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Saturday, July 31, 2010

Interest rate hikes starting to help ringgit

Household consumption is watched even though rates rise has not affected debt repayment

WHEN Bank Negara raised interest rates for the third time this year earlier this month, expectations were that the ringgit would appreciate.

That, together with the removal of China’s yen peg to the US dollar, led to suggestions that the ringgit could regain some of the buoyancy in its value against the US dollar that had seen the local currency emerge as one of the best-performing currencies this year.

There was also the school of thought that suggested those domestic interest rate hikes had created a buffer between rates in Malaysia and elsewhere that might see the local currency becoming a carry trade currency.
While the ringgit is not yet seen as a carry trade currency, its slow ascendency against the US has been seen after the third rate hike earlier this month.

After interest rates were raised by 25 basis points to 2.75% in the July 8 meeting of the Monetary Policy Committee, the ringgit saw a brief spurt against the dollar but has since see-sawed in a narrow band.

But that has changed a wee bit as the ringgit has strengthened to its highest level this year as RM3.18 to the dollar yesterday.

That pattern of trade has somewhat broken away from the initial pattern seen after the yuan ended its peg against the US dollar last month.

After a surge, the Chinese currency has traded within a narrow band of between 6.77 and 6.78 to the dollar.
Notwithstanding the slow rise towards the year high for the local currency, the interest rates hikes in recent months, which the central bank says is a move towards normalisation, has led to money entering Malaysia.

While higher domestic rates might have been the main factor, another was the fact that selected Asian currencies were the flavour of the month, given the economic malaise in Europe and the sluggishness of the US economy.

In a response from Bank Negara to StarBizWeek, the central bank says portfolio capital flows were influenced by both domestic and external factors. Domestically, the impressive 10.1% GDP growth in the first quarter of the year, talk of a stronger economy and the transformation of Malaysia into a high-income economy have whet the appetite of investors.

The central bank said in the first quarter of 2010, portfolio inflows amounted to US$3.4bil, a healthy gain from the US$1.4bil in the fourth quarter of 2009.

“Nevertheless, the pace of portfolio flows in recent months has been relatively modest, given the volatility arising from the European sovereign debt crisis and the lingering concerns over the global economic recovery,” says Bank Negara.

“Overall, the flows have been manageable and well-intermediated by the financial system.”

Bank Negara points out that because of the strength and depth of the domestic financial system, inflows are more effectively intermediated without causing undue risk to the economy.

It cites the fact that the ringgit bond market is one of the largest in this region, with a size of 94.1% of GDP.
Furthermore, the country’s Islamic bond market is also deeper than other markets, with the highest number of sukuk issuances recorded this year thus far.

“At the same time, Bank Negara has developed a robust surveillance system that enables us to monitor capital flows on a near real-time basis and Bank Negara is equipped with a wide range of monetary instruments to sterilise these inflows,” says the central bank.

“Bank Negara’s policy is solely to maintain orderly market conditions while at the same time ensure that the ringgit is not misaligned from its fundamentals so that it will not contribute to the build-up of internal and external imbalances.”

Bank Negara adds that interest rate differentials is a determinant of capital flows, but it is not the only one.
“Some of the other factors include economic growth prospects, exchange rate expectations, anticipated returns in the equity market and other investments, as well as investor sentiments,” it says.

The central bank adds that the overnight policy rate of 2.75% was broadly in line with other regional interest rates and that there are many other countries that have higher official interest rates.

The official borrowing rates of Indonesia, the Philippines, China, India and Australia are 6.5%, 4%, 5.31%, 5.5% and 4.5% respectively.

A recent report by Morgan Stanley suggests that the interest rate hike might also have been used as a tool to attract foreign capital to bolster the country’s foreign exchange reserves, which have not kept pace with the rise seen in the reserves of Malaysia’s neighbours.

Foreign exchange reserves saw a drop in the middle of last year and has basically plateaued from the last quarter of 2009.

While the hikes would lead to more capital flowing in, which is welcomed, considering the quantum of the fall, the country is comfortable with the level of reserves as data for the middle of June says it is sufficient to finance eight months of retained imports and 4.4 times the short-term external debt.

The interest rates hike, however, is seen to have an influence on the real sector as a means to cap skyrocketing property prices.

“One of the major assets facing some strong pressure has been the property market,” says RAM Holdings group chief economist Dr Yeah Kim Leng.

