Loyal Followers

Tuesday, March 30, 2010

The Utter Tyranny of Detention Without Trial - a very true and recent story

Most of you may have read that Azean Irdawaty's son, Benjy, was recently arrested for apparently in possession of 800grams of cocaine, and 140grams of methamphetamine. If true, that would make him a presumed trafficker under our law. The death sentence would be staring at his face.

However, they only charged him with being in possession of 0.24grams of metaphetamine. What happened to the 800 grams of cocaine? And 139.76 grams of metaphetamine which he supposedly have?

To top it up, today, the Star reported that the "powder" found was not cocaine after all!

After bail was granted, he was re-arrested under the Dangerous Drugs (Special Preventive Measures) Act 1985. This Act is the drug version of the ISA. It allows detention without trial.

In addition, Amer Hamzah, his lawyer, was manhandled by the police. Lawyers are planning a protest walk tomorrow.

Read Benjy's story as told by his sister, Elza.

On March 11th, he was arrested at his apartment's parking lot in Segambut. Police brought him to an apartment he rented in Kepong, and after entering, claimed that in that residence, he possessed 800grams of cocaine, and 140grams of methamphetamine, and accused him of processing and trafficking, putting him under the risk of being charged under Section 39B, which carries the death penalty.

On March 12th he was remanded for 7 days. When my parents inquired if we can engage a lawyer, the Investigation Officer told us "No need".

On March 17th, after our family waited more than an hour, we were allowed to see him for the very first time, under supervision.

Again my mother asked if we should get him a lawyer, again the I.O advised against it, claiming "Lawyer tak boleh buat apa-apa sekarang. Buang duit je. (Lawyer can't do anything now. It's simply a waste of money)."

On March 18th, his remand was extended another 7 days. The magistrate inquired why there was no lawyer present for him, and whether he was made aware he had the right to a counsel of his choice. He replied "No." Therefore, he requested for one, and only nine hours later, did the I.O call to inform my mother, who promptly engaged Amer Hamzah Arshad. But the very next day, the police used their Executive authority under Section 28A that vetoed his right to a counsel. All requests made by our lawyer to visit him was denied.

Only after we complained to SUHAKAM, did the police allow Amer to visit him.

On the last day of his remand. After the investigations were concluded. For only 15 minutes.

On March 25th, he was brought to court, and charged under Section 12(2) for possession of 0.24grams of metaphetamin in his Segambut residence. Nothing the police claimed they found in the Kepong residence, the cocaine and shabu that was "already packaged to be distributed" or the so called "cocaine processing mini-lab" was brought to court.

Because there WAS none.

He was released on bail. A trial date was set. He was so close to being free, and seeing his 4 year old son again.

But as he was signing the papers of his release, the Plainclothes were outside waiting.

Not two steps after he came out of the bail department, without any explanation, they re-arrested him. Amer was restrained from protecting him, and only after Amer repeatedly asked them to show their I.D, did they do so. Still, no explanation was given to the family. We were merely told to go to the Headquarters and speak to Inspector Kang. The same guy who claimed my brother possessed the cocaine they NEVER found.

He never saw us, he was "in a meeting." He wasn't too occupied to give the press a statement, but was unavailable to see us.

We were told by the new I.O for this case, and the DSP (the guy who signed the papers denying my brother the right to a counsel) that they are detaining him for 60 days under the Special Preventive Measures Act (LPK), after which, they could further detain him for 2 years if found guilty.

Guilty according to THEM. For under this act, it is a detention without trial, like the Internal Security Act. Any information gathered from "witnesses" and "investigations" will never be disclosed to him or his lawyer, or the court. He will also not be able to defend himself against any allegations. Under this act, he will never have his day in court.

On March 25th, my brother, Ben, was denied his Constitutional rights.

For 2 weeks, our family went through hell. Sleepless nights, press waiting outside our door, Ben had asthma attacks after the police delayed themselves in acquiring the requested medication for 3 days, Mama, who is a cancer patient herself, suffered chest pains and lost her voice.

We felt it was all worth it, for we would be able to have him back.

But now, a new nightmare has begun.

Whether or not Ben is guilty, should not be for the Police to decide. If they HAD the evidence to strengthen their warrant for re-arrest, why was it not brought to court? Why is Ben not given a chance to defend himself? How can we ever know the authenticity of these so called witnesses and their statements? If there were ANY to begin with?

Under this act, I could simply be caught for any crimes of drug offences the police accuse me of, because they can claim they have enough information (even if they have absolutely nothing) and detain me. For 60 days, for 2 years, and even EXTEND it after.

Acts like this and the ISA are licenses for ARBITRARY arrest and detention. Anytime. Anywhere. Anybody.

My family and Amer will not back down. We will fight for Ben's right. We will speak up for all of those who were silenced before us, who will be silenced hereafter.

But we seek your help. In any way at all, help us fight this. Re-post this, write on your blogs, write to your local representative, to our newspapers, and together we shall use our voice, our art, our space, to stand up not just for Ben, but for all our rights.

Liberty is a Constitutional right. It's time to get it back.

I have said it many times and I will say it again. Detention without trial is inhuman, unjust and is an affront to civil society. It causes more damage than the damage which it is designed to avert.

And it breeds abuse. And laziness on the part of our authorities. Why bother to investigate when the so caled "bad guys" could be detained without trial?

The above story is but ONE of the thousands of untold stories about detention without trials.

It is but ONE of the agony, anguish and anger which is felt about this utterly uncivilised affront to fundamental liberties.

Do you all want this to happen to you or one of your family members?

Lemme tell ya what's gonna happen...

Oh boy oh boy oh boy. Another by-election (that's by-erection for some people I read about, LOL!!).

Hulu Selangor. Frankly I don't even know where it is. And I am sure many people, like me, do not know where it is.

But soon, Hulu Selangor will be famous. The place will be featured every day and night on TV3 news, RTM 1 and 2 news, Bernama TV news, NST, Berita Harian, Utusan Malaysia, the Star and whatever mass media there are in this country.

And there will be loads and loads of people who will be going there. I mean not ordinary people like you and me. Big people. Like tawdally beeeg people, man. IPs. VIPs. VVIPs. VVVIPs. And their wife too. Or wives, as the case may be.

The people of Hulu Selangor are one lucky bunch I say. Why not? Christmas, to them, comes early this year. I am not saying that the people of Hulu Selangor are Christians la. Or that they are Muslims who celebrate Christmas. After all this is in Selangor. The place where Muslims are easily confused, according to some Ministers.

No. I am not saying that. It was just a manner of speaking. What I mean is they will get a lot of gifts soon. Yeeay! Horray.

I think soon, all the roads in and to Hulu Selangor will be re-paved. Redone. All the pot holes will suddenly disappear. Out of a sudden, lorries carrying black tar and the tar laying machines would appear. People will come out of them lorries and do up those roads. Where there was no budget for doing so for the past 33 years, suddenly the budget will appear. Yahooooo.

Then billboards will spring up. Satu lagi projek kerajaan BN untuk anda. Hell yeah.

Oh. Bridges. How can we forget bridges. There will be new bridges built. Even at places where there will be nobody crossing the river.

The abandoned school project somewhere in the corner of the kampung will suddenly revive. I do not know for a fact that there is an abandoned school project there, okay. But in each district in this country there will surely be one anyway. And so I am just presuming lah. Yes, suddenly the school project, which has been abandoned for the past 27 years will be revived.

Not only that. Every student in Hulu Langat, tidak kira bangsa, will be given a laptop each. Yes. A finkin new laptop each mind you. Just like in Kuala Terengganu, remember? (I wonder what has happened to the promise to give a computer to each student in Kuala Terengganu now that the BN lost that election).

Oh the surau and masjid. Yes yes. How could I forget that. All suraus and masjids in that area will get new lights. And new speakers and microphones. Plus a mighty 2500 watts pmps amplifier. So that they can blast all ceramahs, Quran recitals, azans and whatever and make the people more pious.

It's the hot season now. So they will get air-conditioners too.

