Loyal Followers

Thursday, February 25, 2010


This is the first time I am blogging at night.

I normally do my research at night. I then write in the early morning hours. I would then post up whatever I have written in the afternoon.

But this time is an exception. This is an exception because of a matter which is exceptionally puke-inducing. The blatant double standard. The plain hypocrisy of it all. The stupidity. The stench of bull shit which permeates the air.

Well, let me tell all of you. I am seldom rude. Let alone crude. And there existed little time when I blow up in public. But now I am blowing up. I am fucking blowing up. I could feel my blood boil. And my skin crawls with repulsion.

And what, you may ask is the cause of this very public and uncivil display of anger and disgust?

I just read a Malaysiakini report that the two so called Muslim who also called themselves journalists for a magazine which has the word "Islam" as its name are now going to escape punishment for their act of desecrating the sanctity of a church and mocking Christianity and Christians in general.

Apparently, no action will be taken "due to overwhelming public pressure". Senior ASP Anantha Rajoo was quoted to have said in his letter to the complainant that the AG Chambers have decided not to charge them.

And the file will be marked "no further action".

Huh. Since when does public pressure could be so overwhelming that the AG Chambers cower in a corner and refuse to do its sworn duty to the nation, namely, to prosecute offenders?

When one considers the speed at which certain "offence" goes to the Court, like the Sodomy 2, one wonders what the fuck this is all about. Yes. What the freaking fuck is this all about? What is it IF THIS IS NOT HYPOCRISY AND DOUBLE STANDARD?

Raja Petra was even detained under the ISA for "insulting Islam" just because he wrote some articles in English about the unbecoming conduct of some Muslims. Lesser acts have been dragged to Court because they are apparently "seditious".

And these people go away Scot fucking free?

Three women were caned - against the provisions of Federal law - for apparently confessing to having committed illicit sex. Another was sentenced to be caned for drinking alcohol in public.

Tell me that the actions of these two did not affect the harmony of our society. That they did not affect the peace. That they did not affect the interfaith relations in our society (which by the way is as fragile as it can be nowadays)? Tell me.

Excuse me. But I think this is fucking bullshit!

Wednesday, February 24, 2010

Drawing the Political Lines - a PAS-UMNO role reversal

The General Election of 1999 saw UMNO being whitewashed in Kelantan and Trengganu, losing the 2 states to PAS. In Kelantan, UMNO had a dismal run where it only managed to secure just 1 parliamentary seat out of 14 and 2 state seats out of a total of 43. In Trengganu, UMNO led Barisan Nasional to only 4 state seats out of a total 32. All 8 parliamentary seats in Trengganu went to the opposition. The full result is here.

Held just after the calamitous Anwar Ibrahim's unceremonious sacking from his Deputy Premiership, his subsequent ISA detention, black eye incident and the infamous mattress-and-sodomy-at-a-condominium-which-did-not-exist trial, the 10th general election saw the Malay electoral citizenry being split in a fashion not seen before.

The split in UMNO and the backlash from the Anwar episode, coupled with the 1997 currency crisis badly affected the Barsian Nasional's  performance. This was evident when KeAdilan, a party which was formed by the "Anwaristas" and contesting for the first time in a general election even  managed to secure 5 parliamentary seats and 4 state seats. Overall, UMNO secured only 72 parliamentary seats, reduced from the 94 seats it had from the previous general election.

The real gainer however was PAS. Capitalising on the UMNO split caused by the Anwar issue, PAS went for the jugular in this election. In the Anwar issue, PAS had evidence that UMNO was only about one man, namely, Dr Mahathir. In the currency crisis, PAS had a financial mismanagement issue. And to top it up, PAS had its perennial political love dolls providing endless political wet dreams to all its supporters. And that was the promise of an Islamic state.

As a result, PAS secured 27 parliamentary seats as opposed to its dismal 8 seats secured in the previous general election. In addition, it retained its rule in Kelantan and added Trengganu to its trophy cabinet.

While PAS and KeAdilan (as a newcomer) made considerable inroads in the political landscape of Malaysia in 1999, DAP was stagnant. It retained its 10 parliamentary seats but saw its leader, Lim Kit Siang, losing his seat. It would appear that the loose "alliance" that DAP had with PAS during that election had isolated and frightened off many of its supporters. Lim Kit Siang described the result as “a catastrophic defeat with our traditional non-Malay and Chinese supporters abandoning the party”.

As a result DAP lost its standing as the major opposition party to PAS. To rub salt in the gaping wound, Lim Kit Siang lost his seat.

The stage was thus set for a Malay showdown. Malaysia was not going to be the same, ever, again.

The lost of support from the traditional UMNO stronghold - the Malay heartland - was a blow to UMNO, the Barisan Nasional and especially to Dr Mahathir.  This jolted UMNO in general and Dr Mahathir in particular.