“We needed a tightening to prevent a further build-up in those asset prices.”

The effectiveness of a 75-basis-point rise in interest rates might not quell speculation on properties but with the household sector debt now at 76.6% of GDP, higher repayments for debt taken to buy cars, houses and for other consumption needs would bite into private consumption.

Yeah says the rate hike was a move towards a balance between consumption and savings.

The rise in household debt to GDP was partly due to the contraction of GDP of 1.7% in 2009 but authorities are confident that the financial asset side of the ledger remained sound as financial assets to debt was 2.44 times.

The ratio and growing affluence of households has allowed for increased access to financing and with gross non-performing loan ratio for household remaining low at 2.7% at the end of April 2010, over extension of debt might not be a problem just yet.

By JAGDEV SINGH SIDHU

jagdev@thestar.com.my

Tips on how to get loans

Banks tell how they rate credit worthiness of an application

EVERY year, the SMI Association of Malaysia receives complaints from its members about the difficulties of securing credit.

President Chua Tiam Wee says while companies with good track records do not face a major issue in this area, start-up companies and those with less-than-rosy track records continue to have doors shut on them.

Wee suggests two solutions. The first is his call on banks to evaluate the applications of small and medium enterprises (SMEs) carefully and to try to understand the nature of their business and industry.

The second is a call to empower SME Bank to collect deposits, along the lines of a commercial bank.
“This may then help the bank to increase lending to SMEs,” he says.

Chua says SME Bank currently relies on Government funding and its paid-up capital of about RM1.35bil is very small.

How does a bank rate the credit worthiness of an application?

AmBank (M) Bhd retail banking managing director Datuk Mohamed Azmi Mahmood says banks would generally assess five credit factors of an applicant.

These are character, capacity, capital, condition and collateral.

Azmi says character refers to the borrowers’ “willingness” to repay while capacity refers to their ability to generate adequate cashflow to repay the loan.

The remaining three factors – capital, condition and collateral – can be mitigated or compensated by the favourable economic climate and government-guaranteed schemes such as those under Credit Guarantee Corp (M) Bhd (CGC) and Syarikat Jaminan Pembiayaan Perniagaan Bhd, he says.

Azmi says borrowers must show good character, management competency and ability to repay existing loan obligations and other creditors.

“The lack of credit history for those applying for bank loans for the first time can be mitigated and compensated by relevant supporting documents such as updated financial accounts, bank statements and letter of award,” he says.

He says it is important that SMEs maintain proper book keeping to ensure that these documents are available when required, especially their audited financial accounts. “Loan applications from sectors or industries that the Government is promoting will also have a better chance of having their applications approved,” Azmi says.

He says SME loans make up a fourth of AmBank’s loan portfolio to corporates and enterprises last year.
Hong Leong Bank Bhd group managing director Yvonne Chia says loan applications that show good repayment capacity, acceptable business risks and account performance track records will be considered favourably.

She says financial assistance to SMEs comprised 40% of Hong Leong Bank’s business banking portfolio as at March 2010.

Meanwhile, HSBC Bank Malaysia Bhd deputy managing director (commercial banking and director sales) Thomas Varughese says one of the main reasons to reject an application is the lack of financial information that can show the sustainability or viability of a business.

For instance, he says, many SMEs do not pay enough attention to managing their financial position to portray a picture of success, or to show evidence of business continuity.

This makes it difficult to approve the application, Varughese says.

“Poor credit history of the SMEs, including that of its directors and/or guarantors is another issue,” he says.

Varughese says if the SMEs or their associated directors or guarantors have exhibited poor credit history, which is shown in missing payments on their existing loans including personal loans and credit cards, this will give a negative impression on the overall credit assessment.

To secure a loan, he says, SMEs should have a detailed business plan that explains why the loan is needed in the first place.

“It will also be helpful to provide information about the business (company or management profile), nature of the business and financial statements or accounts for at least the last two to three years,” he says.

Varughese says the provision of well-thought-through cashflow statements can also provide further evidence for the need for the financial assistance, adding that SMEs may visit HSBC website for guidance on how to apply for loans.

He says that as of last year, more than 22% of HSBC’s loan portfolio is SMEs loans.

Varughese says the bank is not keen to finance businesses that may be considered as unsustainable or destructive to the environment.

“At HSBC, we believe that being a sustainable business is not only about delivering profitable long-term growth, but also about maintaining a stable environment and building healthy, educated communities,” he says.