Oh, the old folks. And needy ones. Yes yes. There will be bags of beras nasional for them. There will be big and noisy ceremonies where old folks and needy people will be made to endure big yawns over some speeches. Then they will be lining up to receive these bags of rice, some telurs, tepung and ikan masin, courtesy of BERNAS.

And perhaps a free ticket to Akademi Fantasia final. Plus Celcom's gift of free SMS for the people to vote for their favourite Akademi Fantasia contestant. Yeay!

Then someone will launch a Minggu Cinta Hulu Selangor. There might even be a theme song, sung by Dato' Siti Nurhaliza and Mawi (when is Mawi gonna get a Datukship eh?) of course!. And Hulu Selangor will be declared Malaysia's Centre of Eco-whatever. Hulu Selangor will get a 4 billion dollar injection every 6 months from now on. But only if the BN wins. Yes.

Meanwhile, back in Putrajaya and Bukit Aman, warnings will be issued. Nobody will be allowed to mention the "A" word. And please, no "A" mask too. Apart from "A", I think this time other alphabets are going to be banned too. Like "PKFZ". And yes. Lim Kit Siang and Tian Chua et al, please, this is Selangor, no Allah word please. Muslims here could be confused and regard you as Muslims, nanti susah!

Ah yes. The police will ban DAP and PAS from flying their flags or posters in the event PKR runs. Only PKR flags and posters are allowed. Get it?

And PKR ceramahs must be held in a small area. The speakers must not be louder than 91dB per metre watt. Yes yes. On certain nights, the police will raid the ceramahs and prevent the speakers from speaking. Because it has no permit. If it has permit, somehow or other, there will be 800 FRUs surrounding the people who attend the ceramah. To protect them la.

Two weeks before election day, there will be beautiful white tents sprouting all over town. These are like big tents. They will even be air-conditioned. Yes. These will be occupied by policemen. All 6000 of them, in all probability. These policemen are there to ensure public safety and a smooth erection, eh, election, the Home Minister will say.

They will set up road blocks. The whole town will be jammed up. The place will be so safe even an aedes mosquito would not venture out of the longkangs it sleeps in.

Hmmm..what else arr? Oh ya ya. Perkosa. Eh Perkasa. How can I forget them. Ibrahim Ali and his Pergasak fellows will come in drove. They will bring with them a huge Keris Cendana Wan Kembang Belakang each time they go there. Sometime, they will be coming with DrM. DrM will be wearing a small tengkolok ala Hang Tuah.

There will be silat gayung show preceding their speeches. Then the verbal syphilis will take place. Melayu must this and Melayu must that. Melayu owns this and Melayu owns that. Then they will all kiss the Wan Kembang Belakang keris. Then they will distribute some money to the poor in ang-pow packets courtesy of Magnum 4 nombor ekor. Awesome stuff.

After that they will all go to the police station to lodge 45 police reports against whoever. Then they will post for photographs holding a copy of the police reports. Just to prove that they have lodged a police report. Hilarity personified.

After that some of them will go back to KL in Cayenne Turbo. Irony defined.

Erm...apa lagi ek?

Dah abis modal. Korang tambah-tambah lah.

Monday, March 29, 2010

A Critical Look at the Latest Court of Appeal Decision on Detention Without Trial

The Court of Appeal ("CoA") has last week allowed the appeal in the case of Abdul Malek Hussin v Borhan Hj Daud. In doing so the CoA reversed the High Court decision which, among others, found that the detention of Abdul Malek under the Internal Security Act ("ISA") unlawful.

The CoA's decision was, almost as usual, unanimous. Although three Judges heard the appeal, only one judgment was written and read out.

Briefly, Abdul Malek was arrested and detained by the police under the ISA on 25th September 1998. The 1st Defendant (Encik Borhan) testified that he told Abdul Malek at the time of arrest as follows:

"Saya memberitahu plaintif bahawa dia ditangkap di bawah Akta Keselamatan Negara 1960 kerana terlibat dengan kegiatan mengancam dan memudaratkan keselamatan Negara."

"I told the plaintiff that he was arrested under the ISA 1960 because he was involved in activities which threatened and were detrimental to national security" (translation is mine).

Then a written form was issued. It reads:

"Saya Borhan bin Hj Daud (G/7624) pada 25 September 1998 jam 2310 hrs telah memberitahu kamu Abdul Malik bin Hussin No: K/P: 560814-06-5467 sebab-sebab kamu ditangkap di bawah seksyen 73(1) Akta Keselamatan Dalam Negeri, 1960 iaitu:

(a) Saya mempercayai ada alasan-alasan untuk menahan kamu di bawah seksyen 8 Akta Keselamatan Dalam Negeri, 1960; dan

(b) Saya mempercayai kamu telah bertindak dengan cara yang memudaratkan keselamatan Malaysia.

"I, Borhan bin Hj Daud, on 25th September 1998, at 2310 hrs had told you, Abdul Malil bin Hussin the reasons why you were arrested under section 73(1) of the ISA 1960, namely:

(a) I believe there are grounds to detain you under section 8 of the ISA 1960; and,

(b) I believe you have acted in a manner which is detrimental to the security of Malaysia." (translation is mine).

In evidence, Borhan said further:

"Plaintif terlibat secara langsung di dalam perhimpunan haram yang di mana setiap perhimpunan haram tersebut diakhiri dengan kacau bilau dan mengganggu ketenteraman awam."

"The plaintiff was directly involved in illegal assemblies where each of the assemblies ended in chaos and disturbances of public peace." (translation is mine).

That was it. No further or other fact was ever told to Abdul Malek on why he was being arrested and/or detained. No particulars or details were ever given.

Justice Hishamuddin Yunus, at the High Court (now a Court of Appeal Judge) held that the arrest and subsequent detention was unlawful because, among others, Abdul Malek was not told of the ground of his arrest. His Lordship said:

"It is my judgment that, in the light of what I have said above, this form cannot be taken to be due compliance with art. 5(3). In relation to compliance under s. 73(1)(a), the form completely fails to meet the requirement as it mechanically parrots the words of the provision of s. 73(1)(a) without showing that the arresting officer had directed his mind to the requirements of s. 8. I had pointed out this requirement in Abdul Ghani Haroon (No. 3). The form also fails in terms of the s. 73(1)(b) requirement, since the plaintiff was not given the slightest clue or intimation as to what he had allegedly done or was likely to do or was about to do that was prejudicial to the security of the country."

Justice Raus in the Court of Appeal apparently disagreed. I have not read the actual judgment yet. My comment here is merely based on a MalaysiaKini report of his judgment.

Justice Raus was reported to have said:

"It is our view the respondent was informed the grounds of his arrest. The officer gave sufficient particulars and thus did not make the arrest and detention unlawful."

With the greatest of respect to Justice Raus and the other two Judges who agreed with him, I beg to differ.

First of all, Article 5 (3) of the Federal Constitution provides that where a person is arrested he shall be informed as soon as may be of the grounds of his arrest.

Meanwhile, article 151 provides that in a preventive detention case, the person being detained shall, as soon as may be, not only be informed of the grounds for his detention but also the allegation of fact on which the detention order is based. The detained person shall also be given the opportunity of making representations against the detention order.

The allegation of fact may however be withheld if its disclosure would affect national security.

The Federal Court in the case of Mohamad Ezam Mohd Nor & Ors v. Ketua Polis Negara [2001] 4 CLJ 701 held that not only the arresting officer must tell the arrested person the ground for his arrest, the Court has, in addition to that the power the power "to review the sufficiency and reasonableness of the respondent's reasons for believing that there were grounds to justify the appellants' detention under s. 8 ISA and that the appellants had acted or was about or likely to act in a manner prejudicial to the security of Malaysia."

This opinion is also shared by our Supreme Court (which was then the highest Court in Malaysia) in the case of IGP v Tan Sri Raja Khalid bin Raja Harun.

Although the decisions referred to above are in respect of a section 8 detention (as opposed to a police detention under section 73, the same principle must apply. Both these cases, being decisions of a higher court than the CoA, are binding on the CoA and thus Justice Raus.