There were two options left to UMNO. It could discard the racial tone evident in the 1999 general election and work together with its main partners in the Barisan Nasional - the MCA and MIC - to forge a united Malaysia and focus on its economics policies to rebuilt Malaysia's badly hit economy and financial standing after the 1997 crisis and continue its march towards vision 2020. Or it could concentrate on the shifting paradigm of the Malay political power base by trying to reconquer the Malay heartland support as well as widening its appeal to a wider Malay working class.

It has been proven time and time again that when push comes to shove, an entity would always go back to its root in order to regroup. UMNO was no different.It chose the second option.

The obvious question was how was UMNO going to regain lost ground? The answer was even more obvious than the question itself.

I remember it was Lim Kit Siang who first wrote about it. Immediately after the 1999 election, he spoke of the "danger" which was lurking post 1999 general election:

“The danger of the  historic electoral setback for UMNO in the 1999 general election and the emergence of PAS as the dominant Opposition in Parliament with 27 seats and a very marginalised DAP with ten seats  is that  Parliament in the next five years will principally become the battleground between UMNO and PAS for the hearts and minds of the Malays in the Malay heartland, resulting in a spiral of Islamisation policies - threatening a democratic secular Malaysia and  sidelining all other great issues of the Malaysian people.

“There are four circumstances where such a spiral of competitive Islamisation policies between UMNO and PAS to take the centre stage of Malaysian politics  in the next five years could be avoided:

  • UMNO refusing to compete with PAS on the Islamic terrain, which is unlikely as its sole agenda in the next five years is not only to win back lost Malay heartland to PAS, but to ensure that there is no further encroachment of UMNO support in the  next election leading to the loss of state governments in Perlis, Kedah and Pahang.

  • A courageous and principled MCA, Gerakan and MIC in the Barisan Nasional which could stop any UMNO lurch towards  greater Islamisation policies, which nobody can ever hope based on the ingrained subservience of  MCA, Gerakan and MIC to UMNO hegemony.

  • A strong DAP to block such Islamisation policies, which is not possible with the marginalisation of the DAP in Parliament and Malaysian politics as a result of the election result.

  • PAS refraining from responding to any UMNO political actions to up the ante in the battle for the Malay heartland by resorting  to Islamisation policies, which is not very optimistic.

”As these four circumstances do not seem likely to exist, Malaysia is set on a very uncertain and perilous future.” 

He was correct on two counts, namely, the Islamisation counteraction by UMNO and the limpness of MCA, Gerakan and MIC to stop that process. And he was in for a big surprise on the other two counts.

It was obvious that UMNO saw PAS' political advances in the 1999 general election as a sign of the Malay's acceptance of PAS' idea of - and perhaps a desire for -an Islamic state. It therefore decided to discard its neo-liberal credential within itself and plunged head on into what it thought was appealing to the Malay masses, the Islamisation of Malaysia. To do that, UMNO had to out-Islamise PAS. UMNO must be more Islam-centric.

Lim Kit Siang was spot on.

The "Malay showdown" was not about a struggle within the Malay working class shoving each other for a bigger share of the economics pie or education opportunities. It was also not about the struggle for social justice, freedom of expression and universal rights. Nor was it about equal opportunities, a just and equitable spread of resources and empowerment. Rather, it was about the neo-religious-fundamentalists-nationalists UMNO versus the traditional left winged Islamist (I am using the word "Islamist", as opposed to "Islamic" deliberately) and PAS trying to out-Islam each other.

By 29th September 2001, none other than Dr Mahathir himself declared in an UMNO General Assembly that:

UMNO wishes to state loudly that Malaysia is an Islamic country.  This is based on the opinion of ulamaks who had clarified what constituted as Islamic country.  If Malaysia is not an Islamic country because it does not implement the hudud, then there are no Islamic countries in the world.

If UMNO says that Malaysia is an Islamic country, it is because in an Islamic country non-Muslims have specific rights.  This is in line with the teachings of Islam.  There is no compulsion in Islam.  And Islam does not like chaos that may come about if Islamic laws are enforced on non-Muslims" (source: Malaysiakini report, 29th September 2001)

There was even an added twist to the Islamisation drama in Malaysia. And this is due to the odd compulsory marriage between the legal Malays, as defined by the Federal Constitution, - as opposed to the genetic biological Malays - and Islam as a faith itself.

This brought about a political convenience to UMNO and its ilk. Why not kill 2 birds - and many others - with just one proverbial stone? In the equation of  Malay-ness to Muslim-ness, and vice-versa, UMNO found a convenient way of gaining support within the Malay mind set, whether real or on the surface, by espousing Ketuanan Melayu  and denouncing any questioning of the position of Islam as seditious, an affront to the powers of the Rulers and even a threat to national security (as evident by the illegal detention of Raja Petra Kamaruddin under the ISA for allegedly "insulting Islam").