 By LEE KIAN SEONG  
lks@thestar.com.my


Jho Low’s interview captures world attention, Paris `not paid to party` with mystery billionaire, Bringing Hollywood to Malaysian shores

Jho Low’s interview captures world attention

'Penangites have a tremendous ability to succeed" - Lim Guan Eng, CM


  
Jho Low

PETALING JAYA: The world exclusive on Jho Low by The Star has caught the attention of the global media.

Gawker, an American website based in New York City, carried the interview of Low with The Star on its story “Paris Hilton’s mysterious Malaysian party boy tells all”.

The website reported that according to news, Low was paying US$1mil (RM3.18mil) to hang out with her in St Tropez but he told The Star he knew Paris primarily through her parents, whom he had met through his good friend.

The website picked up Low’s explanation on rumours of him renting an apartment in Park Imperial as well as Paris and her sister Nikki accompanying him to St Tropez.

The Newkerala.com, based in India, published the story on Low with the headline “Paris Hilton is just part of group, says Malay­sian businessman”.

The website reported that Low spent a long time in the interview dismissing talk that he was “wasting a lot of money partying”.

A Singapore website asianone.com published the interview with the headline “Paris Hilton’s Malaysian tycoon made his 1st million at 20”

Singapore’s The Straits Times, in its headline “US$1m before graduation”, also summarised the stories published in The Star.

Local dailies as well as news portals and television stations also picked up the interview. Petaling Jaya-based portal Malaysian Mirror headlined its lead story, “Big spender Jho Low speaks up”.

A day after the interview was published, the 28-year-old multilingual Penangite Low continued to get media attention.

New York Post in its story “Paris parties with Jho Low for free”, reported that Hilton denied she had been paid US$1mil to party with Low in St Tropez. Its website quoted a Hilton representative as saying that they were just friends and that Low had invited Paris and her sister Nicky out as friends.

Penang Chief Minister Lim Guan Eng is proud to note the accomplishments of Penangites who are based overseas, including the “well-connected” Low.

“Low is among many Penangites who have excelled internationally. This augurs well for the state as Penangites have shown they have a tremendous ability to succeed when given the necessary opportunities,” he said after opening the three-day National ICT Asso­ciation of Malaysia trade fair at the Penang International Sports Arena here.

Paris `not paid to party` with mystery billionaire


Paris Hilton pays a visit to the Late Show with David Letterman to
 present the 'Top 10 List'. Ed Sullivan Theater stage door in New York 
City. - Johns PkI / Splash News
Paris Hilton pays a visit to the Late Show with David Letterman to present the 'Top 10 List'. Ed Sullivan Theater stage door in New York City. - Johns PkI / Splash News
By Daniela Elser Jul 30, 2010, 19:43 GMT
There is no truth to reports Paris Hilton was paid $1 million to party with a mysterious billionaire in the South of France, the New York Post reveals.

The heiress supposedly received the seven figure payday for whooping it up with Malaysian Jho Low in St Tropez. Rumour circulated that she was hired to lounge topless on his yacht and spray him with champagne at the exclusive club, Les Caves du Roy.

A spokesperson for the 29-year-old has baulked at the suggestion, saying, 'They are friends. Jho has invited Paris and her sister, Nicky, out to St. Tropez as friends. He has not paid her in any way, although he is extremely generous.'

Hilton has been enjoying a break on the Mediterranean.

Bringing Hollywood to Malaysian shores

KUALA LUMPUR: Making Hollywood movies in Malaysia is an important part of Jho Low’s plans to help attract investments to the country.

In an interview, Low tells of how he was getting his Hollywood friends like Academy Award winner Jamie Foxx and Leonardo diCaprio to use Malaysia as a location for movies.

DiCaprio: Among Low’s Hollywood friends who are interested in using Malaysia as a location for their future movies.
 
“They are very interested. It will have a tremendous impact on our tourism profile when this happens,” he said.

Low’s own entertainment company could be investing in such movies as they plan to set up a special entertainment fund that will invest in ventures from fashion to movies.

He also tells of another superstar friend – Usher – who wants to help him start a charity programme for children here to learn the business part of the entertainment industry.

Q: Where does the Wynton Group go from here?