Now, the question is this. Has Borhan given to Abdul Malek the "ground" for his arrest and detention and inform him of the "allegation of fact" on which the detention was based?

Bearing in mind that article 151 says that Abdul Malek shall be given the opportunity to make representation against the detention order, the "ground" and "allegation of fact" which must be informed to him must necessarily mean "ground" and "allegation of fact" sufficient for him to make such representation.

Otherwise, how was he going to make such representation? How can he defend himself when he does not know exactly what he has done or accused of having done, where, what time and how it was done?

Let's look at the ground given, namely:

  • he was arrested under the ISA 1960 because he was involved in activities which threatened and were detrimental to national security;
  • he was directly involved in illegal assemblies where each of the assemblies ended in chaos and disturbances of public peace;
  • the police believed there were grounds to detain you under section 8 of the ISA 1960; and,

  • the police believed he had acted in a manner which is detrimental to the security of Malaysia

Can Abdul Malek defend himself against those accusations? Can he make a representation against his detention with that sort of information? How did he threaten national security? How was he involved in the illegal assembly? In what way have the assemblies threatened the peace and how was the fact that the assemblies have threatened the peace connected or related to him? Was he in control of the crowd? When did this happen? The date is important because he might have an alibi.

However, faced with the above questions, I would wonder how the CoA could have arrived to its conclusion (as reported by MalaysiaKini) that "the officer gave sufficient particulars and thus did not make the arrest and detention unlawful".

(I must hasten to add however that I do not know how the case was argued before Justice Raus and his brother Judges and whether the above issue was raised in the manner which I am raising it here).

In addition, as stated above, the Court is also imbued with the power to scrutinise the ground proffered by the officer and decide whether that ground was sufficient for Abdul Malek to be deemed a threat to national security.

Has the CoA done so? Taking the officer's case at its best, namely, that Abdul Malek was involved in illegal assemblies which had always ended in chaos and threatened the peace, the Court ought to ask the question whether such allegation was sufficient to warrant Abdul Malek's detention.

How was he so involved? Did he cause the chaos? Were the participants of the assemblies acting under his orders, directions or behest? Did he ask them to create chaos? How big was the illegal assemblies? How rampant were they? Were the assemblies enough to threaten national security? Was it happening all over the country. Was the situation going so out of control that all our baton wielding FRUs and acid-laced water tank were helpless to subdue the crowd?

These are surely pertinent question to be asked when the Court scrutinised the so called "ground" of arrest and detention. Were they asked? If so, what was the conclusion?

With all due respect, I doubt that the ground, as proffered, was sufficient to make anybody, in his or her right mind, conclude that Abdul Malik was a threat to national security.

The importance of the sufficiency of the ground for arrest and detention cannot be understated due to another reason. In Raja Petra Kamarudin v Home Minister, the High Court held that the Home Minister had not invoked his detention power properly thereby making RPK's detention order unlawful and invalid.

In essence, the Home Minister can only invoke his power to detain someone after he is satisfied that that someone is a threat to national security. If that power is not invoked properly, the Home Minister would be guilty of a "jurisdictional error". He would not have invoked his jurisdiction properly. Any detention order issued by him would then be unlawful and invalid.

The same goes with the police arrest and detention under the ISA.

If the ground and allegation of fact, after being scrutinised by the Court, is found to be insufficient to support any conclusion that Abdul Malik was a threat to national security, how could the police in his case be said to have invoked their power properly?

It is also noteworthy that in Ezam's case, the late Justice Abdul Malek held that the detention was unlawful, among others, because the police "had not not really explain the reasons for their 'belief" that there were ground which would justify the detention. The same is the case in Abdul Malek's case.

Which brings me to the next point, which is the "purpose" point. This is also related to "mala fide" or "bad intention" point.

Abdul Malek was, on the face of it, arrested and detained because of his supposed involvement in the illegal assemblies. But it was established during the trial that the police had never interrogated him on that matter. Instead the police were more interested in Anwar Ibrahim's sex life! Justice Hishamuddin said this:

"The plaintiff, on the other hand, furnishes unchallenged evidence that at no time during his interrogation in Bukit Aman were any specific questions put to him that he was connected to any violent act of any kind or planning any specific violent act. He gives detailed and unchallenged evidence of the content of the interrogations he endured for 19 days at Bukit Aman. In summary, it was about his relationship with Datuk Seri Anwar Ibrahim, the plaintiff's role in the reformasi movement, meetings between Nurul Izzah, Dr. Wan Azizah and Keadilan leaders with foreign political leaders, allegations about Datuk Seri Anwar Ibrahim's sexual activities and the plaintiff's relationship with the opposition party, PAS, and Dato' Fadzil Noor, and his views on the ISA. He was told by his interrogators not to file a habeas corpus application. The nature of the interrogation shows clearly its political nature and that it was being done for collateral purposes ie, intelligence gathering for political purposes and nothing to do with genuine concern for national security. This further reinforces the plaintiff's contention that the first Defendant never had a basis at the material time of the arrest (or, for that matter, at any time thereafter) for a reasonable belief under s. 73(1). In other words, the arrest was from the very beginning mala fide."

The same thing happened in RPK's case. He was arrested for insulting Islam. But the police asked him about the Altantuya's murder instead. And they were arguing with him on what he said about Islam being not correct. The interrogation became a debate session on Islam instead.

In Ezam's case, the same thing happened. Justice Abdul Malek observed:

"the police interrogation and investigations conducted on the appellants after their arrest had no connection with the respondent's press statement that the appellants had acted or was about or likely to act in a manner prejudicial to the security of Malaysia. The tenor of the questioning appeared to hinge on irrelevancy."

That makes the arrest and subsequent detention unlawful. That also threw the real intention of the arrest and detention into light. If the real reason for arrest and detention differed from that which was proffered, than the arrest and detention was mala fide.

The MalaysiaKini report also says:

"The court also viewed that withholding Abdul Malek's right to a counsel, while under detention, as alleged a violation under Article 5(3) of the Federal Constitution, does not make the arrest and detention mala fide."

I am surprised, frankly. In this case, Abdul Malek was denied access to legal Counsel for a good 19 days.

The Federal Court in Ezam's case has clearly held that denial of access to Counsel is a factor to be taken into consideration in deciding the legality of the arrest and detention. To top it up, Justice Siti Norma Ya'akob in that very same case held that:

"The respondent's action in denying the appellants access to legal representation for the entire 60 days of their detention under s. 73 ISA was unreasonable and a clear violation of art. 5(3) of the Federal Constitution which violation could not be validated by art. 149 of the Federal Constitution. This denial of legal representation also supported the appellants' assertions that the ISA was being used for a collateral purpose and that there was mala fide on the part of the police in arresting and detaining them. Moreover, the ISA does not contain any provision which proscribes access to legal representation during the 60-day detention period under s. 73"

This decision, coming from the highest Court of the land, is binding on Justice Raus and his learned brothers in the Court of Appeal!

Again, I must hasten to add that I do not know whether these cases were referred to the CoA during the hearing of Abdul Malek's case.

If they were indeed referred to, I really hope that there are distinguishing factors which makes the Ezam's case not binding on the CoA in the Abdul Malik's case. I can't be sure of that at the moment as I have not read the actual judgment of the CoA.

The CoA further went to reverse a finding of fact by Justice Hishamuddin, who found that Abdul Malik was tortured. I can't say much on this aspect of the decision at the moment.

Suffice if I say now that the Court of Appeal can only do so under specific circumstances only. This is because the High Court is in a better position to be a judge of facts because the witnesses were testifying before the High Court and not before the CoA.

The High Court could see the demeanor of the witnesses, their facial expressions and body language. The CoA don't have that luxury.

Therefore the CoA very rarely do so unless the High Court Judge's finding of fact is perverse or is not supported by evidence. The CoA cannot simply reverse a High Court Judge's finding of fact just because the CoA has a different opinion.

I reserve my comment on this aspect until I have read the whole judgment.

I have stated many times that the ISA is a draconian law. It has to be repealed as soon as possible.

The latest decision of the CoA discussed above is an illustration of how draconian, unjust and vicious the ISA is.

