Loyal Followers

Monday, December 27, 2010

Boxing day thoughts

Crime rate is down. Really?

I was at a Christmas dinner and I met an acquaintance. His face was badly swollen and his lips were cut. His cheeks and chin were littered with fresh wounds which were just stitched up. I was shocked to see his face.

As the story goes, two nights before Christmas, he was at a traffic light somewhere in Bukit Bintang at about 2 am. Suddenly, his windscreen was smashed by a motorcyclist.

He made the biggest mistake of his life. He came out from his car. The next thing he knew was that a group of boys on motorbikes surrounded him. They just bashed him up in the middle of the road without warning.

They attacked him like a pack of wolves attacking a lost sheep. They were relentless. The guy thought he was going to be killed. Finally, when he was almost lifeless in a pool of blood on the road, they stopped. Someone pulled his wallet and all of them rode off.

That was it. They just wanted his wallet.

This was not the only story I heard that night. The father of a young man told me how his son was being chased by about 40 rempits on the Federal Highway and on the road to Subang one night at bout 10pm! They threw a brick at his car windshield. But he was lucky. He managed to escape.

Some months ago, my neighbour's young teenaged son was involved in a verbal skirmish with a 19 year old college student. Within half an hour, about 19 youths on motorbikes arrived at my neighbour's front gate ready to go to war with the whole family. As a father of two young kids, I was horrified. Luckily nothing untoward happened.

These stories are indeed frightening.

Idris Jala and his band of statistic junkies should really rethink what they are doing. Rates are nothing but numbers. Numbers are what they are, namely, numbers.

If previously, there were 48 petty thefts and 2 murders and now there are 8 murders and only 2 thefts, the numbers do indeed look good. From that numbers, crimes have been reduced by 80%. And so, the country is 80% safer, right? What utter tosh!

Numbers do not and can never reflect intensity. From the extreme example above, although crimes have been reduced by 80%, the intensity of the crimes is not reflected in the numbers. And the numbers for sure do not tell and are in fact incapable of telling how safe our streets are. Or how safe we feel.

If our police could go out an arrest some people wearing red shirt gathering peacefully at the compound of our National Mosque, my obvious question is, why can't our police come out with water cannon, tear gas, batons and what-haves-you against these pack of wolves roaming our streets at night? After all, the rempits are also assembling without a permit and therefore, illegally, no?

It is not as if this is a new phenomenon. It's been around for years and years. And yet this problem, far from being solved, has gotten worse.

I would love to hear from Minister Idris and his Pemandu-pemandu, is there some sort of a KPI criterions imposed on the authorities to solve this problem? If so, can I know what they are? If not, why?

Polis merempit

By now I am sure everybody and his dog (for Muslims, please substitute cat for dog, nanti IKIM marah), has read about the guy who had lodged a police report alleging that he was beaten up and robbed by about 11 police men after he was stopped for apparently driving with an expired road tax.

In a seemingly related article, Malaysian Insider reports that two policemen have been arrested. The two were "believed to have caused hurt to a man arrested for allegedly carrying drug during a road block last Saturday." I presume these two policemen were involved in the above incident.

There is however a twist. Where the assaulted man mentioned that he was stopped for a road tax offence, the Malaysian Insider reports that the man was arrested for allegedly carrying drug.

Wow. Someone must really be telling a bloody lie!

Whatever it is, the point is this. If the report about the man being assaulted and robbed is true, then our police force really has some deep soul searching to do. And the same applies with our Home Ministry.

In a civilised society and in a country aiming to be a high income country by the year 2020, the act of the police being involved in beating up, torturing and even causing the death of any arrested person is totally and categorically unacceptable. It is despicable, in fact.

The police has been in the spotlight for all the wrong reasons too many times and too frequently. The number of death caused by the police shoot-to-kill actions is alarmingly high. 279 persons have been shot dead by the police between 2000-2009. Everybody would remember the late Aminurasyid, a 14 year old boy who was shot to death, for example.

By contrast, New Zealand only has 22 police shooting death in 70 years! The UK, with almost double our population, only has 48 police shooting death in 22 years between 1985-2007.

What gives?

Malaysia has abstained from voting on the Optional Protocol to the United Nations Convention Against Torture and Other Cruel and Unusual Treatment 1984 although this protocol was adopted by 127 countries, including Indonesia, Cambodia and East Timor, on 18.12.2002. 42 countries, including Malaysia had abstained and 4 voted against it.

One wonders, had Malaysia adopted the protocol, wouldn't A Kugan  be still alive now? And wouldn't Teoh Beng Hock be happily married and seen walking around carrying a healthy toddler now?

It is with these kind of happenings that civil societies of Malaysia have been calling for the government to immediately implement the proposal of the Royal Commission for the establishment of the Independent Police Complaints and Misconduct Commission (IPCMC).

It is ironic that while the Prime Minister had pledged to protect the civil liberties of the people, some police men are doing their darndest best to achieve the exact opposite.

1Malaysia ban

Initially, I just have three words to say about this. Ha, ha and ha.

The PKR-led Selangor government's initial decision to ban the 1Malaysia logo in Selangor is almost as funny as Samy Vellu being given a standing ovation at the Barisan Nasional convention recently.

Is it not PKR's main complaint that freedom of speech has been much curtailed by the BN government? Is it not PKR's main gripe that the BN government has behaved in a thuggish way every time an issue of national importance is raised, preferring to ban discussions rather than engage?

What a whole load of bollocks, PKR?

It looks like PKR, like BN, is bereft of any ability to counter an opposing thought or argument. For God's sake, banning things isn't going to make those things disappear! Jeez! Did you all have Christmas drinks to early, eh?

You do not counter an idea by banning it. That is so Mahathir! And I thought PKR did not like to  and will not ever rule like Mahathir did? What is wrong with you people?

If Selangor government thinks that 1Malaysia is a propaganda and a waste of money, than go ahead and show 1Malaysia for what it is. Counter it. Argue against it. Analyse and rationalise. Show the whole world the exact hypocrisy of that concept. Make all of us minions understand. Not ban it!

And why didn't the PKR Selangor government - if it thinks that 1Malaysia is so full of bulls - show the way by promoting a true multi-cultural-society programe by, for example, launching 1Selangor?

I suppose, it was a case of UMNO-citis huh?

Thursday, December 23, 2010

Seasons Greetings

Dear Readers,

Here's to wishing you all Merry Christmas, Happy New Year and Happy Holidays.

May your life be always filled with joy, peace of mind, good health and goodness.

Do spare a thought, or two, to the underprivileged while we celebrate the year-end festivities. A bowl of rice and soup would go a long way to make them smile. Spread the love.

And, do drive safely.

christmas-tree

Tuesday, December 21, 2010

Dear Mr Lee,

I am Malaysian. And a very proud one at that.

While my former Prime Minister, Tun DrM has apparently, and suddenly, agreed with you on what you had apparently said about Anwar Ibrahim and his alleged dalliance with an ass - "ass" here refers to the anatomy of a human being, not the animal, although sometimes in your country, that word could also refer to members of your government - I, on the other hand, could not give a rat ass to what you or any of your colleague say about my country or its people.

I will be blunt because I am not a politician. Nor am I a diplomat or a member of my country's civil service. So, here goes. Neither you, nor any of your colleagues, have any moral standing, or any standing at all, to pass judgement about my country or my fellow Malaysians or any other country for that matter.

If what was reportedly said by you and your colleagues about my country and our leaders was in fact said by you and your colleagues, than I just have one word to say to you and your colleagues. Buzz off! (Well, they are two words actually, but I don't give a hoot!)

I am not bothered by what you and your colleagues think about my country or my leaders simply because I have always known that you and your government have always suffered from chronic and almost incorrigible Napoleon Complex (to borrow a phrase from Mariah Carey's song about someone who has a small appendage).

All those chatters over golf matches with Tun Abdullah, warm embrace between your son and Prime Minister Najib and nice tete-a-tete over some scones and tea between you and our Prime Minister's wife are just for show. I have always, in my heart of hearts, doubted your country's sincerity in almost whatever you do, whether on a private or even more so, governmental basis.

In short and plain language, I have never trusted you or your government. You and your government, to me, had pioneered and perfected a "cocktail diplomacy" that had, over the years defined your external policies in South Asia.

To say that I have no respect for you or your government would be, Mr Lee, an understatement. I laugh at the nakedness of the cold and wrinkled anatomy of your cocktail diplomacy.

Unlike many of your citizens, I am not stupid to swallow hook line and sinker your heavily masked political assurances of neighbourly goodwill and co-operation. I don't believe you or your government because I have always known - from your actions and deeds - your condescending and patronising views about everybody else in this world, save for probably, your masters, the United States of America and probably too, Israel.

You think you are the best. When in fact you are nothing but an amalgamation of flesh and bones without any semblance of a soul. Your country is consumed by and obsessed  with what your neighbours intend to do and the ways and means to defeat your perceived competitors - which, in most cases, only exist in your tiny little mind - and procure a perceived victory over them. In short, you and your colleagues suffer from multiple phobias over nothing.