A: Since I am now in the limelight, we expect to launch our new fund sometime in October. Firstly, there is an initial US$1bil real estate and hospitality fund, mainly for investing in real estate, hotels and hospitality projects around the world.
Secondly, we are also looking to launch a US$250mil entertainment fund because we believe there is some synergy between real estate and entertainment.

Q: Are we talking about movies, music or the whole spectrum?

A: The whole spectrum. So anything from fashion to movies and so forth. Lastly, we are also looking into a US$250mil general fund. When I mention all these fund sizes, it is initial first phase equity commitment that we are securing which means that actual fund sizes and purchasing power could be much larger.
An equity of US$1bil could have a potential purchasing power in excess of US$2bil or more after leverage. Coupled with this, our new headquarters will be based in Abu Dhabi and we have committed to 20,000sq ft in Sowwah Island in Abu Dhabi.
We are excited at the growth proposition of Abu Dhabi as a financial hub for the Middle East.

Q: Where is this fund set up?
A: It’s Cayman-based with a fund manager potentially based in either Abu Dhabi or the Caymans.

Q: What is this about you and Usher?
A: I have known Usher for a long time. I met him in New York and I was working with him on Usher’s New Look Foundation which is a charity that assists children who want careers in the business side of the entertainment industry.
I mentor these kids in terms of giving advise on writing business plans, which are things I learnt while at Wharton Business School. We have been talking for the last few months about bringing that programme to Malaysia.
Sometimes it appeals to the younger generation to get inspired by not business people but celebrities who have business acumen.

Q; Do you have a girlfriend?
A: Yes, my girlfriend is my work. Ask my friends and business partners and they will tell you that I sleep only three to four hours a day and I am always working. I love my work.

Q: A businessman once said that to find out where a business is based, all you have to do is to find out where the secretary is based. So, where is your secretary based?
A: My secretary travels with me everywhere I go. So I guess I am based all over the world, although my heart shall always be in Malaysia.

Related Stories:

Low dispels talk he received RM500mil airbase job - I'm not involved









Thursday, July 29, 2010

The World's Most Valuable Brands

From Apple to Goldman Sachs, resilient brands can bounce back to be among the world's best.



It will take more than a problem with antenna reception on the iPhone 4 to affect Apple's brand.

This is a company that has faced setbacks before and bounced back to become the world's most valuable brand--worth $57.4 billion, according to Forbes. In a list dominated by tech brands--they made up 30% of the top 50 ranked by Forbes--Apple ( AAPL - news - people ) squeaked by longtime nemesis Microsoft ( MSFT - news - people ), worth $56.6 billion, and Google ( GOOG - news - people ), which came in fifth on the list with a brand value of $39.7 billion. Steve Jobs' creation is among a number of resilient brands, including corporate ones, that have thrived despite business troubles or setbacks.

Apple shows just how a brand can survive and thrive even when a parent company stumbles. Apple's sales in the late 1990s plummeted 46% over a four-year stretch while the company lost money seven times over eight quarters. The stock was trading for less than $4 (split-adjusted) in 1997 before company cofounder Steve Jobs, who had been ousted, rejoined Apple.


The following year Apple released the iMac, the first in a string of monster hits over a dozen years. Sales over the past 12 months hit $57 billion, and net income was $12 billion. The stock is up 60-fold since 1997.
To identify the world's most valuable brands we looked at more than 100 with leadership positions in their respective industries. Forbes evaluated these brands along with Jeffrey Parkhurst, managing director of business strategy at Mindshare, a WPP ( WPPGY - news - people )-owned media agency. We required that brands have at least some presence in the United States, because if a brand is to be considered global, it needs to be a player in the United States.

Our first step was to determine earnings before interest and taxes for each brand.Forbes averaged those earnings over the past three years and subtracted from earnings a charge of 8% of the brand's capital employed, figuring a generic brand should be able to earn at least 8% on this capital.

Forbes applied the maximum corporate tax rate in the parent company's home country to that net earnings figure. Next, we allocated a percentage of those earnings to the brand based on the role brands play in each industry. (Brands are crucial when it comes to beverages and luxury goods, but not so much, say, with airlines, when price and convenience are more important.) To this net brand earning number, we applied the average price-to-earnings multiple over the past three years to arrive at the final brand value. For privately held outfits we applied an earnings multiple for a comparable public company.

Tech brands made a big showing on this with 30% of the top 50 brands, including four of the first five places in the rankings. Financial service brands and food and beverage brands each captured six spots. U.S. brands dominated the list.