A person can be arrested and detained - and probably even subjected to torture, cruel and inhuman treatment -by those who are supposed to protect us under the law. And the arrest and detention can be done merely because the authority "believe" that the arrested person is a threat to national security.

The powers given to the police and the Home Minister under the ISA is absolute. They cannot be questioned. In the case discussed here, even the CoA, the second highest Court in Malaysia, displayed a paralysing unwillingness to question such powers.

Lord Acton once said, "power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men."

Think about it.

Friday, March 26, 2010

In answer to lack of candle-light vigils for Mat Selamat

The ISA has just got to go. Lock, stock and barrel.

The ISA transgresses the very basic right of any human being in a modern society, i.e. the right to be heard. The untold power that is held by the executive to detain a person without trial INDEFINITELY even on the grounds of national security is frightening. And soon that will be abused. And, my God, hasn’t it been abused in Malaysia?

And there is another far more insidious aspect of the ISA — torture. As a legal practitioner, I have come across many allegations of torture. And there is a trend. They get beaten up. Stand naked in front of the air-conditioner while being doused with water for hours on end. Made to drink their own urine. These are consistent allegations. And now these allegations are no more allegations per se.

It has been proven in our High Court. Please refer to Abdul Malek Hussin v Borhan Hj Daud & Others [2008]1 CLJ 264.

The Mat Selamat case and the 10 foreigners recently are just examples of further abuse. Mat Selamat was detained in Singapore for being a threat to Singapore’s security. He was alleged to have planned a bombing of Changi airport. Is he a threat to Malaysia’s security? On what basis did we arrive to the conclusion that he is a threat to our security?

Meanwhile, the 10 foreigners are said to be linked to international terrorism cells. Are these cells planning to do something to our country? Are they threat to our security? They might be a threat to somebody’s security, but whose?

The ISA can only be used, as it is, to prevent threat to OUR security. Why is it being used on these 10 people? If we form the conclusion that they are a threat to us, on what basis did we do so?

You will note that, now, even document forgers, SMS senders and a Melayu who apparently converted to Christianity were detained under the ISA!!! Are they threats to our security? Why can’t we charge them and give them the right to be heard before condemning them to imprisonment?

These are the things which make the ISA draconian.

As to why there are no candle light vigils for them, I do not profess to have an answer. People are motivated in their own individualistic way. But that does not mean that the people want the ISA.

If we want to combat terrorism, why don’t we have an Anti-Terrorism Act, like the British do? I can give you a copy. And you will see how they treat their accused persons. They have surely graduated from the old, dark dungeon days.

We, on the other hand, are not only practising it but trying to perfect the art of dungeon trial and torture.

Wednesday, March 17, 2010

Artikel 153 - menyingkap fakta-fakta sejarah (bahagian 1)*

*The English version of this article may be viewed at this blog and also at the Centre for Policy Initiatives' site.

Di dalam rencana saya, Visiting the Malay "Rights", (versi Bahasa Malaysia boleh dibaca di sini ) saya telah mengupas peruntukan-peruntukan yang terdapat di dalam artikel 153, Perlembagaan Persekutuan. Saya telah nyatakan bahawa mengikut peruntukan-peruntukan di dalam  artikel 153, orang-orang Melayu sebenarnya tidak mempunyai apa-apa "hak" istimewa.

Apa yang wujud hanyalah "kedudukan" istimewa orang-orang Melayu dan juga kaum pribumi Sabah dan Sarawak. Secara 'amnya, kedudukan istimewa itu tidak memberikan apa-apa hak yang diiktiraf undang-undang kepada orang-oang Melayu.

Khususnya, apa  yang terdapat di dalam artikel 153 tersebut  ialah kuasa yang diberikan kepada Baginda Yang di Pertuan Agong untuk memastikan tempat-tempat di pusat pengajian tinggi dan perkhidmatan awam direzabkan untuk orang-orang Melayu dan juga kaum pribumi Sabah dan Sarawak sepertimana ataupun setakat mana yang Baginda dapati munasabah.

Tambahan kepada itu, Baginda juga diberi kuasa untuk memastikan satu kuota untuk orang-orang Melayu dan kaum pribumi Sabah dan Sarawak di dalam pemberian biasiswa ataupun apa-apa permit atau lesen yang diperlukan di dalam apa-apa perniagaan. Kuasa ini juga dilaksanakan oleh Baginda mengikut apa yang difikirkan munasabah oleh Baginda.

Beberapa perkara asas perlu diteliti dan diingati mengenai peruntukan-peruntukan di dalam artikel 153 tersebut, iaitu:

  • ianya tidak memberikan apa-apa hak kepada orang-orang Melayu ataupun kaum pribumi Sabah dan Sarawak. Misalannya, artikel 153 tidak menyatakan bahawa orang-orang Melayu berhak kepada 30% ataupun 50% biasiswa-biasiswa yang diberikan oleh kerajaan setiap tahun;
  • keistimewaan yang diberikan bukan sahaja kepada orang-orang Melayu tetapi juga kepada kaum pribumi Sabah dan Sarawak;
  • kuasa yang diberikan adalah kepada Baginda Yang di Pertuan Agong;
  • di dalam melaksanakan kuasa tersebut, Baginda hendaklah menentukan apa yang munasabah. Itu  bermakna  kuasa  tersebut tidak  boleh dilaksanakan sewenang-wenangnya.

Suntikan elemen "munasabah" di dalam artikel 153 itu sudah tentunya membawa unsur-unsur dinamis dari segi perlaksanaan kuasa yang ada di dalam artikel tersebut. Ini adalah kerana apa yang munasabah pada tahun 1969, umpamanya, mungkin tidak lagi munasabah pada tahun 2010 dan sebagainya.

Satu titik permulaan bagi menyelesaikan kemelut rasa tidak puas hati di semua pihak (samada pihak Melayu ataupun yang bukan Melayu) mengenai artikel 153 ini saya rasa ialah satu perbincangan oleh semua pihak secara rasional untuk menentukan apakah yang boleh dianggap sebagai "munasabah" pada ketika ini.

Selepas itu saya rasa satu perancangan teliti dapat dibuat untuk melaksanakan apa yang termaktub di dalam artikel 153 dengan memasukkan apa-apa formula bagi menjamin  unsur "kemunasabahan" tersebut di masa akan datang.

Dengan cara tersebut, tidak perlulah kita semua terpekik terlolong, menghunus keris dan membuka tapak empat untuk bersilat di sana-sini setiap kali keraguan timbul mengenai imbangan ekonomi antara-kaum yang tidak sempurna di negara kita.

Negara kita ini penuh dengan cerdik-pandai dan para ekonomis yang handal-handal belaka. Dr Jomo Sundram umpamanya, pernah menjadi penasihat ekonomi kepada Bangsa-bangsa Bersatu. Malah kita telah ada angkasawan sendiri. Kapal selam pun kita telah miliki. Mengapa kita tidak gunakan sahaja kepandaian dan kepakaran yang kita ada  untuk mencari penyelesaian?

Sejak kebelakangan ini, isu artikel 153 telah banyak dipersoalkan, malah di putar-belitkan oleh mereka yang seolah-olah tidak tahu menahu mengenai peruntukan-peruntukan di dalam  artikel 153 ini. Retorika yand saban hari ditayangkan oleh media massa adalah hambar dari segi ilmiah mahupun kebenaran. Malah bau politik murahan dan parokial yang datang dari retorika tersebut terlampau kuat dan hampir memualkan.

Salah satu kenyataan yang selalu digembar-gemburkan ialah bahawa artikel 153 ini tidak boleh dipinda. Pada pendapat saya ini adalah amat mengelirukan. Malah, kenyataan ini menunjukkan kejahilan kita mengenai Perlembagaan Persekutuan.

Sebenarnya, mengikut artikel 159 Perlembagaan Persekutuan, artikel 153 sememangnya boleh dipinda dengan syarat bahawa pindaan itu disokong oleh dua pertiga dari ahli Dewan Rakyat dan Dewan Negara pada bacaan kedua dan ketiga. Sekiranya sokongan tersebut diperolehi, pindaan itu hanya akan berkuatkuasa selepas ianya  di setujui oleh Majlis Raja-raja.

Jadi, sekiranya ada pihak-pihak yang mengatakan bahawa artikel 153 tidak boleh dipinda, maka saya ingin sangat melihat bukti yang sebaliknya.

Kita orang-orang Malaysia sepatutnya lebih peka dengan usaha menimba pengetahuan kerana dengan pengetahuan sahajalah kita akan dapati kebenaran. Jangan kita telan bulat-bulat apa-apa yang diperkatakan orang. Dalam hal artikel 153 ini, sebenarnya banyak fakta yang boleh kita dapati daripada himpunan sejarah kita.

Mari kita melawat sejenak sejarah kita mengenai artikel 153 ini.

Adalah diketahui umum bahawa satu suruhanjaya telah diwujudkan untuk menggubal perlembagaan kita. Ianya dikenali sebagai Suruhanjaya Reid (bersempena dengan nama ketua suruhanjaya tersebut, iaitu seorang hakim Inggeris yang terkenal, Lord Reid).

Salah satu tugasan yang diberikan kepada Suruhanjaya Reid semasa menggubal Perlembagaan Persekutuan ialah untuk memastikan kedudukan istimewa orang-orang Melayu dipelihara. Di dalam repotnya dinyatakan (di dalam bahasa asal):

"Our terms of reference require that provision should be made in the Constitution for the ‘safeguarding of the special position of the Malays and the legitimate interests of other Communities’."

Namun demikian, suruhanjaya tersebut mendapati bahawa adalah sukar untuk memberikan keistimewaan khas kepada mana-mana kaum secara kekal kerana keistimewaan khas yang sebegitu akan bertentangan dengan prinsip persamaan di mata undang-undang. Suruhanjaya Reid melaporkan:

"We found it difficult, therefore, to reconcile the terms of reference if the protection of the special position of the Malays signified the granting of special privileges, permanently, to one community only and not to the others."

Malah, pihak Parti Perikatan, yang diketuai Tunku Abdul Rahman juga mahukan Malaya yang merdeka memberikan hak, keistimewaan dan peluang yang sama rata kepada semua rakyatnya dengan tidak mengambil kira kaum ataupun ugama. Tambahan pula, Majlis Raja-raja pula berharap agar konsep komunalisma (perkauman) dikeluarkan daripada ruang politik dan ekonomi kita di suatu hari kelak. Lapur Suruhanjaya Reid mengenai perkara ini:

"The difficulty of giving one community a permanent advantage over the others was realised by the Alliance Party, representatives of which, led by the Chief Minister, submitted that in an independent Malaya all nationals should be accorded equal rights, privileges and opportunities and there must not be discrimination on grounds of race and creed...’ The same view was expressed by their Highnesses in their memorandum, in which they said that they ‘look forward to a time not too remote when it will become possible to eliminate Communalism as a force in the political and economic life of the country’."

Begitulah niat baik dan harapan nenek moyang kita yang sama-sama berjuang untuk mendapatkan kemerdekaan daripada penjajah Inggeris. Perlembagaan Persekutuan pula digubal dengan mengambil kira niat dan harapan tersebut.

Namun Suruhanjaya Reid mempunyai satu lagi masalah. Apakah kedudukan istimewa orang-orang Melayu yang hendak dipelihara itu? Di manakah terdapatnya kedudukan istimewa itu? Apakah garis panduan yang boleh mereka pakai untuk menentu dan menetapkan kedudukan istimewa itu?

Pencarian mereka berakhir apabila mereka dapati bahawa orang-orang Melayu sememangnya mempunyai kedudukan istimewa yang dipelihara sejak mula orang-orang Inggeris datang menjajah Tanah Melayu. Kedudukan istimewa itu sememangnya telah diakui oleh pihak Inggeris di dalam perjanjian-perjanjian asal dengan Raja-raja Melayu. Malah, kedudukan istimewa itu telahpun diberi pengiktirafan di dalam klausa 19 (1) (d), Perjanjian Persekutuan Malaya 1948. Lapuran mengenai perkara ini adalah seperti berikut:

"When we came to determine what is ‘the special position of the Malays’ we found that as a result of the original treaties with the Malay States, reaffirmed from time to time, the special position of the Malays has always been recognised. This recognition was continued by the provisions of cl 19(1)(d) of the Federation Agreement, 1948, which made the High Commissioner responsible for safeguarding the special position of the Malays and the legitimate interests of other communities."

Mereka dapati orang-orang Melayu telah sentiasa mempunyai kedudukan istimewa di dalam 4 perkara:

  • tanah rezab,
  • kuota di dalam perkhidmatan awam,
  • kuota permit dan lesen berniaga, dan
  • kuota biasiswa dan pendidikan.

Semasa membuat lawatan ke Tanah Melayu dan mendengar pendapat-pendapat belbagai pihak sebelum menggubal perlembagaan kita, Suruhanjaya Reid mendapati bahawa tiada sebarang bantahan dari mana-mana pihak sekiranya kedudukan istimewa tersebut diteruskan seketika waktu. Walaubagaimanapun terdapat pihak yang membantah sekiranya ianya diteruskan untuk satu jangkamasa yang lama atau secara kekal.

Setelah mengkaji kedudukan istimewa orang-orang Melayu dan fakta bahawa orang-orang Melayu pada masa itu jauh ketinggalan di belakang kaum-kaum lain dari segi pencapaian ekonomi mahupun pencapaian akademik, maka Suruhanjaya Reid pun memutuskan untuk mengekalkan kedudukan istimewa orang-orang Melayu di dalam Perlembagaan Persekutuan yang akan mereka gubal.

Itulah sebenarnya latarbelakang dan rasional kepada artikel 153 sepertimana yang ada pada masa sekarang. Persoalannya, adakah benar bahawa peruntukan di dalam artikel 153 itu diniatkan untuk menjadi kekal sehingga hari kiamat?

Apakah yang diperkatakan di Parlimen United Kingdom mengenainya? Apakah yang diharapkan oleh Bapa Kemerdekaan kita, Almarhum Tunku Abdul Rahman?

Di bahagian 2, kita akan kupaskan perkara-perkara itu dengan lebih lanjut.

Article 153 on the ‘special position’ of the Malays and other natives: The way forward*

* This article is originally written in Bahasa Malaysia. Helen Ang of the Centre for Policy Initiatives has kindly translated it into English.

In my article, Visiting the Malay ‘Rights’ (the Bahasa Malaysia version can be read here), I had commented on article 153 of the Federal Constitution. I stated that under its provisions, the Malays in fact do not possess any special ‘rights’.

There is only the special ‘position’ of the Malays and the natives of Sabah and Sarawak. In general, this special position does not confer any right which is recognised by law to the Malays.

Specifically, what is contained in article 153 is the power vested in His Majesty the Yang di Pertuan Agong to ensure that places in the civil service and institutions of higher learning are reserved for the Malays and the natives of Sabah and Sarawak as His Majesty deems reasonable.

Additionally, His Majesty is also given the power to reserve a quota for the Malays and the natives of Sabah and Sarawak in the allocation of scholarships, and permits or licences required for business and trade. This power is similarly to be exercised by His Majesty as His Majesty deems reasonable.

A few fundamental premises should be examined and borne in mind regarding the provisions contained in article 153. They are:

  • They do not confer any rights to the Malays and the natives of Sabah and Sarawak. For example, article 153 does not state that the Malays are entitled (as a matter of rights) to 30% or 50% of scholarships disbursed by the government every year;
  • The special position is not only conferred to the Malays but also the natives of Sabah and Sarawak;
  • The power (enabling the quotas) belongs to His Majesty the Yang di Pertuan Agong;
  • His Majesty is to exercise the powers under article 153 as His majesty deems reasonable. This means the power cannot be exercised arbitrarily.

The injection of the element of ‘reasonableness’ in article 153 brings an element of dynamism in the implementation of the powers under article 153. This is because what was reasonable back in 1969, for instance, may no longer be fitting in 2010 and so forth.

A starting point towards dissipating the dissatisfaction currently felt by all parties (whether the Malays or non-Malays) over article 153 is, I believe, to commence a rational discussion to determine what is held to be ‘reasonable’ at this point.

Thereafter, I feel, the implementation of those facets of article 153 can then be carefully planned by incorporating whatever equitable formula guaranteeing the element of ‘reasonableness’ in time to come.

In this way, there will be no need for all of us to have shouting matches, wield the keris and to ready the arena for a silat fight here and there every time there is doubt that the economic balance between the races falls short of the ideal in our country.

Malaysia has our fair share of the intelligentsia and learned economists. Dr Jomo Sundram, for example, is a senior official at the United Nations secretariat. We even have our very own astronaut. We have submarines in our naval fleet. Why don’t we just employ the wisdom and expertise which we possess to resolve this matter of article 153?

Lately, the issue has raised a lot of hackles and even been distorted by those who appear to be ignorant of its provisions. The trite rhetoric daily purveyed by the mass media is bereft of academic credentials and far from factual. The cheap politicking and parochialism emanating from this rhetoric is so pungent as to be nauseating.

One of the popular assertions is that article 153 cannot be amended. This claim is, in my humble opinion, very confusing and merely reflects ignorance of the Federal Constitution.

According to article 159 of the Federal Constitution, article 153 can in fact be amended on the condition that the amendment is supported by two-thirds of the members of the Lower and Upper Houses in its second and third reading. If this support is obtained, the amendment may only take effect after it is approved by the Council of Rulers.

Therefore, if there is anyone who insists article 153 cannot be amended, I would be glad to be proven otherwise.

We as Malaysians should be more sensitive to any efforts made to gain a deeper understanding of various matters because it is only through knowledge can we arrive at the truth. Don’t simply swallow wholesale what people say. On the subject of article 153, there is a lot we can learn from history.

So let’s revisit history on it.

It is common knowledge that a commission was established to draft our constitution. This commission is known as the Reid Commission (named after its head, a renowned English judge, Lord Reid).

In drawing up the Federal Constitution, the Reid Commission was assigned the task to ensure that the position of the Malays was safeguarded. Its report says:

Our terms of reference require that provision should be made in the Constitution for the ‘safeguarding of the special position of the Malays and the legitimate interests of other Communities’.”

Nonetheless, the commission found it difficult to give a special preference to any single race permanently because such a special preference is contrary to the principle of equality in the eyes of the law. The Reid Commission reported:

We found it difficult, therefore, to reconcile the terms of reference if the protection of the special position of the Malays signified the granting of special privileges, permanently, to one community only and not to the others."

The Alliance front led by Tunku Abdul Rahman had also wanted independent Malaya to confer equal rights, privileges, and equal opportunities to all its citizens regardless of race or religion. Additionally, the Council of Rulers had hoped too that the concept of communalism would be eventually eradicated from the country’s political and economic spheres. In relation to this, the Reid Commission reported:

The difficulty of giving one community a permanent advantage over the others was realised by the Alliance Party, representatives of which, led by the Chief Minister, submitted that in an independent Malaya all nationals should be accorded equal rights, privileges and opportunities and there must not be discrimination on grounds of race and creed ...’ The same view was expressed by their Highnesses in their memorandum, in which they said that they ‘look forward to a time not too remote when it will become possible to eliminate Communalism as a force in the political and economic life of the country’.”

Such was the hope and good intentions of our forefathers in their common struggle to obtain independence from British colonialism. The Federal Constitution was formulated in cognizance of these intentions and aspirations.

This notwithstanding, the Reid Commission was presented with yet another difficulty. What was in actuality the special position of the Malays that was to be preserved? Where was the special position to be found? What guidelines should they have used to determine and establish this special position?

Their search ended when it was discovered that the Malays had always enjoyed a special position even from the start of British colonisation. This special position was already affirmed by the British in their earlier treaties with the Malay rulers. This culminated in the recognition of the said special position in clause 19(1) (d) of the Federation of Malaya Agreement 1948. It was explained as below:

When we came to determine what is ‘the special position of the Malays’ we found that as a result of the original treaties with the Malay States, reaffirmed from time to time, the special position of the Malays has always been recognised. This recognition was continued by the provisions of cl 19(1)(d) of the Federation Agreement, 1948, which made the High Commissioner responsible for safeguarding the special position of the Malays and the legitimate interests of other communities.”

They found that the Malays had always enjoyed a special position in four areas:

  • Reserve land,
  • Quota in the civil service,
  • Quota in permits and trading licences, and
  • Quota in scholarships and education.

When they visited Tanah Melayu to solicit the views of the various parties before proceeding to draft our constitution, the Reid Commission did not meet with any objections from any parties for this special position to remain although there were some quarters that objected to it being extended for a long period of time.

After studying the special position of the Malays and the circumstances of the Malays who at that time were lagging behind the other races in the economic and education sectors, the Reid Commission decided to retain the Malay special position in the constitution that they drafted.

This is the background and rationale behind article 153 that we have with us today. The question now is whether it is true that the provisions of article 153 were meant to be maintained for perpetuity.

But what was said in the British Parliament about this? What was the wish of our Father of Independence, Tunku Abdul Rahman?

We will look into the details in Part 2.

Tuesday, March 09, 2010

The Rhetoric of Oppression*

Umberto Eco, in his article, "The Wolf and the Lamb - The Rhetoric of Oppression" (from which the title to this article is borrowed), posits that often enough, an oppressor - such as a dictator - would try to legitimise his oppression. He or she will even try "to obtain the consensus of those he is oppressing, or to find someone who will justify it" by using "rhetorical arguments to justify his abuse of power."

(At this juncture, I would like to add to Eco's example of an oppressor. In addition to a dictator, I would add a "totalitarian democrat", who is a so called leader elected through a controlled democratic process. I would also add to the list what Rawls terms as the "benevolent absolutist").

The need for legitimisation of an act or acts of oppression, to my mind, stems from the desire to justify such acts  which in turn is driven by  purely egoistical motivation, or perhaps is due to a deep feeling of guilt. Added to that must be the desire to gain acceptance of the people and to pander to the middle class intellectual probing.

Whatever the reason for the attempt to legitimise, at the end of the day, the rhetoric of the oppressor, to the reasonable and probing minds, would often come  out as completely lame and curious - sometimes even ridiculous, stupid and laughable - babbles.

That is because of the nature of the oppressor. He is so used to getting and doing what he wants without so much of a necessity to justify any of his actions. He thus develop this inability to answer properly when questioned; to engage when called  to question; to debate when argued against.

The oppressor rules with absolute subservience from his minions. He is the supreme leader. He is an idol of the people. His wishes are his people's commands. All the years of absolutism contributes to his feeling of being infallible. That in  turn numbs his mind and thought process.

Darwin's evolution theory has proven that when any particular  biological or physical  mechanism is not used or needed for some time, it will soon disappear from the being. That is true with the oppressor. Soon, he ceases from being a thinking creature.

All that matters to him is the untold power which he wields. And the idolatry which he enjoys.

Thus the  legitimisation of his acts is actually unnecessary. It is not a rational act. Or a rationalisation process. There is no need for such process. Because at the end of the day, all that matters to the oppressor is the achievement of a goal. And that is already assured and ensured. Not much care is then needed in the process of legitimisation.

Being so, when an oppressor tries to legitimise his oppression through rhetoric, it often sounds curious and ridiculous to the reasonable people. Needless to say, they often fall flat.

Eco, in his work, gives us a classic "pseudorhetoric of oppression" in the form of Phaedrus' fable of the wolf and the lamb.

In the tale, a thirsty wolf and a lamb came to a stream. The wolf was drinking upstream and the lamb was downstream. The wolf, ever the oppressor that he was, sought to start a quarrel.

"Why are you muddying the water I am drinking?", said the wolf.

If we stopped here, we could see the utter ridiculousness of the would-be oppressor's starting line. How could the lamb, who was downstream, muddy the water which the wolf was drinking upstream? But the wolf, as with any oppressor, does not care about reasonableness of arguments. Reasonableness is only for the weak.

The lamb, however, represents a picture of reasonableness, when he sought to rationalise with the wolf. He answered, "I am sorry, but how could I do that? I am drinking the water that has passed you first."

That is a polite answer. It is also an answer which any sensible member of a civilised society would offer to the oppressor's rhetoric. Faced with such sensible - and probably irrefutable - rebuttal, the wolf changes the goal post and employs another line of attack.

"Six months ago, you talked about me behind my back," charged the wolf.

To the reasonable mind, this is something which is totally unrelated to the first line of attack. It reflects the oppressor's inability to engage in any meaningful debate about a stand taken by him. When faced with such situation, the oppressor would create a new attack in a reckless manner.

The recklessness in the oppressor's reply shows when the lamb said, "but I wasn't even born yet six month ago!".

Again, the oppressor's inability is exposed. He is shamed but not ashamed. That is due to the power which he wields and the obvious differences in physical prowess between the oppressor and the oppressed. The wolf would again change his charge.

The wolf, this time with impatience, said, "by Hercules, then it was your father who spoke badly of me."

With that statement, the wolf pounced on the lamb, killing it before eating it up.

How frightening!

Regardless of the simplicity of the tale, the reflection of the oppressor's mind and how it works in that tale is paralysingly frightening. The almost nonchalant attitude towards the exercise of extreme power by the strong and mighty over the weak and meek is symptomatic of any oppression.

Throughout the Malay classical literature, we could see for example,  the child Hang Nadim, who saved Temasek from the dreaded "ikan todak" (sword fish"), being executed for being too smart and therefore a possible threat to the Sultan. When Hang Tuah was perceived as being favoured by the Sultan more than any others, he was accused to have partied with the Sultan's "gundek" (concubine) and he was sentenced to death.

In not too far a time before, for some reason or other, the regime wanted Tun Salleh, the Lord President,  be sacked. That was the opening line as provided by the wolf. To which, Tun Salleh asked, "why?"

The answer was, "because you have signed a resignation letter."

The reply was, "but I have changed my mind, because I was under pressure."

The final rebuttal, before Tun Salleh was dismissed was, "you have to resign because you have abused your power by bring your son to the authority to request a fishery license. You also have to be sacked because you promote Islam and Islamisation in your judgments and speeches."

The utter ridiculousness and unreasonableness of the rhetoric did not matter. Because the oppressor had no ability to rationalise. Nor did he see the need to do so.

Later, Anwar Ibrahim had to go as the DPM.

"What did I do?", asked Anwar. That was the sensible and reasonable lamb asking the wolf who was starting a fight.

Just like the wolf accusing  the lamb of bad mouthing him six months ago, Anwar was told that he had to go because he had committed sodomy.

The lamb, in the fable above said he wasn't even born yet six months ago.

Anwar,  said "but the apartment in which I was to have committed sodomy wasn't even completed yet at the time you said I committed sodomy!"

Notice the uncanny similarities between the fable and the event which had actually happened?

Faced with that, the oppressor changed his story, just like the wolf. "Okay, but you did commit sodomy at that place on a different date. And I have the mattress too."

With that, the lamb was pounced on, killed and eaten up.

Contemporary Malaysia is filled with stories of oppression and denied justice. The rhetoric of oppression has been perfected and repeated to utter death.

"You are too noisy and please shut up," said the wolf.

"What have I done?", asked the people.

"You have insulted Islam and are a threat to national security," came the answer.

Or, "you have to be detained for your own safety," came the mind-numbingly curious answer.

I could go on and on. But I would just sound like a horribly scratched CD.

The question is, what is the lamb going to do about it?

Yes.

What is the lamb going to do about it?

* Based on Umberto Eco's "The Wolf and the Lamb - The Rhetoric of Oppression" (Turning Back The Clock, Harvill Secker, 2007).

Friday, March 05, 2010

Of sodomy, caning and potato chips

Some months ago, my learned friends, Fahri Azzat and Amer Hamzah appeared in the Court of Appeal to argue an appeal. They were representing a man who was found guilty of sodomising a boy. He was sentenced to 60 years of imprisonment and 22 stroke of caning although  he  maintained that the sodomy acts were consensual.

During the appeal, the two lawyers brought up constitutional issues which have never ever been brought up before. As these issues were never brought up before, it follows that there has never been any judicial pronouncement on those constitutional issues. Those issues are:

  • the law provision which makes the act of sodomy illegal is unconstitutional as it transgresses the right to privacy, which is a part of our fundamental liberties;
  • the act of  criminalising and penalising the act of sodomy, when it is consensual, amounts to an act of discrimination and inequality, especially against men with homosexual tendency. As discrimination on the basis of, among others, gender, is prohibited by the Constitution, it follows that the criminalisation of consensual sodomy is unconstitutional;
  • the caning sentence is also discriminatory in nature as under the law women cannot be caned.

Now, I am not going to touch on whether the arguments were correct or not. But these arguments were taken up for the very first time in our legal history. Furthermore, they were taken up in the second highest Court of the land, namely, the Court of Appeal.

It goes without saying that the Court of Appeal should have seen it fit to hear the arguments in totality. Then it should consider the arguments in depth. Then it should decide on the arguments. After that, it should write a proper and well reasoned grounds for its judgments so that the people know what it was thinking and how it came to such thinking.

That decision would have been one of the most important decision in our Constitutional law. It will serve as a precedent and as a guideline to all of us Malaysians, to the police, the AG Chambers, to legal practitioners, law lecturers and law students alike.

Guess what happened? Fahri was cut short in the middle of his constitutional issues/points. The learned Judge asked him to stop arguing midway through his arguments. He was asked to go to the next point. After hearing the both of them, the Court of Appeal dismissed their case there and then.

Quite obviously, the Court of Appeal did not think much of the various constitutional issues - which touched on the people's constitutional rights - which were raised for the first time.

It was reported that one of the learned Judge said, "are you saying that (homosexuality) among consenting adults is legal? In other words, what happens in the bedroom is none of the government’s business?" during the hearing.

Needless to say, no written judgment was given until the time I am writing this (5th March 2010).

As that particular criminal matter originates from our Sessions Court, no further appeal to the Federal Court could be made.

In my opinion, the failure to give a reasoned judgment in a matter involving such important constitutional issues is a loss opportunity. It reflects a nonchalant attitude towards every argument which is deemed "new" or "unconventional" by the Court.

We are therefore stuck in conservatism and the law - which is supposed to develop as time passes by in order to reflect a currency of approach - lies stagnant within the robes and wigs that Judges wear.

On the other hand, the Court of Appeal in the UK sat to hear a question on whether the snack product Pringles is similar to a crisp and made from the potato and therefore subject to standard-rate VAT.

After a long and laborious arguments, the UK Court of Appeal considered what was branded as an "Aristotelian question" and came up with a judicial pronouncement which is not only well reasoned but also a delight to read.

The learned Judges thought that "the issue of classification should not be given an “over-elaborate, almost mind-numbing legal analysis”. The report on that case went on to say:

Lord Justice Mummery, agreeing, noted the “urbane” submissions of Cordara (the Queen Counsel representing Pringles), which referred to “the potato as a fiscal contaminant” and drew attention to the “essential characteristics of the paradigm potato crisp”. The judge rejected the argument that Pringles also have 33 per cent fat, and if a product has a number of significant ingredients it cannot be said to be “made from” one of them. Lord Justice Mummery pointed out that “most children, if asked whether jellies with raspberries in them were ‘made from' jelly, would have the good sense to say ‘Yes', despite the raspberries”.

The report on that potato chips case can be found here.

And so there we have it.

In Malaysia, questions on the constitutionality of the criminalisation of  homosexuality and the punishment of caning are just brushed aside without any known reason.

But in the UK, the Court of Appeal had sat to hear "Aristotelean question' on what constitutes potato chips and came up with a written and well reasoned judgment on that question.

Sodomy, caning and potato chips. Which one is more important?

Monday, March 01, 2010

Three kids and a flute

In exploring and demonstrating the idea that it is possible to have different reasons for justice, each of which would survive "critical scrutiny" but "yields divergent conclusions", Amartya Sen in his "The Idea of Justice" brought us a delightful tale of three kids with a flute.

As the tale goes, there are three children, Anne, Bob and Carla. And there is one flute. All three kids make claim for the flute on different reasons and with distinct justification.

Anne makes claim to the flute based on the fact that she is the only one who could play the flute. This fact is admitted by the other two kids, who know next to bleeding nut on how to even make a sound from the flute.

Bob on the other hand lays claim to the flute by being the most underprivileged of the three. Coming from a poor family he has no toys. Having the flute would very much make him happy and elevate his unhappy life. The other two children admit it as much that they are more privileged than Bob and that they have more toys then they need.

Carla on the other hand claims the flute due to the fact that the flute is the product of her hard labour. Yes. Carla actually is the one who makes the flute. This fact is also admitted by the other two children.

Who should get the flute?

The socialist-economic egalitarian among us will make a plausible - and probably incontrovertible - argument that Bob-the-poor ( as opposed to Bob the builder, I suppose) should get the flute. After all, Bob represents the sad face of the oppressed masses, the proletariat, so to speak. In the face of the bourgeoisie Anne and Carla, Bob should get the flute, argues the Marxist.

If the other facts are not available to us, we would even agree with the socialist-economic egalitarian.

The capitalist and probably the utilitarian among us would surely argue that Anne should get the flute. After all, only she alone can put the flute to really good use, namely, to make money out of it. She could perform in multiple concerts (full house of course) and makes money.

With that money, she could pay taxes. With that taxes, the State can help out Bob. Probably, the State can lend some money to Carla to build a flute making enterprise and employ Bob. Bob's financial position could then be elevated. The State could be richer and everyone could reap the benefit.

The capitalist would never ever waste this opportunity. That flute should never be wasted in the hands of Carla or Bob. Of course, if we do not know the other two arguments, we would agree with the capitalist.

The moralist-naturalist and probably also the libertarian among us would make a firm argument for the flute to be retained by Carla. A direct reference will of course be made to the fact that a person should be allowed to keep whatever he or she produces.

Without knowing the other two arguments, we would surely agree that Carla should keep the flute.

In Justice Is An Illusion, I have posited that all that we have is a notion of justice and not justice as a conceptual reality. Justice is presumed done when the law is applied to a set of facts and a determination of right or wrong is made together with an order by the adjudicator on how to redress the "injustice" or dispute.

That article brought a remark by a famous lawyer for me to re-read my Dias. For the uninitiated, Dias is an author of one of the most basic - and easily understandable - book on jurisprudence. Well, I do not know where I went wrong in that article and still, after re-reading Dias since then, I am none the wiser.

Allow me to explain my stand. A woman is raped and killed. And a man is found guilty of raping and killing her. He is sentenced to death by hanging. Justice is done?

The injustice here is the rape and murder. The application of the law makes the man guilty for rape and murder. And the order granting "redress" is that the man should be hanged to death. Following that, the resulting notion is that justice is done. But is it?

Let's say the woman has 2 children. She is also survived by a husband who loves her. Her parents are also still alive. The woman lost her life. Her children lose the opportunity of enjoying her company, affection, love and guidance forever. Her parents and husband lose her company, affection and love forever. So do her friends. And her relatives. Her boss lose her as an employee. And so on and so forth.

Now, does the hanging to death of the man who rapes and murders her bring justice? Justice to who?

Okay, let's look at another case. A man loses a hand in a car accident. The other man at fault is found liable and is ordered to pay the first man RM100000.00 as compensation. The law is applied. Is justice done?

You tell me.

Back to the three kids and the flute. I don't have an answer to the question on who should have the flute. And all of us could argue till all the cows are slaughtered and their head severed. No correct answer will ever come.

Yes. There would be arguments stronger than the others. And probably more acceptable than the others. But I doubt that there will be an answer acceptable to all and everyone of us.

Having said so, I can't help but run wild with imagination on how corporate Malaysia would deal with this nice problem.

Firstly, there will be a declaration. 1 Flute. All three kids will be implored to live happily with each other and share the benefit of the 1 Flute. After all, there is only 1 Flute.

Then there will be a huge protest somewhere because the flute, apparently, is a western influence and owning it, let alone playing it, will be as bad as women not wearing their panties on Valentines Day. Some Minister will then issue a statement that the 1 Flute is eroding our culture.

The Minister for Tourism will of course disagree. He or she will apply to the United Nation to declare that the 1 Flute is a world heritage coming from Malaysia. Indonesia will protest. They will assemble in front of a Balinese pub and start burning Malaysian flag. Then someone will accidentally step on someone else's feet. That will of course end in a bloodbath worthy of the next Bravehearts movie.

Brunei quietly obtain the heritage status.

Back in Malaysia Darul Boleh, suddenly there will be a huge outcry. Demonstrations are threatened. Cows are killed and their head, severed. A massive demonstration takes place in front of the Dewan Filharmonik Petronas where Anne was suppose to give a soulful rendition of M Nasir's first ever concerto, "Con - OPus 1" (in short) backed by Pancaragam Polis Di Raja Malaysia, flute section.

Banners, reading "Martabatkan Islam - lu sial pu%$mak" could be seen. Pictures of the 1 Flute are burnt and stomped on.

872 Malay NGOs will meet at Bukit Jalil stadium, after the final Akademi Fantasia concert led by Mawi and some dolled up Malay chix to declare their intent on protecting the Malay music. Another 456 NGOs meet at at a Jom Heboh fun fare to declare their support for the first 872 NGOs.

Meanwhile, the Company Commission freezes new application for the registration of NGOs. "There are too many NGOs and we are short of staff. All applicants are advised to form a sendirian berhad instead,", says a spoke person who wishes to remain anonymous.

Opposition politicians call for a Malay counter-movement to fight for the right of all Malaysians to enjoy the 1 Flute.

On Facebook, a group entitled "Kami Golongan Benci Flute Dan Serunai" is started gaining 155000 members in 3 hours. Apparently, 149999 of them are new Facebook members since the morning before the group was started.

Meanwhile, the group "All Malays and Malaysians Clueless Apathetic Liberals Who Don't Mind The Flute As Long As We Are Not Killed Or Maimed" gain 4 members in the last 7 days. A Malay left-right winged UMNO member starts another group, "Kumpulan Melayu Yang Mahu DiMertabatkan Sebagai Melayu Yang DiMertabatkan." It quickly gain 3469 members in 2 days. By the way, do you call a right winger with leftist inclination a left-right, a leftist-right or just plain "gay"? LOL!!!

As a result of the planned concert at the Dewan Filharmonik Petronas, the chief of Petronas loses his job. A guy managing a shipping company replaces him.

Five people holding a candle light vigil to mark the "death of music, flute or otherwise" are arrested and charged for sedition. On the way to Court to meet their clients, 34 lawyers are also arrested, handcuffed and detained for a night.

The 30 people demonstrating in front of the Dewan Filharmonik Petronas who are arrested and interrogated for 2 minutes at nearby Nasi Kandar Pelita, KLCC outlet, are released. Latest. The AG Chambers say they are not going to be charged due to "massive public pleasure" (sic).

Tengku Razaleigh meanwhile calls for the 1 Flute to be shared equally among Malaysia's 13 states. The Federal government disagrees, saying the Tengku is being disloyal to UMNO for suggesting as such.

Karpal Singh files a suit in Court. Uproar in the Parliament.

Anne manages to get a contract to play the 1 Flute in the United State. Much hoo haa was made of it in the media. A Datukship was offered to Anne. Three officials are sent to the US to do the promo. But only 1 manages to appear at a press conference there. Unfortunately, the press conference quickly becomes an off-the-record event.

The concert never happen. The 1 Flute was stolen.

Bob goes back to his rubber estate in Bukit Selambau. He still does not have any toy.

Carla leaves for Singapore. There she starts a small industry manufacturing flutes from recycled material. She has won a Nobel price.