You boast of economic success. May I ask, at what price? Your people have traded their soul, their freedom and liberty, their right to even think of what is right and what is wrong for just a slice of economic and material gains. How shallow can one be?

Your society is exactly what Herbert Marcuse was describing in his "One Dimensional Man", when he says, finally, under the condition of a mass society, shaped and moulded by the State,

"the multi-dimensional dynamic by which the individual attained and maintained his own balance between autonomy and heteronomy, freedom and repression, pleasure and pain, has given way to a one-dimensional static identification of the individual with the others and with the administered reality principle."

That is what I think of you and your colleagues, Mr Lee.

You and your colleagues huddled together in cafes, holding whiskies and passed judgment on my country. My country is, apparently, "declining." And the cause of that decline, apparently, is "incompetent politicians."

Well, who exactly are you or your colleagues to pass judgment on us? Incompetence, you say?

You and your colleagues boasted that Orchard Road will never ever be flooded. Remember? And this was what happened.

flood1

What do you say about that? Competence? Go and fly kite, Mr Lee.

And true to your government's multi-phobic affliction, you even arrested, handcuffed and detained a reporter who was photographing the flood. Read about it here. 

And what was your people's explanation for that incident? Your Minister for Environment and Water Resources Yaacob Ibrahim, had even copied and used the answer given by our former Home Minister in explaining why  a journalist was arrested under our Internal Security Act a couple of years ago, in trying to explain that incident.

This was what he said (as reported here),

From what we understand, the photographer was warned because of safety issues, not because of privacy issues.”

Yes, apparently, that guy was arrested, handcuffed and detained because of safety issue. Your Minister can't even be original in his reply! He has to copy what our Minister said!

Incompetence you say? Go and stand in front of the mirror and look at yourself. You can't even predict a flood in the middle of your commercial district!

And what about a certain guy by the name of Mas Selamat? Remember him? Yes. He escaped from your maximum security detention centre.

What do you call that? Excellence?

Who, dear Mr Lee, managed to track him and re-arrested him? Who was the kind soul who, in the spirit of good neighbourliness and goodwill, surrender that guy back to you? Who else but your incompetent neighbour, eh?

Frankly, would you do the same to my country? Well, don't answer. That is a rhetorical question. I know the answer already.

You have and know of no other way to deal with public grievances and opposition than to arrest them, harass them with defamation suits and utilise  your executive might and power. Your country would think of nothing about utilising your pliant judiciary to mask your purely political actions against your opposition in order to lend a semblance of judicial justification for their extermination.

Democracy you say? I laugh and I laugh. And I laugh at you and your government's shenanigans Mr Lee. It is the idea that everybody is stupid that makes me laugh so hard. The stupidity of thinking that every other people could be hoodwinked makes me want to die laughing!

Under the guise of good governance and security, your government would go out of its way to silent critics. What did you do to a web site called Temasek Review Mr Lee?

You cringed at the thought of intellectual discourse in cyber space. Because really, you are not equipped to deal with it. That is because your society has been shaped and moulded to comply and follow, and not to question and demand. So, Temasek Review had to be stopped.

Because of that your agency, Temasek Holdings claimed that it had the intellectual property right to the name of Temasek Review. How very convenient? And Temasek Holdings than, apparently sold the right to use that name to an unknown party for S$1.00. The report is here.

Sorry, but I have to laugh again. Hahahahahahahha...you think the people are as stupid as your government? You have always had the ability to mask your political moves with commercial dress ups. And that move was so you, so Singapore, Mr Lee.

Speaking of Temasek Holdings, what were they doing in Indonesia so much so they were found liable for breaching anti-monopoly laws there? See the report here.

What do you call that?

The truth is Mr Lee, you, your colleagues, your government and your country are not perfect. Nobody is.

So please. Take your smug pimply face away and mind your own business.

Malaysia can survive without you. Can you survive without Malaysia?

Thursday, December 16, 2010

Drowning in the sea of irony

Among the many things which our laws prohibit young people of less than the age of majority (age of majority is 18 years old) from doing are:-

a) buy tobacco products;

b) buy alcoholic beverages;

c) enter  nightclubs/discos;

d) enter into any kind of contract unless the contract is for the provisions of necessaries and scholarships;

e) cannot be owners of land or deal with land;

g) cannot be employed unless such employment is specifically allowed under the Children and Young Persons (Employment) Act 1966;

h) cannot be tried in any court other than the Juvenile Courts;

i) cannot enter internet cafe during school hours;

j) cannot be seen gallivanting around town during school hours especially in school uniform;

k) children under 16 cannot have motorbike license and therefore legally are not allowed to ride a motorbike;

l) children under 17 cannot have car license and therefore legally are not allowed to drive a car;

m) people of less than 21 years old cannot have lorry license and therefore legally are not allowed to drive a lorry;

n) people of less than 21 years old cannot vote.

In the meantime, university and college students, regardless of their age, are not allowed to participate in any political activities, according to our law. This includes being driven in any vehicle with any member of any political party - especially opposition parties - or being caught in the possession of any banner or flyers of any political party, especially opposition parties.

All these prohibitions are legally designed to protect the kids who, presumably, are not endowed with the wisdom which we, the adults, have in abundance.

Yes, our kids are a protected lot.

Oh, but hold on.

In our country, children as young as 11 year old can get married, especially the girls. Fantastic. They cannot ride motorbike, drive a car, enter a nightclub, buy ciggies, drink beer or even enter an internet cafe.

BUT THEY CAN GET MARRIED. Cook for their husband. Do his laundries. Have sex with the hubby like bunnies on heat. Get pregnant. Deliver babies. Take care of the babies. Raise them up.

A 20 year old cannot even vote.

A 24 year old who studies in the university cannot even talk about politics.

But a 14 year old can get hitched and it will make big front page news of the newspaper.

And the Women, Family and Community Development Minister, herself a full blown woman, said it's okay as long as the Syariah Courts approve the marriage. Superb.

I want to ask a hypothetical question.

If the Honourable Minister had a 14 year old daughter and she is divorced from her husband, and the husband wants to marry off her 14 year old daughter, would she be okay with it just because the Syariah Court has approved the proposed marriage?

Don't laugh at me. I am serious. Apart from all these inter-faith controversies which we are now facing, where the ex husband who has converted to Islam is converting his children from, say, Hinduism, to Islam and such, another controversy will soon emerge, I am sure.

The controversy is like what I had described above. A couple has underage kids. They divorce. And one parent would want to marry off the underage kid, especially if she is a gal.

Just wait and see.

What will the Civil Court, especially our esteemed Federal Court say if that happens? Oh, I know the answer already. They will say they have no jurisdiction as it is a syariah matter.

Just you all wait and see.

Tuesday, December 14, 2010

Plea bargain - the Malaysian way

Plead guilty and get only half the punishment: Chief Justice

The above headline in the Star yesterday almost made me choked.

The report says,

"Those who plead guilty in court will soon get half the maximum punishment due under the law as they save the courts' time and reduce the number of backlogged cases."

The reason for this judicial sale is apparently this:

“The step was taken to help reduce the numbers of backlogged cases so the cases can be cleared as fast as possible,” he said.

The Chief Justice also hoped that the amendments would encourage offenders to plead guilty instead of going through a long trial."

I really do not know whether I should cry or do the proverbial hara kiri

Just consider this. What if someone is charged for murder. The mandatory sentence for murder is death by hanging. So he pleads guilty. Then what? Sentence him to hanging till he is half dead?

Or take a case of somebody being charged under section 378 of the Penal Code for stealing a pair of slippers. That offence would be punishable under section 378. The punishment is imprisonment which may extend to seven years, or with fine, or with both, and for a second or subsequent offence shall be punished with imprisonment and shall be also be liable to fine or to whipping.

So he pleads guilty. What does he get? In accordance with this brilliant proposal he would automatically get 3.5 years for stealing a pair of slippers.

Then on the same day a top corporate man is charged under the same section for stealing 100 million Ringgit from his own company. He pleads guilty too. And he also get 3.5 years of imprisonment.

Brilliant isn't it?

This is the problem when people who are running a certain essential arm of the country's administration are missing the concept, either out of sheer shallowness, deep inability to rationalise or non-understanding of the underlying reasoning for a certain act, rules or law.

Sentencing is an act which the Judge must exercise after considering all circumstances and facts before him or her. After a guilty plea is recorded or a conviction is made, the Judge must consider all the facts of the case, the surrounding circumstances and also the mitigation speech made by the Counsel or the accused.

The sentence imposed on a guilty party is a reflection of the society's abhorrence of his criminal act. It is also a means to punish the guilty party for his criminal act. Apart from that, in certain situations, the sentence is also meant to serve as a deterrent to other parties not to commit the same crime.

However, care must be taken to impose a fair and just sentence. The sentence must be proportionate to the offence committed. In the example that I have given above, the wholesale dishing of half punishment upon pleading guilty would make a mockery of the whole criminal justice system. Just imagine, a person stealing a pair of slippers receives the same jail term as a person who steals 100 million Ringgit. What kind of justice are we talking about?