Most large economies saw output decline in 2009, with the E.U., Japan and U.K. all falling at least 4% (the U.S. economy contracted 2.4%). The brands on our list fared a little better, with sales, on average, flat in 2009. Some brands were hit hard by the economic downturn as well as their own missteps.

Take for example No. 11-ranked Toyota ( TM - news - people ). The brand is worth $24.1 billion, but has been troubled over the past year with multiple recalls that affected a total of 10 million vehicles. Toyota's perceived quality score fell 20% in a survey this spring from Santa Barbara, Calif.-based ALG, which is the industry benchmark for residual values and depreciation data. "Toyota always promoted quality, and then [the recalls showed] they delivered exactly the opposite," says Mindshare's Parkhurst, who argues the fallout would not have been as bad if Toyota's brand promise all these years had to do with, say, horsepower.

Barring any more major setbacks, Parkhurst says he believes Toyota can bounce back over the next two years as the backlash against the brand has already ebbed. Even with the cloud of the safety recalls, Toyota sales jumped 17% in the first half of the year.

Company troubles don't always doom strong brands. Consider Marlboro. Cigarette brands have been on the ropes for years as government restrictions have made it increasingly difficult for tobacco companies to market their products. The settlement signed in 1998 between the four largest tobacco companies and 46 state Attorneys General severely limited tobacco marketing and called for the companies to shell out $206 billion over 25 years to the states to pay for health-care costs.

No tobacco brand has thrived like Marlboro since the settlement. The brand ranks No. 8 on our list, worth $29.1 billion. Marlboro's market share in the U.S. was 33.8% at the time of the settlement; today it's 42.8%, which is greater than the next 12 cigarette brands combined. Marlboro's message has been taken out of mainstream media. The brand, owned by Altria ( MO - news - people ) and Philip Morris International ( PM - news - people ), is now marketed directly to consumers and in places where they gather, with help from a database of the names of 25 million smokers.

Goldman Sachs ( GS - news - people ), meanwhile, has been called everything from evil to a vampire squid, but when it comes to investment banks, Goldman Sachs the brand still reigns supreme. It has been the lead bank in global mergers and acquisitions for eight of the past 10 years. Even with an SEC suit hanging over its head (the company has since settled, agreeing to pay $550 million), Goldman was once again the top M&A bank in the first half of 2010. It had an advisory role on $224 billion worth of deals, which represents 20% of global deal activity, according to Dealogic. The brand is worth $9.4 billion, and comes in at No. 45 on our list.

The United Way is the only nonprofit that makes our list, coming in at No. 26 with a brand value of $14.3 billion. The United Way was founded in 1887 and is made up of 1,800 local United Way chapters in 45 countries and territories. The economic downturn affected the charity as it did most other nonprofits, and donations fell 9% between 2006 and 2008. Yet with $4 billion in annual donations, the United Way is twice the size of the next biggest charity, the Salvation Army.

United Way of America CEO Brian Gallagher has transformed the century-old charity since he took over in 2002. At that time 50% of local United Ways defined fundraising as their primary objective, with the rest focused on community impact. Today 90% of United Ways are focused on community impact. In 2008 Gallagher announced a new plan to refocus the organization on three core issues: education, income and health, with specific metrics for measuring success in each area.

The value of brand names may soon take on a bigger role on the balance sheets of U.S. companies, according to James Gregory, CEO of CoreBrand, a global brand consulting firm. In the U.S. brands often get lumped in as part of goodwill when companies are bought and sold, but outside the U.S. brands can play a more prominent role on the balance sheet. The increasing calls for a standardized global accounting system present an opportunity for the role of brands on the balance sheet, says Gregory.

Kurt Badenhausen Research by Sarah Pivo and Ritika Sinha.
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In Pictures: The World's Most Valuable Brands

Researcher's Hack Can Make ATMs Spew Money

Armed with exploits, ATM hacker hits the jackpot

Game over' vulns spew cash on demand

Black Hat A startling percentage of the world's automated teller machines are vulnerable to physical and remote attacks that can steal administrative passwords and personal identification numbers to say nothing of huge amounts of cash, a security researcher said Wednesday.

