According to a report in FMT, on 18 January 2020, hundreds of people rallied to call for the release 12 Malaysian Tamils detained under the draconian Security Offences (Special Measures) Act (SOSMA) for alleged links to the Liberation Tigers of Tamil Eelam (LTTE). This gathering commemorated 100 days of detention for the 12 men who were arrested under the, commonly called Sosma.
The article also claims that the gathering called on Prime Minister Dr Mahathir Mohamad, Home Minister Muhyiddin Yassin and the Pakatan Harapan Cabinet to release the men and abolish Sosma in keeping with their manifesto promise. I would like to note that, while Harapan promised to abolish some laws SOSMA was not one of these. Indeed, the widely held notion that Harapan promised to abolish SOSMA is incorrect. Here is what Promise 27 of the Harapan Manifesto said on the matter –
…. The Pakatan Harapan Government will also abolish draconian provisions in the following Acts: • Penal Code 1997 especially on peaceful assembly and activities harmful to democracy • Communications and Multimedia Act 1998 • Security Offences (special measures) Act 2012 (SOSMA) • Peaceful Assembly Act 2012 • Prevention of Terrorism Act (POTA) 2015″
So what exactly the people can hold the Harapan government to, depends on an interpretation of the phrase ‘draconian measures.’ In this regard, the manifesto itself states that a Harapan government would “ensure an effective check and balance” by revoking “all clauses that prevent the Court from reviewing decisions of the Government or the laws introduced by the Government.” I suggest that the provisions of SOSMA that allow for police detention without bail before trial are just such ‘draconian measures’, as they grant licence to the agents of the executive to incarce suspects outside of the ambit of judicial review.
In fact, as reported in Bernama, on Nov 29, the High Court ruled that this portion of SOSMA is unconstitutional “because it divests from the courts the judicial discretionary power to evaluate whether or not to grant or refuse bail.” These are the provisions that can be misused, and will be seen to be misused even when they are used with good intent. In the interest of all accused persons and for the good name of the Malaysian judicial process, these provisions must be revoked immediately.
As I have suggested before, the 12 Malaysian Tamils are being held on the basis of charges that, at best, seem to defy logic. As they sit out their 100th day in prison, and while their appeals for bail to work slowly through the courts system, there is, as yet, no credible sign that the LTTE exists. At worst, these charges are based on guile and malice. As Suaram executive director Sevan Doraisamy, is reported to have said on behalf of his organization, “We feel that these arrests are politically motivated.” Please see On Being Malaysian Tamil 7
On July 26th 2017, the Federal application for judicial review brought by Yahaan, Donald Wesley in connection with governmental decisions made in the PETRONAS/ Pacific Northwest Partnership Lelu island development was dismissed. By the time it was made, however, this, once portentous Federal court ruling, was moot as PETRONAS had pulled the plug on its 36 billion dollar project just the day before. The decision by the Justice Robert Barnes, which was reported in the Northern View, was based on his finding that the applicant lacked standing to represent the Gitwilgyoots Tribe. In his judgment, he said, “Yahaan failed to produce evidence of community support” and that “what evidence there is suggests that he is opposed by a substantial number of Gitwilgyoots members,” Wesley had argued that the federal government did not properly consult with him as a one of the nine tribes of the Coast Tsimshian Nation, thereby invalidating the environmental assessment, in which such consultation is mandated. He had asserted that this flawed assessment led to a consequently flawed and invalid Federal approval of the Petronas LNG project in 2016. The judge found that Wesley was not “an appropriate person to act in a representative capacity” because, amongst other reasons, he had failed to prove both his leadership claim and his authority to launch the court proceeding on behalf of the Gitwilgyoots. As such the decision seems not to touch on the larger questions of the standing of a First Nation tribe vis-à-vis the Band Council in the eyes of the courts as well as of the government’s obligation to pay attention to indigenous law, as opposed to the Indian Act, in matters pertaining to the tribal and chieftan authority.
There are presently 3 applications for judicial review brought by Gitwilgyoots Tribe, Gitanyow Tribe and by and SkeenaWild Conservation Trust in connection with the PETRONAS/ Northern Gateway investment proposal on Lelu Island. In considering the reasonableness and good faith of the government’s decision to proceed with this development, it seems clear from the Federal Appeal’s court decision on the matter of the Northern Gateway Pipeline Project that the Crown is obliged to consult with First Nations on whose territories economic developments take place before proceeding with any decision making. There are two specific issues that need to be resolved: –
1. Who should be consulted – which boils down to whose authority the Court recognizes over the lands occupied by the Gitwilgyoots and the Gitanyow tribes. In this matter the Lax Kw’alaams Band Council has launched a legal challenge to the tribal authority of hereditary chief Simogyet Yahaan.
2. What does meaningful consultation amount to – As David P. Ball notes in a Metro Vancouver article, when asked what ‘meaningful consultation’ would look like Chief Malii of the Gitanyow replied: “It means you have to really listen to the aboriginal group, take into account what they’re saying, and you have a discussion … It’s not just having a meeting or writing a letter; it’s an actual exchange.”
The first point goes to the heart of First Nations autonomy as Band Council’s are appointed under the auspices of Canadian legislation, while hereditary leadership in inherent to the native order and relationship with this land. The second point, which is the subject of this post, goes to the heart of the matter of any possible reconciliation with the First peoples on our common abode. It seems to be a matter of good faith and common sense, that recognition of the First Nations should involve some semblance of respect for their jurisdiction. Faith and sense which the details of the Tribes’ applications for judicial review indicate the Crown may not have displayed!