In addition, modern approach towards a sentence of imprisonment is encapsulated by the recommendations made by the Council of European in the area of penal reform. These emphasise the principle that prison should only be used as a sanction of last resort.

Recommendation No. R (99) 22 concerning prison overcrowding and prison population inflation states:

“1. Deprivation of liberty should be regarded as a sanction or measure of last resort and should therefore be provided for only where the seriousness of the offence would make any other sanction or measure clearly inadequate.
2. The extension of the prison estate should rather be an exceptional measure, as it is generally unlikely to offer a lasting solution to the problem of overcrowding."

The Halliday Report - Making Punishment Work: A Review of the Sentencing Framework for England and Wales, for example, lists out the following important principles of sentencing, namely,  proportionality; consistency; freedom from improper discrimination; compliance with human rights; transparency; efficiency; effectiveness; and economy.

That is how sentencing should be approached. It should not at any rate and under any circumstances be approached as a wholesale discount policy upon pleading guilty. That would make a mockery of the whole criminal justice system in this country and reducing Malaysia to a laughing stock before the eyes of the whole world!

The astounding - and most alarming - thing about the piece of news in the Star is how the Chief Justice tried to justify the proposal to half the sentence upon a plea of guilt.

According to him, the sentence will be halved because,

  • they save the courts' time
  • they reduce the number of backlogged cases
  • it will help reduce the numbers of backlogged cases so the cases can be cleared as fast as possible.

He concluded by saying he "hoped that the amendments would encourage offenders to plead guilty instead of going through a long trial."

All that matters for this Chief Justice is speed. And clearing backlog. To him, the Courts and their efficiency is to be judged by looking at the number of cases disposed off by the Courts. Never mind the quality of judgments. Never mind justice and fairness. In other words, never mind the laws!

Did the Chief Justice refer to ANY ONE of the principles of sentencing in his announcement of this ground breaking proposal? No.

Did he refer to justice and fairness? No.

Did he even attempt to talk about proportionality, consistency and human rights? No.

The most frightening aspect of this news or announcement is the fact that the Chief Justice - the head of our Courts - saw it fit to announce this proposal instead of the de facto Law Minister. And he did that at the Judges Conference no less!

Is it within the ambit and purview of the Chief Justice's duty as the head of Judges/Courts to announce a new law which alters the policy on sentencing?

Is that not mixing up and blurring the lines which separates the powers between the Executives, Legislature and the Judiciary?

The Judiciary should just be concerned with its business, namely, implementing the law. And that includes implementing the current laws and rules on sentencing. It should not be concerning itself with the works of the Legislature and even more so, the Executive.

The Judiciary should not be seen to be an active participant  in promulgating new laws in respect of sentencing just on the basis that the Court would like to reduce backlogs. How warped can the Judiciary be?

What in heavens is happening to the judicial system of this country? Don't we understand - let alone practice - basic and fundamental principles anymore? Hello?

As for the last statement, that it is "hoped that the amendments would encourage offenders to plead guilty instead of going through a long trial", I just have three words to say, OH MY GOD!

We want to encourage offenders to plead guilty instead of going through a long trial by offering them a discount on the punishment? So the avoidance of the long trial should be a motivation to plead guilty, huh? What about the long trial should be the motivation to find the truth and to ensure justice and fairness?

So, it's okay for us to tell the "offenders" - why are we calling them "offenders" when they are not yet convicted? - "you should plead guilty for a 50% discount of the punishment or otherwise we would subject you to a long trial?" So the long trial is a deterrent to pleading not guilty?

How warped!

I really don't know what to say anymore.

Wednesday, December 08, 2010

The AG and Documents

I read with particular interest a report by the Malaysian Insider that the AG was ready to declassify documents which are now classified as official secrets under the Official Secrets Act in the Tun Ling Liong Sik's prosecution.

The AG was quoted as saying, "I have no problems. I will provide the documents." The reason for doing so, according to the report is, "we have an understanding...that this will be sorted before the trial proper starts."

The report continues to say that "the top government lawyer said he was doing it to ensure the trial would run smoothly."

Tun Ling is charged under section 418 of the Penal Code. That charge, upon conviction, carries a sentence of imprisonment of up to seven years or a fine, or both.

It is good to see the AG willingly disclosing all documents to the defence for once. In this case, those documents are deemed so important to the nation, so much so they were categorised as official secrets. The disclosure of these documents may even affect national security. That is why they are so categorised.

However, in order for the court to arrive at a fair and just decision, the truth must come out. It is therefore only fair for the AG to declassify the documents so that the trial will run smoothly (as the AG is quoted to have said) and also to enable the defence team to prepare its defence properly.

The willingness and the speed by which the AG agrees to declassify the documents and is releasing the same to the defence is however a far cry from the Sodomy 2 case, where the AG is unwilling to even release medical notes and reports to the defence team.

The medical notes and reports are personal in nature. They are not categorised as official secrets. They are just about the accuser's rectum, what it contains and how the rectum looks like. To put it bluntly, those reports and notes are about, well, to be crass, they are about a person's ass. Nothing more.

These documents are essential to the defence. They will serve to justify and verify the truth and accuracy of what the various medical doctors are saying in their testimony. The disclosure of these documents will no doubt ensure justice and fairness.

It will reveal the naked truth.

However, the almost belligerent unwillingness to disclose those documents to the defence in the Sodomy 2 case is surprising, especially when viewed against the  almost voluntary co-operation to disclose official secret documents by the AG in Tun Ling's case.

Tun Ling is facing, at the most, a 7 year sentence and yet documents deemed to be official secrets of the nation are easily and promptly released. Meanwhile, Datuk Seri Anwar is staring at a 20 year sentence and yet, personal notes and reports of doctors in respect of a certain part of the anatomy of the accuser are being withheld as if their disclosure would cause Armageddon and the whole mankind might be wiped out upon their disclosure.

Why, may I ask, the difference in treatment of the two cases in so far as disclosure of documents are concerned?

Monday, December 06, 2010

ISA for Datuk Seri Wan Azizah?

 

The suggestion made by UMNO legal advisor, Datuk Hafarizam Harun (no relation to me), that the ISA be used against, particularly, Datuk Seri Wan Azizah, is symptomatic of UMNO's psycho terrorism response to any opposing intellectual proposition. This technique has been a feature of  UMNOlitics for as long as all of us would care to remember.

Psycho terrorism, like any other form of terrorism, is aimed at creating fear. With the target in a state of utter paralysis caused by the crippling fear, the psycho terrorists move to control the target's mind and eliminate the target's action. Without the target's action, there would not be any reaction. Mission accomplished.

The target's action here is her rejection of the much quarreled about - though never properly debated or well argued - concept of Ketuanan Melayu, or the Malay Dominance/Supremacy.

Lately, UMNO's potency, even  among its own members, is suspect. While outwardly its President - also our Prime Minister - has been preaching social justice and the concept of a fair and just society and has been blah blahing about equitable distribution of wealth as well as a culture of inclusiveness in his idea of 1Malaysia, it is felt that UMNO cannot do away with its post-war-nationalistic stance. Lest UMNO might lose the support of the grassroots.

Thus, a balance has to be achieved between pandering to the needs and aspirations of the young and educated  as well as the middle to upper middle class urbanites on one hand and the lower rung of the society, whether in urban areas or rural on the other.

That is precisely the reason why we, Malaysians, are seemingly marooned in a state of paradox since 2008. One fine day we would hear the Prime Minister extolling the advantages and benefits of equitable wealth distribution among all Malaysians only to be told a week or so later that the special "rights" of the Malays will be defended come rain or shine.

The next day we would be duly entertained by a call from the Prime Minister to the international community not to be involved in the politics of hate only for us to be brought back to Earth by Perkasa claiming that Ketuanan Melayu is guaranteed in our Federal Constitution and Utusan Malaysia proposing with complete impunity that 13th May should be commemorated ala Christmas Day.

It would also not go unnoticed among all Malaysians that despite UMNO's express neo-economic agenda which espouses openness, fair competition and transparency in non-Malay and international forums, it continues to dance to the tune of Perkasa, Gertak and the likes before a Malay audience.

I loath to think what the international community and investors think of us as a result of all these different posturing before different audiences. It reminds me of one of Batman's nemesis, the creature known as Two Face.

Contrary to what analysts believe, UMNO is not at a cross-road. It is on a 6 lane highway, driving against traffic, in a car made in 1956 with a lose drum brake. It is a calamity waiting to happen.

It goes without saying that Ketuanan Melayu, its propagation and sustenance, is UMNO's most weighty balancing act, as far as its leaders are concerned. Any challenge - real or perceived - against that concept would and could not be tolerated as that challenge would spell the cessation of UMNO's relevancy and significance to the common denominator - the Malaysian peasantry - in UMNO's dream of totalitarian-absolutist-feudal democracy state.

Datuk Seri Wan Azizah's rejection of Ketuanan Melayu must therefore be checked immediately. Lest that idea would catch up and a reaction would follow.