At the Black Hat security conference in Las Vegas, Barnaby Jack, a security researcher with IOActive, demonstrated attacks against two unpatched models from two of the world's biggest ATM makers. One exploited software that uses the internet or phone lines to remotely administer a machine made by Tranax Technologies. Once Jack was in, he was able to install a rootkit that allowed him to view administrative passwords and account PINs and to force the machine to spit out a steady stream of dollar bills, something the researcher called “jackpotting.”

“It's time to give these devices an overhaul,” Jack told a standing room-only audience during day one of the two-day conference. “There hasn't been a secure development methodology from the get go. The simple fact is companies who manufacture the devices aren't Microsoft. They haven't had 10 years of continued attacks against them.”

In a second attack against a machine from Triton Systems, Jack used a key available for sale over the internet to access the model's internal components. He was then able to use a install his rootkit by inserting a USB drive that was preloaded with the malicious program.

Both Triton and Tranax have patched the vulnerabilities that were exploited in the demos. But in a press conference immediately following his talk, Jack said he was confident he could find similarly devastating flaws – including in machines made by other manufacturers as well.

Jack said he wasn't aware of real-world attacks that used his exploits, but this foiled attack from earlier this year appears to involve many of the same techniques.

“Every ATM I've looked at, I've found a game-over vulnerability that allows me to get cash from the machine,” he said.

To streamline his work, Jack developed an exploit kit he calls Dillinger, named after the 1930s bank robber. It can be used to access ATMs that are connected to the internet or the telephone system, which Jack said is true of most machines. The researcher has developed a rootkit dubbed Scrooge, which is installed once Dillinger has successfully penetrated a machine.

Jack said vulnerable ATMs can be located by war-dialing large numbers of phone numbers or sending specific queries to IP addresses. Those connected to ATMs will send responses that hackers can easily recognize.

Jack called on manufacturers to do a better job securing their machines. Upgrades for physical locks, executable signing at the operating system kernel level and more rigorous code reviews should all be implemented, he said.

The talk came one year after a similar one was pulled last year. Jack said the cancellation came because there weren't patches in place for the vulnerabilities he planned to demonstrate.
He said he was grateful for the extra year to research the vulnerabilities.


By Dan Goodin in Las Vegas MT
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No ordinary Jho Low

World Exclusive!

Mystery man jetsets with Arabs and parties with celebs

KUALA LUMPUR: International Man of Mystery Jho Low, who parties with Paris Hilton and is reputed to chalk up hefty bills for champagne, has finally come out to talk about himself and the life he lives.

In an exclusive interview with The Star, this 28-year-old multilingual Penangite, whose full name is Low Taek Jho, reveals for the first time:


> His Arab childhood friends and investors are actually the spenders, not him;

> How he made his first million when he was just 20 and the billions in deals he had strung together so far;

> The importance of going to the right schools;

> Setting up a portfolio worth billions that will go public in October;

> He parties with Hilton, Megan Fox, Jamie Foxx, Lindsay Lohan and Usher but claims that news reports about the parties are exaggerated.

> How he grew up in Penang and his present globe-trotting life covering Los Angeles, New York, London, St Tropez, Abu Dhabi and Kuala Lumpur.

Related Stories:

A millionaire before graduating
Right place, right time, right people
Paris just part of the group
No website and no Twitter
Low dispels talk he received RM500mil airbase job

Exclusive Source: The Star, By WONG CHUN WAI, WONG SAI WAN and LESTER KONG  







Wednesday, July 28, 2010

Courts and the Constitution

REFLECTING ON THE LAW

By Prof SHAD SALEEM FARUDI

 Our basic charter needs to be interpreted creatively and dynamically. Judges should be receptive to the felt necessities of the times and their interpretations should show suppleness of adaptation to changing circumstances. 

AT the Bar Council’s Biannual Law Conference this weekend, one of the topics slotted for discussion is “Constitutional Interpretation”.

As one of the invited speakers, it is my intention to point out that interpretation is an art and not a science. Legal words do not have a self-evident meaning and the “golden rule” of interpretation is that there are no golden rules.

This is especially so when the clauses of the Constitution are deliberated. A Constitution is not just a lawyer’s document. It is the vehicle of the community’s legal, political and social life. It is the repository of the nation’s dreams and demands and its values and vulnerabilities.

It is a generic law which provides the foundation on which the superstructure of the state rests. It protects fundamental freedoms. It seeks to reconcile the irreconcilable conflict between the might of the state and the rights of the citizens.

The glittering generalities of our basic charter need to be interpreted creatively and dynamically because the Constitution was not made merely for the generation that existed at the time of drafting but for all posterity.

Being a living piece of legislation, its spirit should always be the spirit of the age. Judges should be receptive to the felt necessities of the times and their interpretations should show suppleness of adaptation to changing circumstances.

How have our judges handled our document of destiny? How have they performed their solemn duty to “preserve, protect and defend” the basic charter? Regrettably, the record is not very laudable. In many areas of social life, Malaysians can proudly count many blessings but as to the contribution of the superior courts to constitutionalism, there is not much to celebrate as we approach 53 years of independence.

Despite the principle of constitutional supremacy in Articles 4(1) and 162(6), our courts have shown extreme reluctance to invalidate parliamentary legislation or state enactments on constitutional grounds.


There have been 20 or so cases in 53 years where constitutional review succeeded at some stage of the proceedings. Sadly, eight of these rulings were reversed on appeal. Two were set aside by constitutional amendments. That leaves 10 decisions in 53 years where judicial review of a legislative measure left an impact.

However, in a host of other situations, the courts have refused opportunities to import principles of constitutionalism from abroad that would have limited unrestrained legislative or executive power.

For example, in Eng Keock Cheng, the issue was whether a law-making authority can delegate its powers to another body so broadly as to constitute abdication. The doctrine against excessive delegation, usefully employed abroad, was, however, rejected by our courts.

On the issue of constitutional amendments, the scintillating idea that the amendment process cannot be abused to destroy the “basic structure” (or core principles) of the Constitution was turned down.

A bold High Court ruling, based on Indian precedents, that the Emergency Proclamation issued in 1969 cannot last for ever and can come to an end by efflux of time was brushed aside.

The notion of implied, un-enumerated, non-textual rights has been rejected. In the Aliran case, legislation like the Printing Presses & Publications Act with blatantly unconstitutional provisions was allowed to stand.

It defies constitutional imagination how in a country with a supreme Constitution and a chapter on fundamental liberties a law can confer “absolute discretion” to grant or refuse a printing permit or “to impose any condition the Minister deems fit”.

The reasonableness, justice or morality of any legislation is not the concern of our courts. As long as a law was passed by the competent authority in the proper manner, it is valid irrespective of its content.

This is in contrast with the jurisprudence of many countries that Parliament’s power to enact “law” is circumscribed by the understanding that the term “law” does not refer to harsh or oppressive measures but to rules that are fair and just.

Obviously, the British doctrine of parliamentary sovereignty continues to command loyalty in many judicial minds even though Malaysia is blessed with a written and supreme Constitution.

In its relationship with the executive, the courts have a similar mixed record. There are some extremely bold decisions. For example, in the ISA cases of Tan Sri Raja Khalid, Jamaluddin Othman, Abdul Ghani Haroon, Abd Malek Hussin v Borhan Hj Daud and Thamilvanen a/l Kandasamy the courts issued the writ (order) of habeas corpus to free the detainees unlawfully detained.

Civil servants, workers in the private sector and detainees under various drugs legislation have a very good fighting chance of winning their gladiatorial contests in the courts.

Ouster clauses in industrial relations legislation seek to exclude any judicial scrutiny. Our courts disregard these clauses, as indeed they should, and do justice suitable to the case.

Regrettably, however, denial or delay of the right to legal representation under Article 5(3) has generally aroused indifference. We have a remarkable decision that a detainee’s right to legal representation commences from the time of arrest but cannot be exercised till police have completed their investigation.

The courts seem to have graded human rights. The right to property, protection against double jeopardy and protection against backdated criminal laws are given adequate protection. However, personal liberty, freedom of speech and equality are almost always subjected to wide executive power to restrict on grounds of public order, etc.

Freedom of religion was one of our best protected rights. In a sad reversal in the last 15 years, the courts have turned a blind eye towards many painful and tragic issues surrounding this right.

In many areas of executive power, the courts generally refrain from treading in, and the decision by the state is declared to be non-reviewable. Examples of such areas of absolute power are the subjective satisfaction of the Minister in preventive detention cases; the issuance and continuance of emergency declarations under Article 150; the power to grant mercy and the Attorney-General’s powers under Article 145 to commence or discontinue criminal proceedings or to transfer a criminal case vertically or horizontally to another court.
In many other countries, a rich jurisprudence has evolved to surround these executive domains with humanising principles of openness and accountability.

On issues of apostasy and Islamic law in general, our superior courts are happy to hand the matter over to Syariah Courts even though momentous issues of constitutionality may be at stake. We have an instance of a non-Muslim woman being advised by a superior court judge to submit herself to the jurisdiction of the Syariah Court despite the fact that Schedule 9 List II Para 1 clearly provides that Syariah Courts shall have jurisdiction only over persons professing the religion of Islam.

Despite 53 years, the Constitution has not become the chart and compass, the sail and anchor of our legal life. Its imperatives have not been transformed by the courts into the aspirations of the people.

But there is still hope. Malaysian constitutional jurisprudence has many seeds for growth. Under the leadership of Justice Datuk Seri Gopal Sri Ram and a number of other dynamic judges, public law issues are often seen in the context of constitutional safeguards.

In some cases, issues of natural justice and unreasonableness are linked with the Constitution. This elevation of administrative law issues to the pedestal of constitutional law holds much promise. But we have to wait and see. There are currents and cross currents to keep hope alive.

Prof Datuk Dr Shad Saleem Faruqi is Professor Emeritus at UITM and Visiting Professor at USM.

Tuesday, July 27, 2010

Everybody can be a game developer with Kodu

GAME ON: Some students who participated in the Microsoft's Kodu Kup competition showing off their skills at the company's launch event in Kuala Lumpur.
 
KUALA LUMPUR: Software giant Microsoft Malaysia wants to nurture fledgling game developers from as young as nine through its game design competition, known as the Kodu Kup.

According to its education director Farad Alhusaini, computer games are no longer just for entertainment; they are now also an important educational tool that can spark a culture of creativity and innovation in our youngsters.

For this reason, Microsoft is putting its resources firmly behind the Kodu Kup competition. "Kodu is a fantastic avenue to inspire students to understand the fundamentals and principles of computing and software development," Farad said.

The inaugural competition, which kicked off yesterday, pits students from six schools - Tunku Kurshiah College, SK Taman Putra Perdana, SMK Taman Bukit Maluri, SMK USJ 12, SJK (C) Ladang Harcroft and SJK (C) Chio Nan - against each other.

Participants must develop a computer game using Kodu Game Lab - a simple and visual programming language develop by Microsoft Research.

The program offers a straightforward, fun and easy to use a visual interface, where the users only need to click and string together intuitive icons that define the rules of their game world.

Then, they use a mouse and keyboard - or even better, a gamepad - to navigate the program. No complex programming language to learn and absolutely zero lines of code needed, explained Farad.

"The result is that anyone aged from seven to 70 can create a game in minutes," he said.

Connected

The Kodu Kup competition is a preliminary step to the bigger event that is Microsoft's Imagine Cup. The Imagine Cup is a global competition sponsored by the software giant to encourage university students to develop technology that helps solve the world's problems.

This year, the Imagine Cup final was held in Warsaw, Poland. The Malaysian team did the country proud by beating more than 60 other international teams to make it to the final, in the Software Design category.

"Malaysia needs to start looking among its younger generations to find talented students who will succeed even more in such competitions in the future," Farad said.

"This is where the Kodu Kup competition comes in, he said. "The primary target of most computer games are youngsters, so why not give them the chance to be in the driver's seat - i.e. to create such games, instead of merely playing them."

The Kodu Kup competition will run till Aug 20 and is also open to teachers. Student participants will be judged on creativity, game design, and the fun factor of their games.

Teachers who enter the contest, must showcase how Kodu Game Lab can be used effectively in the classroom, not only to stimulate critical thinking but also how it can help develop problem-solving and logic skills in students.

The aim here is to let teachers inspire and excite their students to learn and experiment, as well as to bring back the "cool" factor in education, according to Farad.

The prizes

Results of the Kodu Cup competition will be announced on Aug 27. The winning student and teacher will each receive a trophy, a notebook PC, an XBox 360 gaming console, as well as various Microsoft software and hardware.

The competition is supported by Yayasan Inovasi Malaysia (YIM), a foundation under the Ministry of Science, Technology and Innovation.

Prior to the launch of the competition, the participating teachers and students had to undergo two-day training sessions with Kodu Game Lab specialists from Microsoft and ideaslab. ideaslab is an organisation based in Victoria, Australia, which serves as a hub for national and international research into learning and teaching technology.

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www.kodukup.com