The Malays, albeit not all of them, ate  the Islamisation bread crumbs straight from UMNO's palm. Hence the proliferation of Islamic this and Islamic that in Malaysia. To give a substantive credence to the Islamic state claim made by Dr Mahathir, a parallel Syariah High Court and Appellate court system was even established, giving them  immense powers to police morals and religiosity among the suffering Muslims in Malaysia.

This mixture of  racialist-nationalist-Islamist stance formed a potent counteraction to PAS' Islamic-hudud state aspiration.

The real losers were however not PAS. They were the peace loving Malaysians in general and in particular the urban as well as the open minded Malays of the working class who saw their freedom and liberty being eroded by a double edged sword. They are quite obviously not Malay enough and/or Muslim enough.

The hardliners' nationalist-Islam-centric policy was given a different dimension and approach during Tun Abdullah's time as the PM. He propounded Islam Hadhari, a set of Islamic driven rules which he thought would assimilate - and hence consolidate  UMNO's Islamist agenda - the Islamist-fundamentalist hard line position with progressive thinking. This was given large propaganda by the state controlled mass media.

Regardless of the apparent softening and progressive nature of the Islamic images portrayed by Islam Hadhari, the Islamist-fundamentalist stance continued quite relentlessly at the ground level. For instance, after Abdul Malik Mydin swam for more than 17 hours across the English Channel, questions were raised in Parliament by UMNO parliamentarians on how Abdul Malik could have prayed while doing so! (source: Lim Kit Siang's article). That was obviously an effort to out-Islam PAS in the Parliament.

Similarly, when Malaysia's first astronaut (to borrow the Government's terminology) was preparing to go to space, it was thought important that a guideline should be announced by the ulamaks on how he could pray in space.

Such was the inclination to display the government's Islamic credential in opposition of PAS' brand of Islamic-hudud ideology.

In football, Manchester United is famous for absorbing attacks after attacks before making a swift counter attack (which would normally involve just 4 or 5 passes) which results in a beautiful goal. Why am I talking about football suddenly?

The bigger picture in politics is of course to win election and to govern the State. That is the goal. Unfortunately for UMNO, all this focus on out-Islamising PAS had taken off their attention from other real, and more tangible, grievances of the people. Blatant corruptions, hikes in petrol prices, abuses of powers, police brutality, inconsistent implementation of various policies, and general wrongdoings were issues which the people observed and kept in their heart. To top it up, the widening accessibility to real news via the Internet had made the people, particularly the younger generation, more aware of the social and political landscape of Malaysia.

The people grew more and more critical of the government. When BERSIH organised a rally to protest against unfair elections, 60000 people came out on the streets to brave acid-laced water and baton wielding FRU. When the Linggam tape surfaced, 3000 lawyers walked to the PM department demanding justice.

Anwar Ibrahim, who was just released from the prison by the Federal Court, was working overtime to create a viable alliance between PKR, DAP and of all the parties, PAS. This loose alliance consisting of a motley crew of political parties with different ideologies, approaches and even mannerism managed to unseat the Barisan Nasional in 5 states and took away the much coveted two-third majority from the BN in the Parliament in March 2008.

That was a typical Manchester United counter-attack I was talking about. While UMNO was busy attacking on the Islamist-fundamentalist front, they left their rear open (no pun intended please) and they paid a heavy price. They conceded a political goal against the run of play via an unforeseen counter attack.

And this is where Lim Kit Siang was wrong. He said in his statement above that he was not very optimistic that PAS would not respond to UMNO's Islam-centric counteraction. It was obvious that UMNO had thought the same too.

As it transpired, PAS was, and still is, a smarter political animal than UMNO - or Lim Kit Siang - would care to acknowledge. Recent post-Tun-Abdullah events would show that PAS could redefine pragmatism when necessity demands.

In forging an alliance with PKR and DAP in the Pakatan Rakyat (now, Pakatan Rakyat Malaysia), PAS had to ostensibly ditch its Islamic-hudud state aspiration. UMNO thought that this was PAS' - and hence the PR's - Achilles heels.

UMNO then began a series of surreptitious moves to de-stabilise PAS and the PR by approaching the ulamaks faction within PAS and making very public statements about a unity government between UMNO and PAS. By doing this it was clear that UMNO was running impatient with the pathetic infighting within MCA and the even more pathetic inability of MIC to ditch Samy Vellu from its leadership despite the loud and very clear signal from UMNO that he was not wanted.