The thought of Malaysians, especially  the Malays, coming to terms with the obvious failure of the so called affirmative actions  thus far implemented by the UMNO-led government - which has further divided the society into "the haves" and "the have nots" depending on the accumulation of political contacts and patronages -  and the prospect of them seeing the economical and political truth behind the cries of Ketuanan Melayu, would send shivers across UMNO's fiefdoms.

When pushed against an intellectual wall, UMNO has always resorted to fear mongering.

This is borne out of the culture of speak-only-when-asked-to and  the-leader-knows-best practiced from within for much of the existence of UMNO, especially during the 22 years of total  subjugation by Dr Mahathir. The end result of that culture is UMNO's inability - despite it actually having highly intelligent people within its circle - to unemotionally engage in an intellectual discourse with civility on issues close to the hearts of the people.

UMNO's only answer then is psycho terrorism. T-shirts with drawings deemed unacceptable to UMNO would be seized. At the height of the Perak Constitutional crisis, people wearing black t-shirts were arrested. People carrying candles in car parks were arrested. Police reports were lodged. Books, even cartoon collections, were seized and banned.

At a more esoteric level, the Sedition Act and of course, the dreaded Internal Security Act, would be called into play.

At this juncture, one wonders what has happened to the promise to "review" the ISA made by Minister Hishamuddin about two years ago? How thorough must the ISA be reviewed so much so that the revision process has to take so long? My stance on the ISA has been made known too many times. I will therefore not touch on it here.

I have also written much on the so called social contract and Ketuanan Melayu. I will therefore refrain from repeating myself. I will also not go into the murky waters of whether that concept historically existed.

In UMNO linggo however, one thing is clear. Ketuanan Melayu is not about the sanctity of the Malay Rulers nor is it about the well being of the Malays. That concept and the very phrase Ketuanan Melayu gained  footing on 30th August 1986.

This was when Datuk Abdullah Ahmad, the famous MP for Kok Lanas, made his now infamous "Ketuanan Melayu" speech in Singapore. He was perhaps endorsed by the then PM, Dr Mahathir. (Well, at the very least, Dr Mahathir has never ever said that he disapproved of that speech). He said:

"Let us make no mistake - the political system in Malaysia is founded on Malay dominance. That is the premise from which we should start. The Malays must be politically dominant in Malaysia as the Chinese are politically dominant in Singapore....

The political system of Malay dominance was born out of a sacrosanct social contract which preceded national independence....

There is thus no two ways about it. The NEP must continue to sustain Malay dominance in the political system in line with the contract of 1957...."

He then continued,

"Ours is not a system of discrimination but of Malay preservation which foreigners particularly refuse to understand. Ours is a system of Malay political dominance but not, as is often put across, of Malay political domination."

Again, I have also written extensively on article 153 of the Federal Constitution and I will not go into that here. But the notion that the provisions of article 153 are tied up to Ketuanan Melayu is misconceived, if not misleading. 

With all due respect to Datuk Hafarizam, article 153 has never been about Malay dominance of Ketuanan Melayu. It is there to ensure the Malays and the natives of Sabah and Sarawak could catch up economically with other races. It is about the protection of the legitimate expectation of the other races.

Our Father of Independence, the late Tunku Abdul Rahman, in his book, "13 Mei Sebelum dan Selepas" (13th May Before and After) (Utusan Publications & Distributions Sdn Bhd, ISBN 978-967-61-2073-1), said as follows:

"Even the Constitution has ensured other matters for the Malays. It admits the fact that at the time the Constitution was drafted with mutual consent of all parties, every party was conscious of the fact that the economic position of the Malays  had lagged behind other races who lived in this country. As such, a special condition was inserted to alleviate the economic backwardness of the Malays.....

In other words, the members of the Commission (the Reid Commission) had stated that the economics priority for the Malays was really necessary. They proposed that this provision be reviewed after 15 years. All these proposals were inserted into the Constitution.....

At the same time, we cannot forget the legitimate expectations of the other races as provided for in the Constitution. We must remember that all the other races were were fighting for this country's independence together with the Malays.

We should not put aside the fact that before we achieved independence, we were only an English colony which were divided by them. If all races did not unite for independence, our country would still be a colonised country until today..... (loosely translated from Bahasa Malaysia by myself).

Those are the words of the late Tunku himself on the origin and purports of article 153. He should know as he was the one who led the negotiations for independence and he was also involved in the preparation and submission of the Alliance's memorandum on the Constitution to the Reid Commission.

Speaking from the perspective of documented historical facts, it is obvious that article 153 is not at all about the concept of Ketuanan Melayu. Rather it is about the necessity to balance the economics structure of a young nation which was about to be born in 1957. It is about social and economics engineering. It is about social justice. It is about addressing economical imbalances.

As the society evolves, economical structures were built and altered. Surely there comes a time when stocks are taken. The foundation is inspected. The structures itself is looked at. The good is maintained. The bad is dismantled. Whatever which is deemed better would be put in.

And as far as Malaysia is concerned, perhaps a white ants specialist would also be called to look at the whole structure.

After all, we wouldn't  want the whole roof together with the water tank to crumble and fall on our head one of these days, would we?

Tuesday, November 30, 2010

A big black dog and two squirrels

dog-squirrel1

dog-squirrel2

dog-squirrel3

dog-squirrel4

A big black and ferocious dog was about to devour a small squirrel. The end was near for the poor squirrel.

Who would stand up against that dog? The squirrel's mother/friend/relative? Wouldn't the one trying to help be also devoured by the black dog?

What chance does the small squiggly squirrel have against the might of the ferocious black dog?

But the small one was not about to yield to the badness of the dog. He was not about to squirm on the tree in safety while looking at his friend/relative/baby being chewed up as dinner by the black dog.

No.

The small one was not wrapped in apathy, fear and total self-pity like some cry babies who whine and whine and whine but do nothing to protect their rights from being eroded. The small one was going to stand up and be counted. The small one was going to use whatever it has to fight. It was not going to sit idle looking at the dog devouring one of its own.

The small one was going to fight.

With one small leap the small one jumped. It landed on the dog's head and chewed its ear.

The big black dog was stunned. It never thought the small squiggly one would dare attack. It overestimated its might and power. And it underestimated the resolve of the small one.

The dog was helpless to do anything. The small one had attacked the dog at its most vulnerable area. The dog had no choice but to yield.

And watch the two small ones escape to safety.

The dog was humbled.

What is the moral of the story, Ladies and Gentlemen?

Wednesday, November 24, 2010

Shamala and the skirt of technicalities

Are you surprised? Well, I am not. The Federal Court rarely surprises me nowadays.

Take the decision of the Federal Court in Diana Nelson Tanoja v PP [2010] 3 CLJ 1, for example. In this case, the Federal Court - the highest Court in the whole land - in all its wisdom, held that in Malaysia, under our law, the Court can decide a criminal case on its own without hearing legal arguments at the close of the defence case. And this was a case which attracted the death sentence, no less. (A well written criticism of this case can be read at  LoyarBurok).

Malaysia must then be the only country in the Commonwealth where the Court is not obliged to hear legal arguments (or, in legal jargon, submissions) before deciding to convict or acquit an accused person!

Meanwhile, the recent Federal Court decision in the Shamala case is not the first time the Federal Court had chosen not to rule on an issue which is important to the nation, such issue having far reaching consequences to the society at large.

I have lost count of the number of cases which involve  inter-faith conflicts arising from conversion and re-conversion of a person from one faith to another - often from one faith to Islam and back to the original faith -where the Federal Court had chosen not to make a ruling, preferring to dismiss the case on technicalities instead.

These inter-faith conflicts often take place in marital or inheritance disputes although disputes involving burial rites are also proving to be on the rise lately. Although these disputes may sound personal in nature, the  repercussions and ramifications from such disputes, and the way they are resolved, bring with them wider and deeper societal impact. At the rate we are going and looking at the way we are handling these issues, it is clear that a time bomb is waiting to explode on this front.

Malaysia is a country where even the Constitution itself defines ethnicity. And as if to muddle it further, even the concept of Malay-ness in the Constitution is tied up to a particular faith, namely, Islam. To further spice things up, there are claims from our leaders and layman alike that citizens of certain ethnicity possess and enjoy "special rights."

Such is the situation here. It does not take a legal expert to note that different faith and ethnicity in Malaysia bring with it different legal dynamics, in terms of  personal laws, particularly concerning inheritance, matrimonial  disputes and child custody.

What is worrying to me is not the fact that such disputes are taking place. In a multi-ethnic-faith-culture country such as ours, the existence of such disputes is only to be expected. The disconcerting fact is that we seem to be unable, unwilling and unprepared   to properly deal with such disputes in a just and fair manner, in accordance with the laws of this country.

What is even more worrying is the political nuances which such disputes bring and the fact that such disputes are being handled as political hot-potatoes rather than what they are and should be, namely, personal and legal disputes.

During the hearing of the Shamala case in the Federal Court, I am made to understand that one of the learned Judge asked the Counsel whether this issue is of  social or political nature. With respect, why would the Court want to know from the Counsel whether the case is of political nature or otherwise?

