts have not changed. It must be borne in mind that the 1948 Declaration is a resolution of the General Assembly of the United Nations and not a convention subject to the usual ratification and accession requirements of treaties.

Since such principles are only declaratory in nature, they do not I consider, have the force of law or binding on Member States”

At first glance of the above judicial reasoning, we may think that if human rights laws are not codified into our national laws, there will always be a problem to its implementation in our country. We may be led to think that human rights need that element of legal enforceability; otherwise human rights will remain pure fiction.

Added to this concern will be that inexorable challenge from that school of lawyers inclined to adopt a legal-positivist approach to say that the only rights are those that are legally enforceable. They urge the courts not to look at the declarations, instruments, protocols, conventions, and treaties which have not been ratified, acceded or introduced into our domestic laws and harmonised with our legal system. It sounds desirable that human rights should be legally enforceable so as to ensure that they are clear and precise. However this view also misrepresents the character and distorts the true picture of human rights and its advocacy. The very concept of human rights suggests that they should not assume a character of legal enforceability alone. To do so could have dangerous implications to human rights.

If the entire corpus of human rights is legally enforceable we would be appealing only to legal rights instead, and would not need to appeal to human rights. If legal positivism were true there is no way to criticise unjust legal systems and unjust laws. It is vital that human rights have to stand outside that system of legal enforceability (SLE) to launch its barrage of criticism in order to be rights effective. To stand inside SLE would be appealing to legal rights instead and the consequences of doing that would be some steps backward for human rights and its advocacy in a many instances. .

This point cannot be overemphasised if we were to scrutinise the position taken by Suhakam, the highest official human rights watchdog in the country, recently, in relation to the recent mass rally and protest calling for the abolishment of the Internal Security Act (ISA) which allows for indefinite executive detention without trial. It also underscores how the character of human rights advocacy had been misconstrued and not fully appreciated when human rights are placed at the same level as legal rights enforceability without considering the underlining nuances of its implementation. .

Suhakam, did just that recently by standing inside SLE in the face of strong objections from 42 non-governmental organisations (NGOs), which led to their eventual boycott of the Malaysian Human Rights Day.

The position taken to stand inside SLE had resulted in that infamous permit issue sinking deep into the right consciousness of Suhakam. As gathered from an article in the Sun dated 9^th Sept 2009, this Human Rights Commission did not send a monitoring team to the I.S.A. rally on 1^st August 2009 as one of the grounds was that the organisers did not obtain a permit. It even passed a dualistic kind of judgement and considered the assembly as illegal. The chairman of Suhakam was quoted as saying "Suhakam cannot be misconstrued as participating in illegal demonstrations and if we were there even to monitor, we would have also been arrested" Well, my point is this: resurrecting the ghost of that permit issue will be a reality if we choose to stand inside SLE. And the proposition on offer about breaking the law is unattractive when it comes to defence of fundamental human rights. Monitoring as an important arm of the engagement and human rights advocacy process is an important form of such defence.

Devastating effects in dismissing human rights nuances

The devastating part is how can Suhakam reconcile its rights position now, considering just about three years back the report of its Public Inquiry into the Incident at KLCC popularly dubbed “The Bloody Sunday Incident” (KLCC Report) recommended repeal to a substantial number of sub-sections of section 27 and also section 27A of the Police Act, thereby removing the need to apply for any licence or permit to hold a peaceful assembly.

It will be very difficult indeed, if we look into two particular paragraphs of the KLCC report quoted below to shore up the strong human rights position taken by Suhakam then:

Para 35 “ At the domestic level, Section 4 of the Human Rights Commission of Malaysia Act 1999 makes mention of the UDHR stating “ regard shall be had to the Universal Declaration of Human Rights” so long as it is not inconsistent with the Federal Constitution”

Para 36 “ Therefore although Malaysia is not a party to the major international human rights instruments such as the ICCPR, CAT, provisions of which will be cited at length throughout this report, the fact that there are strong arguments that the UDHR has been accorded the level of jus cogens, the rights which are contained in the UDHR which are also similarly contained in these international human rights treaties, particularly to right to freedom of assembly, should be put on the same level and accorded the same status of customary international law.”

The Balance of Power Discourse.

The balance of power position involves the ebb and flow of the political process. Implementation of human rights in Malaysia is motivated to a large extent by political factors. It may not be too bad a thing either because appeal to political rights may serve the ends of human rights and enhance its advocacy. However it would be a big mistake to suggest that the political realm is left to the politicians alone.

The reality is no one can isolate himself or herself, even if he or she chooses to. This brings into sharp focus the role of civil society, human rights organizations, non-governmental organisations, and interest groups to lobby their elected representatives to put up specific human rights agenda for discussion, consultation and adoption. The Human Rights lobbying base, should be widened to include a large segment of the Malaysian populace. Once there is strength in numbers, human rights consciousness could be addressed collectively, thereby more effectively.

At the same time the rudiments of training and education should be drummed up to widen the knowledge base so as to increase the level of right awareness and understand their importance fully.

There is a need to realise that the strength of a lobby group can effectively translate into popular vote. Lobbying in the United States of America for example can make the difference between entry and exit to the corridors of power and with it the hopes and aspiration of the people. We, Malaysians, can realise the same thing if we truly want to stand for accountability, responsibility and transparency. Translated into simple language, it means a better quality of life for everyone.

In this regard a wider proliferation of issue-based groups could mean more engagement taking place on issues affecting ordinary Malaysians.

When lobbying is heard, the powers that be will have to be seen to be working. It’s part of a natural psychology. Now there are talks that the government may amend the law to allow freedom of assembly at designated places like a stadium. This is some news of a kind here seldom heard before. While not wanting to sound cynical, would this have happened if not for the sacrifices of those standing up to their violators, getting tear-gassed and arrested to pay for the price of freedom?

The other alternative would be to remain apathetic like the ordinary apolitical Japanese or German in the period of the last War, and allow people hardly constituting a minute fraction of the entire populace to decide and craft policies on how they should live, think, and behave. As history books were to later show us, the result of this was an unprecedented outrage to the conscience of humankind.

Conclusion

Advancing too much legal positivism, at the expense of Human Rights brings about a conformist psychology just for the sake of conforming. Governments are trusts of the people, not the other way round. They need to listen to voices of dissent, even if in the minority because no government is set up for the majority alone. To do that they have to open up space for human rights discourse with a view to its implementation, because they are voted in to defend freedom, not to suppress it.

Prepared & presented at KDU Law Day on 01.10.2009 by:

Roger Chan Weng Keng

Deputy Chair

Environmental & Humanities Committee

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Admission to the Bar in Kuala Lumpur

1 January - 31 March 2009

We congratulate and welcome the following members to the Bar: