Standing up for others
Writing letters to right injustices can be a dangerous past time, but it did not deter former Malaysian Bar president Datuk Param Cumaraswamy.
“Standing between authority and subject is always uncomfortable, often dangerous. But that is what we are trained to do.” - Pheroze Nowrojee, Kenyan human rights lawyer. “OMG! DID you hear? A lawyer
kena charged with sedition. He
tulis surat to the Pardons Board to
tukar to jail for death row prisoner under the Internal Security Act!”
“Like dat also sedition meh? Fake news lah!”
That is a likely response in today’s climate of incredulity. But it did happen. Just not today. In 1985, Datuk Param Cumaraswamy was tried for issuing an open letter to the Pardons Board strongly urging the Board, chaired by the Yang di-Pertuan Agong, to reconsider a petition for commutation of the death sentence on Sim Kie Chon under the ISA, for possession of a firearm and ammunition.
In 1983, Datuk Mokhtar Hashim, then Culture, Youth and Sports Minister received the death penalty for the murder of Datuk Taha Talib, the state assemblyman for Tampin, several days before the 1982 General Election. His sentence was commuted to life imprisonment.
Param, the then Malaysian Bar vice-president, called on the Board not to discriminate against Sim, a labourer.
He wrote: “People should not be made to feel that in our society today the severity of the law is only meant for the poor, the meek and the unfortunate, whereas the rich, powerful and the influential can somehow seek to avoid the same severity.”
His prosecution for those allegedly seditious words caught international attention. He was finally acquitted in 1986, scoring a victory for freedom of expression in Malaysia.
“Mr Cumaraswamy was certainly not trying to promote ill-will and hostility between the different classes of the population. In fact, he was urging the Pardons Board not to create the feeling or impression among the population that the Board was discriminating between the different classes,” said the High Court in acquitting him.
If the authorities had thought Param would shy away from writing more letters after he was investigated back in 1977 for sedition, they were wrong. In his first “sedition offence”, he had penned a “strong letter” to the Prime Minister protesting the prosecution of a minor under the Essential (Security Cases) Regulations for possession of a pistol. The ensuing police investigation was par for the course for him.
In an interview with The Star, the 77-year-old who recently received the Malaysian Bar’s Lifetime Achievement Award, says being a lawyer means standing up for others.
He joins the esteemed ranks of the late Raja Aziz Addruse who was the first recipient in 2012 and last year’s recipient, retired Court of Appeal judge Tan Sri V.C. George.
Param, who was born in 1941 just months before the Japanese invasion, was called to the Bar here in 1967 after reading law at Inner Temple in London. He was a Bar Council member from 1974 to 1998, serving as treasurer, secretary, and vice-president, and then as president from 1986 to 1988.
Param was in London around the time the Christine Keeler and John Profumo scandal erupted. His interest piqued, the young man walked into the chambers of the prosecutor, Mervyn Griffith-Jones QC, and asked whether he could sit in the trial.
“The QC agreed, and as a consequence, Param had the opportunity to observe one of the landmark English criminal prosecutions of the time,” said former Bar president Datuk Dr Cyrus Das in reading his citation.
Between 1985 and 1990, Param faced pressure, harassment and intimidation, including death threats for his defence of human rights but he took it all in his stride.
In 1994, Param was appointed Special Rapporteur on the Independence of Judges and Lawyers by the United Nations Commission on Human Rights. For almost a decade, he undertook missions to Colombia, Northern Ireland, South Africa, Slovakia, Saudi Arabia, Indonesia and many other countries.
But while he was getting accolades, awards and respect internationally, Param found himself the subject of long drawn out legal proceedings back home in 1995.
This was the time when some plaintiffs claimed millions of ringgit in damages and got them. Param faced four such mega defamation suits as a result of an interview he gave to a London-based periodical in his capacity as Special Rapporteur on alleged impropriety within the Malaysian judiciary.
A face-off occurred between the Malaysian Government and the UN over Param’s immunity from legal process, necessary for him to be able to perform his job with independence. In 1998, Param resigned from his law firm to protect it and opened his own practice.
Eventually, the International Court of Justice held that he was indeed immune and directed the Malaysian courts to recognise this immunity. In 2001, the suits were withdrawn.
In his acceptance speech, Param credits several people for strengthening his resolve by their unstinting support, starting with his eminent legal team in the sedition trial comprising Raja Aziz, Dr Das, Porres Royan and Darryl Goon (who was recently appointed a Judicial Commissioner of the High Court), family members, the Malaysian Bar and international bar associations.
When he received his award during the Bar’s annual dinner, he was surrounded by his wife Davinder Kaur and son Roberto Shanker. His daughters Shanthi and Deborah who are settled in Kent, England, and San Francisco, respectively, were unable to attend.
Ever proud of the Malaysian Bar, Param says its commitment to the core values of an independent legal profession is “legendary”.
“Having received awards in the past from international bodies, receiving this from the body of my own peers is heartening.”
When Param was called to the Bar, there were hardly 500 lawyers in the peninsula. Today there are around 18,050.
“The Bar has been consistent, it is quite assertive on fundamental issues,” he says when asked how strong today’s Bar is in making a stand.
He notes that the burden on lawyers who fight for an independent profession would be lessened if they were supported by international and other national associations of lawyers.
“That was clearly seen and demonstrated at my trial for sedition in 1985.
“The importance of such support was seen later during the 1988 judicial crisis in defence of the six valiant judges who were unceremoniously suspended/removed.
“At the height of the crisis, (former Lord President) Tun Suffian (Hashim) said that it would take a generation to restore the judicial independence which we then had.” And have we?
“The independence which we lost has not been completely restored,” he sighs.
“The worst form of injustice in any civilised society is the injustice perpetrated through the judicial
process at the behest of the executive arm of the government.”
Param has served on several international and regional bar associations and legal groupings and human rights organisations focussing on the freedom to information and expression, fighting corruption and having clean and fair elections.
GE14 is just days away and Param is watching closely.
The Coalition for Free and Fair Elections (Bersih 2.0) has been busy monitoring every move of the Election Commission and raising public awareness since 2006.
But before Bersih, there was Election Watch.
The ad-hoc group, set up in 1990 just before GE8, was chaired by Tun Suffian. His team comprised former Auditor-General Tan Sri Ahmad Noordin Zakaria, International Movement for a Just World president Dr Chandra Muzaffar, Raja Aziz, senior lawyer
Chooi Mun Sou and Param.
“The Government did not welcome us monitoring the election. Special Branch officers would come up to a couple of us at a ceramah, ask for our ICs and take down our particulars. After a few times I asked them why they kept taking our particulars but they just shrugged,” he says laughing.
“I’m glad there is Bersih today, making in roads into reform for free and fair elections,” he says, adding that it is important for the organisation to remain independent and not be hijacked by the Government or any political party.
Param, who maintains his law practice, does consultancy work these days. Otherwise, this lawyer whose name was synonymous with taking the different branches of government to task for decades now conducts judicial training programmes pro bono in the region at the invitation of international NGOs.