The Shamala case involves a referral to the Federal Court by the Court of Appeal. The referral was made by the Court of Appeal BY CONSENT of all the parties involved. When the Court of Appeal was considering to make the referral, all parties CONSENTED to the referral being made. Purging of Shamala's alleged contempt was not raised at all at that time.

The referral involves the following questions, which were to be answered by the Federal Court, namely:-

  • 1. Whether Section 95 (b) of the Administration of Islamic Law (Federal Territories) Act 1993 is ultra vires (beyond the powers) of Article 12 (4) of the federal constitution (specifically concerning the right to determine the religion of the children under the age of 18 shall be determined by the parent or guardian) and Article 8 regarding equality rights;

    2. Whether the same section in state law is inconsistent with federal law namely Section 5(1) of the Guardianship of Infants Act 1961, and is therefore invalid;

    3. Regarding Article 121 (1A) of the federal constitution, where a custody order for children is made, which court, between the Syariah Court or the High Court, is the higher authority?

    4. When there is conversion of children of a civil marriage to Islam by one parent without the consent of the other, are the rights of remedies for the non-Muslim parent vested in the High Court?

    5. Does the Syariah Court have jurisdiction to determine the validity of conversion of a minor into Islam, once it had been registered by the Registrar of Muallafs (Registrar for newly-converted Muslims)?

The questions, as framed, consist of important Constitutional issues. The ruling by the Federal Court on such questions carry far reaching consequences on Malaysia as a whole, as opposed to only Shamala, her kids and her husband.

Is it not obvious from the questions as framed that the referral was not about the personal life of Shamala, her kids and her husband alone? Is everybody within the corridors of the law well appraised of the differences between an order in personam and an order in rem, what they mean and the effect of the two? Or do I need to spell that out?

Well, just in case. An order in personam just binds the party to a case. In contrast, an order in rem binds the whole world. Any ruling by the Federal Court in the Shamala case would bind the whole world as the ruling would affect Shamala's marriage, the status of the children's faith, the husband's right and his children's choice of faith and many more matters.

It is, in my view, from this perspective that the Shamala case ought, with respect, to have been approached as opposed to the narrow approach taken by the Federal Court in its decision.

The Federal Court refused to entertain the referral apparently because Shamala was in contempt for breaching a High Court order which required her to bring her children to Malaysia. Essentially, the Federal Court was of the opinion that Shamala was not entitled to pursue her Constitutional referral to the Federal Court because she was in contempt. (The full speech of the Federal Court can be obtained from here.)

With respect I take issue with some aspects of the decision.

First and foremost, the referral was made by consent of all parties in the Court of Appeal. Granted, no Court could be seized of jurisdiction by consent of parties. But in the Shamala case, jurisdiction was never an issue. If all the parties had consented to the referral being made to the Federal Court on the Constitutional issues, what right was there to object to the referral on the basis of contempt? Why wasn't the contempt issue raised at the Court of Appeal? In that situation, what right did the Federal Court has to focus on the contempt issue instead of the merit of the referral?

Secondly, was there a contempt order against Shamala? None! There was no finding that she was in contempt. Why then and on what basis must the Federal Court embarked on the issue of contempt as if it was established that Shamala was in contempt?

In this respect, the learned Judge in Dr. Madan Gopal Gupta vs The Agra University And Ors. AIR 1974 All 39 observed,

"In my opinion a party in contempt purged its contempt by obeying the orders of the Court or by undergoing the penalty imposed by the Court. The present case, no order of conviction was passed against the respondents."

Similarly, is it not part of our fundamental justice principle that a person cannot be condemned until he or she has been fairly heard?

Thirdly, the true legal principle which requires a person in contempt to first purge his or her contempt before being allowed to proceed in a matter must be closely looked at. With respect, I submit that the Federal Court had misapplied the law.

The Federal Court referred to the case of Hadkinson v. Hadkinson, (1952) 2 All ER 567 in its decision. That is the locus clasicus. A closer look at the judgment of Lord Denning in that case would be helpful to understand the true ambit of the principle involved. Lord Denning said:

"Those cases seem to me to point the way to the modern rule. It is a strong thing for a Court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy. It is a step which a Court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance. In this regard I would like to refer what Sir George Jessel, M. R. said in a similar connection in Ree Clements & Costa Rica Republic v. Erlanger. (1877) 46 LJ Ch 375.

"I have myself had on many occasions to consider this jurisdiction and I have always thought that necessary though it be, it is necessary only in a sense in which extreme measures are sometimes necessary to preserve men's rights, that is, if no other pertinent remedy can be found. Probably that will be discovered after consideration to be the true measure of the exercise of the jurisdiction." (emphasis are mine).

Four things are clear. Firstly, to not allow a person to pursue a matter on the basis of his or her contempt is a "strong thing" and  an "extreme measure." Secondly, the principle is only justified by "grave considerations of public policy."

Thirdly, the Court would only disallow the person from pursuing a matter in Court on the ground of his or her contempt if the contempt impedes the course of justice. On this, Halsburry's Laws of England, Simond's edition, page 42, paragraph 73 says,

"Even the plaintiff in contempt has been allowed to prosecute his action when the defendant had not applied to stay the proceedings. Probably the true rule is that the party in contempt will not be heard only on those occasions when his contempt impedes the course of justice and there is no other effective way of enforcing his obedience?" (quoted from Dr. Madan Gopal Gupta vs The Agra University And Ors. AIR 1974 All 39).

Fourthly, the Court would do so if no other remedy can be found.

Let us examine whether Shamala's alleged contempt impeded the course of justice. The referral to the Federal Court was on Constitutional issues. Any ruling on those issues would amount to an order in rem, which is an order binding the whole world and not only Shamala and her husband.

The ruling on those issues would also bind Shamala's children. Their rights to profess and practice a certain faith of their choice would have been determined by the Federal Court. The ruling would also give precedents to all other cases and would bind all other children and their parents as well as Government agencies such as JAKIM and others.

The ruling will put to  closure all the inter-faith conflicts and the incidental personal laws issues arising from such conflicts.

Now, how does Shamala's act in taking away the children from Malaysia impede justice in the referral to the Federal Court? I can't see how.

Granted, the facts in Hadkinson v Hadkinson are almost similar to the facts in Shamala's case. In the Hadkinson's case, the wife has taken away the child to Australia when there was an order requiring the child to be in the UK. Shamala has also taken the kids to Australia against a Court order.

But the similarity ends there. The Federal Court had failed to observe a distinct and very important difference between the facts in the Hadkinson case and Shamala's case.

In Hadkinson's, the wife/mother, married again and took away the child unprovoked and without any extenuating reasons. To the contrary, Shamala was forced to defend her children's Constitutional rights to choose their faith and also her own Constitutional rights to her children and as a parent because of her husband's conversion to Islam as well as her husband's act in converting the children to Islam.

That was a clear distinction. The Federal Court, with respect, failed to recognise, let alone appreciate, that distinguishing factor.

Granted, the legal principle disallows a person from coming to Court if he or she has committed contempt and had not purged the contempt. But the same principle does not disallow that person from defending a suit against him or her.

In Sudhir Chandra v. Raseswari Chowdhurani, AIR 1929 Cal 117, it was held that a defendant in contempt cannot claim as of right the benefit of the procedure of the Court except for the sole purpose of defending himself, and how far, these rights extend was a matter for the discretion of the Court. Though the party cannot himself come into the Court to take any advantage of the proceedings in the cause yet he was entitled to appear and resist any proceeding against him. (quoted from Dr. Madan Gopal Gupta vs The Agra University And Ors. AIR 1974 All 39).

Isn't it clear from the Shamala's case that although she was the one who initiated the proceeding, she was in fact and in law a person who was just defending herself and her children from the husband's acts? To put it in another way, Shamala was forced to come to Court to defend her rights and the rights of her children. Surely then the principle disallowing her from pursuing the case does not apply.

With respect, again, the Federal Court had failed to observe and appreciate the circumstances under which the case and referral were initiated by Shamala.

To me, the most striking factor which the Federal Court had so miserably failed to take into consideration in the Shamala's case is the public factor. The Federal Court had almost forgotten that what was before it was not an action in personam or an action which affects only the personal rights of the litigants.

Shamala's case was an action in rem, which would, if determined, result in an order in rem. The referral was on Constitutional issues, which, given the current societal and political climate in this country, greatly impact the society as a whole. Justice and fairness demanded in this referral would not be for the benefit of Shamala, her husband and their kids alone. It is for the benefit of the whole country.

With respect, the decision in Shamala's case represents the triumph of technicalities over justice and fairness. And that is, with regret, a really sad state.

Friday, November 19, 2010

"K" for "kelam kabut"?

Zaid Ibrahim's short-lived love affair with PKR is a reminder to all of us of many things.

First and foremost, I do not think for a moment that PKR's "one member one vote" system was well thought out, in terms of planning, management and implementation. It was a good idea and I am sure it was laced with good intention. But we have seen that good intention alone does not make an act good. Take the New Economic Policy as a prime example. Need I say more?

It must have been thought that UMNO's delegation system was too feudal in its outlook. Then it would not have escaped PKR's top echelon - as Anwar Ibrahim himself was a hot shot in UMNO - that the UMNO's delegation system was and is still in fact a fertile ground for abuse and corruption, as well as an incontrovertible proof that UMNO's top-down leadership is almost as feudal as it comes, making a mockery of modern democracy anchored to the will of the vastness of the real people, as opposed to elected agents and delegates.

And so PKR had to be different. All members must have the power to choose their leaders. To that end, it was well intent. However, unfortunately, how that end was to be achieved was a different matter altogether.

From the riotous and almost farcical party election that PKR is now going through, I doubt whether the intended end is achieved. When records show about 80 people in attendance and yet about 800 people voting, surely PKR could expect dissent and resentment from the candidates vying for posts. That is only to be expected.

To top it up, when party outsiders such as Haris Ibrahim could produce ballot papers issued for the party elections, one wonders whether Roy Hodgson is in charge of the ballot papers in PKR. Additionally, the low turn out for the elections has put the whole election in a really bad spotlight.

Secondly, the power play which underlies the political dynamics which results in Zaid's departure from PKR leaves a really bad aftertaste to Malaysians who were, up till recently, pinning their hope for a strong PKR showing in the next general election. A lot have been said by Zaid, his supporters and detractors as well as his opponents and even Anwar Ibrahim himself.

To the Malaysian public, these dynamics are not relevant nor significant. The average Malaysian voters are not appraised of these things. There will be Malaysian voters who want change. And from these change-seeking voters, some may see PKR as an alternative. Some others may remain hopeful that PKR would be a viable alternative.

The obvious question is how would this fiasco affect their thinking and perception of PKR. Would they now still see PKR as a viable alternative? Would they remain hopeful as such? How about the new-aged voters, namely the current crop of young cyber/iPhone/iPod/iPad-era voters who, despite their affliction for Lady Gaga and Adam Lambert, are more politically aware then we even care to give them credit for?

What will they think about PKR now?

I don't know about how they feel and think. But frankly, in my perception, PKR is so full of crap then it would even dare to admit. And if the farce that PKR calls and labels as party elections is to be a yardstick of its ability to govern this country, I would rather vote for the Siberian Husky in front of my house. And by that, I don't mean to insult the dog.

Thirdly, all of us would begin to wonder what will happen to Zaid after this. He was disciplined by UMNO before. Despite that, he became a Minister. A de facto law Minister at that. His push for reform saw him resigning in protest. He then left UMNO.

His sojourn to PKR was, to me, an expedient course, rather than a diligent one. He thought he needed a platform to move on with his reformist agenda. It was thought that PKR welcome him with a open arms. Recent events showed that while the arms were wide open while welcoming him, the  hands may have held a knife to his back during the traditional welcome hugs.

Zaid could have been PKR's trump card. Coming from the deep end of the "enemy's" territory, he must have possessed bountiful of knowledge about the "enemy" and their ways. He has always been steadfast in what he believes in and if needs be, he would not shy away from going against the mainstream.

He has proven this time and time again. When he was practising law, he was the first to have started and pursued the idea of a super-sized legal firm. In 1987-88, when the Malaysian Bar was up in arms over the Tun Salleh affair, Zaid bucked the trend. He in fact supported the proceedings against Tun Salleh. He then established the Malay Lawyers Association.

While a Minister, he pursued what he thought was a necessary agenda for the BN government. He did not even get approval from his colleagues. He left.

In PKR, barely some months after joining the aprty, he was issued a ban from traveling to Sabah and Sarawak. That was the first sign of trouble for him in PKR. But being true to himself, he soldiered on with his own reformist agenda within PKR.

He must have either overrated the party's willingness to change or underrated the strength of his detractors from within the party, or both. But what would hurt him the most would be the killer blow delivered against him by the party's leadership.

The arguments against him are numerous. Some say he was being impatient in challenging for the number two seat. But that would go against the very ideal which the party so fervently and loudly preach, namely, a true and dynamic democracy which gives the opportunity to every worthy man to lead, or challenge for a seat to lead. Does PKR practice what it preaches? Or does PKR think what it preaches only applies to others but not itself?

Some say he was selfish and almost obstinate in his pursuit of reformation within the party. However, if ordinary members are not given the opportunity to test the worthiness of  his or her ideas within the party, what political dynamism are we talking about? If a party only wants to hear what it wishes to hear, what differentiates it from its opponents against whom it complains for being dictatorial on a daily basis?

This debacle, in all its high resolution glory, coming after PKR's self-induced loss in Batu Sapi and viewed from the spectre of the two state assemblymen on pogo stick in Perak, a kangaroo MP from Kulim, a frog from Bayan Baru as well as the legendary 16th September black comedy, makes one begin to wonder what the "K" in PKR stands for.

Thursday, November 11, 2010

In a nutshell...

A son asks his father, "What can you tell me about politics? I have to learn about it for school tomorrow." The father thought some and said, "OK, son, the best way I can describe politics is to use an analogy. Let's say that I'm a capitalist because I'm the breadwinner.

Your mother will be the government because she controls everything, our maid will be the working class because she works for us, you will be the people because you answer to us, and your baby brother will be the future. Does that help any?" The little boy said, "Well, Dad, I don't know, but I'll think about what you said."


Later that night, after everyone had gone to bed, the little boy was awaken by his baby brother's crying. Upon further investigation, he found a dirty diaper. So, he went down the hall to his parent's bedroom and found his father's side of the bed empty and his mother wouldn't wake up. Then he saw a light on in the guest room down the hall, and when he reached the door, he saw through the crack that his father was in bed with the maid. The son then turned and went back to bed.


The next morning, he said to his father at the breakfast table, "Dad, I think I understand politics much better now." "Excellent, my boy," he answered, "What have you learned?"

The little boy thought for a minute and said, "I learned that capitalism is screwing the working class, government is sound asleep ignoring the people, and the future's full of crap."

Wednesday, November 03, 2010

The administration of justice in Malaysia - a glaring misconception

Frankly I think there is a serious inability to grasp the basic and foundational concept of administration of justice, be it civil or criminal, in Malaysia. This inability in turn causes serious miscarriage of justice, difficulties and untold misery to many.

Quite why this inability exists is a mystery to me as we have really good brains within the upper echelon of the judiciary, prosecution chamber, police and the Malaysian bar.

To a certain extent I think it is the attitude, the ego and the knack for an almost sadistic utilisation of powers within certain quarters that causes this inability. And it continues till this very moment.

First of all, the administration of criminal justice here consists of four separate, but essential, machinations. They are the police, prosecution, defence and the Courts. The police investigates. The prosecution decides whether or not to prosecute and if so, it proffers the charge and prosecute. The lawyers defend the accused. The Courts  adjudicate.

These four bodies are different from each other, in both form and substance, as well as duties and functions. On the face of it, their respective duties and functions are opposed to each other's. Each of them may very well have different and conflicting interests.

For example, the defence lawyers' duties are primarily owed to their client, the accused person. Their job is to defend him and protect his interests. That would, at first glance, be in direct conflict or opposition of the duties of the prosecution, whose duties are owed to the State/society as  a whole. Its job is to prosecute and secure a conviction.

On the other hand, the duty of the police is to investigate. This duty is owed to the State as a whole. Their investigation report is then scrutinised by the prosecution which may accept or reject the same. In an ideal situation, the prosecution would even tell the police that some of the evidence obtained by the police was obtained illegally or improperly. In that sense, the duties of the two may also collide with each other.

The Court on the other hand owes its duty to the State as a whole as well as to all of those who appear before it. Every Judge has the duty to perform the oath of his or her office, namely, to discharge his judicial duties to the best of his/her ability, that he/she will bear his faith and allegiance to Malaysia and will uphold the Federal Constitution at all time (see the 6th Schedule of the Federal Constitution).

The Court hears the prosecution and the defence. It conducts the trial of the charge in accordance with the law. It decides whatever questions which may arise in relation to evidence. Finally, it determines the guilt or otherwise of the accused. In that sense, the Court has the last say and its functions may be in opposition of the functions of the other three bodies.

Despite these seemingly opposing duties, functions and interests, it must be remembered that these four bodies are part of ONE system. They are but an integral part of the Malaysian administration of criminal justice.

I say integral because without any one or more of these bodies, criminal justice would not be attained.

Imagine a criminal trial without defence Counsel being present, for example. Justice would not be attained. Imagine a detention without trial, where only the police does its "investigating" duties and then it also acts as the Judge by detaining the person for 60 days without having to produce that person in Court, criminal justice is also not attained.

The absence of any one or more of the four bodies in any criminal case would render the administration of criminal justice in that case inherently faulty and at the very least, farcical.

The result is only one word, injustice. Pure and simple.

Here comes the inability to grasp the basic and foundational precept. One or more of the four bodies often invariably think that they should gang up together to procure a conviction come rain or shine, by hook or by crook. To these people, the police, prosecution and even the Courts, are the machinations of the State, whose job is to obtain a conviction. The defence is the stumbling block. It is the ENEMY and therefore the defence should be treated with utter contempt befitting that which is applied against the enemies of the state.

That is the problem in a nutshell. And to further turn the grey water of justice even darker and murkier is the fact that some Judges do actually think that they are but part of the State's machinations to ensure a conviction! Thus we a have a situation of two bodies (police and prosecution), if not three (including the Court), ganging up together against the defence (the enemy).

Much of the bad press we read day in and day out about how shabbily some accused persons are treated nowadays are due to this moronic and misplaced idea of criminal justice.

These people forget that even though the four bodies bear different duties and responsibilities, at the end of the day they are an integral part of a system to ensure criminal justice. Criminal justice is only attained when the truth, and nothing but the truth, is uncovered and a fair and just decision is arrived at by the Court.

They forget that in this system, these four bodies are supposed to sit on a level field, each doing their part in the system, with no one body sitting above any others. Not even the Courts.

However, more often than not, the Courts think that they are the all and be all of this system. Just because they have the last say in making a decision, they think or perceive that they are the god of justice and that everybody else within the system should bow and kow tow to them at all times!

I suppose some people are still living in the feudal past!

Lately the Courts are so concerned with speed. It is as if suddenly the Courts have become an F1 team. The thing which really irritates the bejeezus out of me is the seemingly nonchalant attitude displayed by the Courts on fairness and justness. It is as if when a case is disposed, justice is done. As if the way it was disposed, the rationale for the disposal and everything else is secondary or rather not relevant.

Thus we hear of a case - a very real case - in the appeal Court where a pregnant lady Counsel had to, in the middle of the hearing, ask for a postponement because she was getting contractions! Apparently, she was arguing her case while her husband was waiting outside the Court just in case she went into labour.

And she did go into labour! How did this totally unfortunate event happen? Well, I was told that when the case was to be fixed, she did tell the Court not to fix it on that particular date as she was due to deliver. The Court had, inhumanly I must say, rejected her plea and fixed the hearing on that particular date nevertheless.

Such is the cold,  insensitive and inhuman approach taken by the Court when fixing a case for trial or hearing nowadays. Not all Courts, but some. And why is this approach taken? Well, because the Courts have to fulfill their KPI for disposal of cases every month I suppose.

Then we heard about a Court in Johor which suddenly brought forward a criminal trial without any reason whatsoever. The Counsel appeared in Court and told the Court that his client could not be traced. That was a reasonable excuse as his client, the accused person, was supposed to originally appear in Court at a later date.

The Judge was having none of that and issued a warrant of arrest. The accused person, through no fault of his was arrested. He was put in jail for a week before a High Court Judge freed him.

The accused person, just because the Court had merrily and without justifiable reason, brought forward the trial of his case, spent a week in jail for nothing. Why? Again, I would hazard a guess that the Court had brought forward the trial date because of the "speedy principle", I suppose.

I have a term for this. I call it "Speedy Gone-Justice".

During a trial, there are Judges who do not allow Counsel to cross-examine. There are Judges who take over the cross-examinations. There are Judges who force Counsel to admit the contents of documents. All in the name of expediency.

The fact that now our Courts are so fast and quick have become a source of pride to some people. These people go around town telling how even the Singapore Courts are impressed. I just want to laugh!

The Courts, to my mind, should stop playing god and get off  Mount Olympia and come down to the level playing field. It must soon realise that it is but only one part of the system which we have. It should bear that in mind.

Do I have to write about the prosecution and the police? On how they behave and conduct their affairs in the administration of criminal justice in Malaysia? Just look at the embarrassing and purely unethical way the prosecution is holding on to the clinical  notes of the three doctors in the Anwar Ibrahim sodomy trial as a prime example.

Shouldn't the priority be the attainment of justice? And does not justice mean the truth? And how to achieve the truth if relevant evidence are concealed? And without truth, do we get justice?

The prosecution has surely lost the plot. To them, all that matters is the procurement of a conviction, by hook or by crook. And to achieve that, the truth is consigned to somewhere within the dark dark recesses of their mind.

How sad.

As for the lawyers, it is the same story. Lawyers now argue for the sake of winning a case and that is all. They forget that above all, they are the officers of the Courts. That is paramount.

There is no more camaraderie among lawyers anymore. The other week, a top lawyer actually objected to an application for postponement by his opponent on the ground that the opponent's lead Counsel was undergoing cancer treatment!!! Unbelievable. But true.

Granted, his opponent had other eminent Counsel in the team. But the lead Counsel of choice was undergoing a cancer treatment. And yet this senior lawyer objected to a postponement vehemently. I wonder what he would do if he was in his opponent's shoes.

While I was doing my pupilage in 1986, my Master came back from Court one day. In exasperation he said "one of these days I would have to advise my clients to fight it out on the street."

I think, 24 years later, the time has come for me to do just that.

Friday, October 22, 2010

1st World Summit of Everything First

Keynote address by the 1st Chairman.

Ladies and gentlemen, firstly, it gives me  great first pleasure to welcome all of you, the first ever delegates to the FWSoEaAF, the 1st World Summit of Everything and Anything First.

I am, as all of you would have firstly noticed,  the 1st self elected Chairman of this 1st World Summit.

Allow me to firstly tell you what this 1st World Summit is all about.

Ladies and gentlemen, all of us would remember anything and everything first, wouldn't we? Our first kiss. Our first sexual intercourse. And to an unfortunate few of us - or fortunate, depending on which side, front or back, we are on -  our first sodomy. I mean, there are people who do not even bath or do the big business  for two days after their first sodomy. That is how important and memorable our first experience is.

Rod Stewart says, the first cut is the deepest. And of course, the first sodomy could be the tightest. I digress.

With full realisation that the first will always be the most memorable and important - and hopefully would never be the last - this summit is organised to celebrate everything and anything first. Welcome therefore to the 1st (ever) World Summit of Everything and Anything First.

Some of you might want to firstly know why my country is hosting this 1st World Summit. Well, the answer is simply because we are trend setting. We hold record after record of the world's first ever this and that.

Consider this firstly.

We are the first to have a fugitive who apparently ran away from our country - allegedly frightened by the misdeeds that he had done - and who nobody apparently knows where he is although he is not in any way hiding from anybody. He is definitely the first ever fugitive who is not hiding.

He could be seen  on the internet, in reports and videos, attending seminars and giving lectures. Hotshots have even gone to his house to have dinner with him and his family. However, our authorities are at a lost as to where he exactly is. And this is the same authorities which could track semen from some asses even when there was no "clinical finding" of penetration of the very same ass. That's a world first I am sure.

Speaking of semen, we are also the first country with medical forensic experts who think semen in an ass, without "clinical finding of penetration" constitutes evidence of anal sex.

That means, firstly, there could be anal sex without penetration. Then, it also means that semen from Malaysians could not only swim but also fly upon ejaculation right into an asshole. That, I am sure too, is a first.

In case you all hadn't noticed, we are also the first to have the tallest twin towers. Yes. Not one, but two tallest towers in the world. Speaking of which, we are now going to build another one, which will be taller by 11 storey than the twins.

Which brings me to another first. Yes. We are the first to include an erection into our national budget. This erection is not the government's. It is  the private sector's erection. Our Honourable Prime Minister has said it - that it is not his idea but the idea of Permodalan Nasional Berhad. However, it is included in the government's proposed budget. How and why? Don't ask me. I do not have the first clue. Whatever it is, our national budget is the first to include the erection of a building in it.

To top it up, we are also the first country to have come out with a video guide to committing suicide by self strangulation. And we are also the first to propound the ground breaking and earth shattering rule that every forensic  pathologist who theorises a death by a fall from high buildings must firstly experience such a fall before making such a theory. Soon, we will pioneer a rule to say every forensic pathologist must first die before making any theory on the death of any person.

While talking about our government initiatives, one cannot miss the fact that our government is the first when it comes to coining acronyms. We have so far had NKRA; GTP: 10MP; ETP; NEM; SRI and finally NKEA. If Minister Idris Jala later introduces the Integrated Key Economics Agenda, I am afraid IKEA would take umbrage and refer the matter to the KLHC, namely, the Kuala Lumpur High Court.

Feeling left out, our DPM cum EM had on 20th October 2010 launched the Excellent, Brilliant, Successful, Intelligent, Smart, Youth dan Young (EBSIS 2Y) programme. Yes, EBSIS2Y. The fact that the Bahasa Malaysia word "dan" is infused among the litany of the evil foreign language is also a first in the world, mind you. According to a lady friend of mine, the EBSIS2Y would be in direct competition with the  Beautiful, Intelligent, Talented, Clever and Horny - in short, BITCH - movement. Which led a guy friend of mine to quip, WTFDICAAJSMTM, which stands for "What The Fork Do I Care About Acronyms Just Show Me The Money."

In so far as television shows are concerned, we also hold several firsts. Firstly, we have the highest ratio of reality-tv shows per capita anywhere in the universe. Yes, you name it and we have it. We search for anything and everything in our reality tv shows, from footballers, to racers, to boyfriends and girlfriends.

Our annual talent-search show, namely, Akademi Fantasia, holds the award for the 1st talent-search show with the most talent-less participants on Earth.

Speaking of which, we also are the first nation to have a reality-tv show to search for an "imam" (a Muslim who leads prayers in a group). Yes. No other country has done that but us.

Soon we will be searching for our sanity in our reality-tv shows. That will undoubtedly be the first.

Speaking of racers, we should also speak about cars. We are the first country to have, as our national car, a car which come from other nation. This is particularly unique to us. We have a re-badge Mitsubishi as our "national car". Even after 24 years of existence, our national car "manufacturer" still cannot build a truly national car and it still have to re-badge a Japanese car and sell it as its own. And thus Lancer becomes Inspira. It surely is not very Inspira-tional, isn't it guys?

In the legal arena, we have so many firsts as well, Ladies and Gentlemen. We have a person who is caught and charged for sodomy twice! He was imprisoned for his first alleged sodomy and soon after he came out from prison, he was caught yet again and charged yet again.

Amazing! If this happens in other countries, I am sure the people would say, "yea, rite, and semen could fly!". Oh, but then again, here, it has been proven that semen could fly. Oh dear.

Then we have our cyber authority charging the writer of a satire for publishing things which are not true although the content code of that very authority permits satires! LOL! That is definitely a first (and this statement is NOT a satire!). By the way, which satires are true? ROFL!

Speaking of funny things, we are also the first country ever to have banned cartoon books.

Speaking of banning things, we are also the first country to have confirmed that the devil actually looks like the one portrayed in the Manchester United club logo. And so we banned Muslims from wearing any jerseys or whatever which depicts Manchester United logo because we are certain the devil is the one which is portrayed by the logo.

In the gastronomical aspect of things, we are the first country to have held a campaign to eat durians and muttons at the same place and on the same day. And it was at the Parliament House no less. In fact we are also the first to have slaughtered a cow at the Parliament House. Has anybody else ever done that Ladies and Gentlemen? I take your gaping wide mouth as a sign of awe, thank you.

We are also the first country to restructure one of our mega corporations into the biggest plantation company in the world which would then promptly made a loss of about 900 million! It surely looks like small is better in our country.

Speaking of corporations, we also have a corporation which is making billions in turnover and profits over time but is still being "compensated" by our government for not being allowed to raise toll rates. In other countries, people are compensated when they make losses. But we are the first to compensate entities when they are making billions!

Despite being lumbered with the responsibility of paying these "compensations," we rush to extend this corporation's concessions for longer periods of time. By doing that we have to pay them further "compensations" in the event toll rates are not raised.

Then we are also the first country to pioneer this negotiation technique whereby a certain pre-set price would be increased - as opposed to actually decrease - after negotiation. This negotiation technique has been used for the cost of our new palace, for instance, where the pre-set cost was about 450 million but it was increased to about 800 million after employing this new and pioneering negotiation technique. No other country has managed to do this. We are the first!

Socially, we are also the first to have to remind our fellow citizens that they are not immigrants or "pendatangs". Lol!

Over to the south, if a certain former Premier had his way, we would be the first to have built a crooked bridge.

Speaking of whom, that very same former Premier, who had always boasted to everybody that his rule was among the most democratic rule on Earth, had created a first of sorts when recently he expressed his admiration for Communist China.

First class.

Ladies and Gentlemen, a round of applause for everything and anything first.

Wednesday, September 29, 2010

The human factor - World Bank agrees with this blog!

On September 24th, this blog published GTP10MPETPNKRANKEANEMSRI.

In that post, I lamented the fact that the "human factor" has always been overlooked every time our government launches an economic initiative. Among others, I said :-

"I note however, that amidst the billions which are to be spent for electronics, transportation, financial centres and whatever, only 23 billions are to be spent for health services. And education will only see a 20 billion spending. Agriculture, the bedrock of our rural socio-economics scene in turn would only see 22 billion of  "investment"...

That screams of major imbalances in our socio-economics engineering (or re-engineering) processes."

Later, I added :-

"The thing is, Malaysia had no, notable or at all, industrial culture. One cannot start a culture by simply cutting a pink ribbon to a large industrial factory or plant. The support industries must be there. The whole infrastructure must be there. The human resources must be there. The experience from being knocked down and learning the hard way must be there. The whole networking must be there."

And finally, I said :-

"Whenever Malaysia unveil an economic plan, scant regard is paid to the human factor. We only focus on the money factor and almost nothing else.

What about the human factor? None is projected for human development and human resource development other than the scant 20 billion provided for the education sector."

I wonder whether anybody in PEMANDU would agree with me.

However, the Malaysian Insider, on 28th September 2010 quoted a report by the World Bank saying among others :-

"Malaysia is lacking in investment in human and physical capital leading to domestic savings greatly exceeding domestic investment."

"The bank noted that Malaysia, like its fellow middle-income neighbours Indonesia, Thailand and Philippines, is trying to move out of the middle-income trap but said it requires investment in infrastructure, equipment, education and skills in levels far exceeding what they are currently experiencing, which is well short of the Republic of Korea, Japan, and Singapore when they were at similar per capita income levels, when they were at the same development stage." (emphasis is mine)

The point which I was trying to make is that we seem to be far pre-occupied with physical and material developments without taking into account our capacity, as a people, to ignite, deal and cope with those developments.

We cannot underestimate the effect of non-organic economic growth on our society. Have we ever researched the rempit culture and various sub-cultures which emanate from it, for example? Has it any correlation with lower-income and lower-education group? Where do these people live? What kind of residence do they live in? What job do they do?

A case directly on point. What happened to the FELDA settlers in Negeri Sembilan who got about a million ringgit each after selling their land to a corporation for mass development some years ago?

Have they managed to double up their money by now? Or have they lost their money? How many have invested their money? What kind of investments, if any? How many have ventured into businesses?

I have heard stories of them marrying another wife. Some bought Harley Davidson. There are some who are involved in family disputes over the money. And some have lost everything after being cheated.

This is precisely the point. Those people were not used to having wealth. That however does not mean they are not supposed to have wealth. But the growth of their wealth has to be organic. Otherwise they would just go to waste.

By suddenly getting rich, they were hard pressed on how to behave; how to use their new found wealth properly and how to manage their wealth. In the end, their wealth became a burden on them. It became a source of family disputes. It became a home breaker as they seek humanly pleasures which were hitherto unavailable to them. At the end, some of them lost the money and their family too. What a debacle!

That is one of the human factor which we fail to even think about.

In Putrajaya, the Court building (Palace of Justice) is one of the nicest building anywhere in Malaysia. It must have cost hundreds of millions.

Here we are, in a multi hundred million building, where the highest Court of the land reside; where commercial disputes worth billions of dollars are adjudicated by learned Judges; where matters pertaining life and death are heard and determined; where civil liberties and freedom are discussed, argued about and determined. But just go to the canteen.

Behind the long table, the boys and girls serving us do not even look at us when we order our cup of teh tarik and nasi lemak. While taking our orders, they will be talking to each other. They don't even care to wear suitable clothing and on some days, they even appear dirty and unkempt. They never smile. You ask them more than two questions and they would give you a sour face. And their face look as if they hate to be there and they can't wait to be somewhere else.

We seem to be able to erect buildings of massive proportions; of beautiful architecture and of monumental cost. But what we lack is the human factor. The mere fact that we did not even think of housing in that building a proper restaurant fit for the people who work there and visit the building speaks volume of our innate inability to properly plan a building and all it's necessities. (On this note, the Petronas Twin Towers also do not have a nice restaurant opened to the public on top of the building to enable visitors to enjoy the height of the then tallest building in the world and the sight it offers - strange!).

The World Bank has just validated what my thinking is. We lack human and  physical capital. And it espouses us to seriously look into "investment in infrastructure, equipment, education and skills" as we seem to need them in  "levels far exceeding what they (we) are currently experiencing."

The government will of course counter this argument by saying we have been producing thousands of graduates with skills in various disciplines yearly. Really? We have been producing graduates, yes. That I wholly agree. In various disciplines. Yes, I wholly agree with that too. But with skills? That I hesitate to answer.

I do not doubt the physical infrastructure that we have. The cost is however frightening. And the quality sometimes is doubtful. The usability is another matter altogether.

What is terribly clear from the recently announced initiatives though is the pittance that we are going to spend on education, healthcare and agriculture. The first two affect the whole country while the third one is the traditional rainmaker in our rural areas.

What that will create is serious imbalance between the haves and have-nots; between the urban and urbanites on one hand and the rural and its people on the other.

I am afraid that despite achieving the high income nation status (if ever we did), the gulf of divides in our society would just widen and deepen, bringing this nation into classes and sub-classes of people, each with different priorities and needs and with different attitudes, behaviours and social and economics - and even political - methodology.

As a nation, we would have failed miserably by then.