In a way, this move was  a calculated one. It gave a clear signal to MCA and MIC of UMNO's willingness to go it alone without them. It also could split PAS into two factions, the hard liners Islamic-hudud state ulamaks faction (Hassan Ali, Hadi Awang et al) versus the moderate-progressive-liberalist faction (Khalid Samad, Tok Guru Nik Aziz et al). And had PAS bitten this Malay unity cum Islamist-fundamentalist gesture by UMNO, it would also spell the end of the PR.

However, as was stated earlier, PAS was, and still is, a much smarter political animal than it was thought to be. PAS rode the internal bickering through the perseverance and leadership of Tok Guru Nik Aziz and stuck with its alliance to the PR (now PRM).

Meanwhile, UMNO's Islam-centric posturing  continued in recent time. Despite the 1 Malaysia sloganeering  by the Prime Minister, UMNO has continued, through its leadership and grass root warlords, to cavort with Islamist elements, or what they perceive as Islamist elements. 

Thus we saw when some Malay Muslims carried a severed and bloodied cow head to protest against a planned relocation of a Hindu temple to their area, UMNO's top gun met and heard them and even came up with statements saying that their actions were "understandable".

We also saw when Kartika was sentenced to 6 stroke of caning for drinking alcohol in public, UMNO just shut its mouth while the Prime Minister managed to muster an advise that Kartika should appeal against the sentence. The Home Ministry, which initially said that the authorities were ill-equipped to perform such sentencing later changed its story after a demonstration of the caning in the Minister's office. As it is, Kartika is yet to be caned. Nobody knows the real reason for this legal procrastination.

(Readers should contrast these boneless act of quiet acquiescence with what Dr Mahathir did before. I remember when some religious authorities raided a beauty pageant and arrested a Malay participant, Dr Mahathir quickly made a statement condemning that action and nicely putting the religious authorities to their rightful place! If there was a thing which I admire about Dr Mahathir, it is his ability to whack anybody for anything which he disliked. )

The Islam-centric  stance came to a head when the High Court declared that the Herald newspaper may use the word "Allah" in its publication and declared the Home Ministry's banning of the usage of the word by the Herald was illegal and void.

UMNO took a real risk in protesting against that High Court decision. It risked international condemnation. It risked a backlash from Sabah and Sarawak (which are the source of 56 parliamentary seat altogether). It risked isolating the non-Muslims. But it took all these risk and protested against the decision.

Again, PAS showed its pragmatist credence by taking an open minded and more liberal stance than UMNO. Khalid Samat spearheaded  and encapsulated PAS' stance in that matter by imploring acceptance by Muslims of the non-Muslims' proper usage of the word "Allah".

UMNO paid more than what it bargained for when its apparent cavorting of the more fundamentalist elements within the Malay society - as evident by UMNO's initial willingness to allow the mosque demonstrations - resulted in churches being torched and burnt. These incidents threatened to blow into a full scale hate war when some opportunistic youths tried to burn suraus.

This however does not stop the UMNO driven government from allowing the latest display of Islam-centric actions. Three Malay Muslim women were recently sentenced to caning for illicit sex and were duly caned in secret. Contrary to the usual predisposition of the mainstream mass media to go into hysterical mode (or in Minister Rais' words, to "change mode") every time there is some news involving sex, especially at the Syariah Courts, (reflecting the society's predisposition towards anything which has to do with sex), the MSM did not carry a single report of these events until after the events! And even then, they chose an opportune time to carry the "news" in the middle of  the  Chinese New Year festivities!

This had caused outrage. MCA, UMNO's loyal partner all these while had condemned the caning. But within UMNO, even its own lady leader, the Women, Family and Community Development Minister, Senator Datuk Seri Shahrizat Abdul Jalil  supported the caning. She is now even planning a convention of sorts on the matter.

Meanwhile, the racialist-nationalist-fundamentalist stance has taken a wider road. The establishment - with a not so hidden support by UMNO - of the ultra-Malay-Muslim right-wing nationalist movement called PERKASA has brought a greater dimension to the Islamist agenda of UMNO. Although on paper, PERKASA's leader, Ibrahim Ali, is an independent MP, UMNO's apparent acquiescence to PERKASA's extreme right-wing aspirations, despite the Prime Minister's 1 Malaysia sloganeering, is all too obvious. This is amply evident when PERKASA was even invited to speak at UMNO-organised ceramahs.

It is of course within the collective wisdom of UMNO's top leadership to continue trying to out-Islamise PAS to win Malay support. And we, the lay people,  will never be able to appreciate such wisdom from the outside of the UMNO tall building.

Whether such move would bear fruits in the coming 2013 General Election in the face of greater awareness among the voters and at the risk of isolating whatever support it may still have among the non-Muslims remains to be seen.

Only time will tell whether UMNO's focus on Islam-centric moves will bring them closer to winning the Malay heartland support instead of focusing on the real and tangible issues at hand, such as:

  • corruptions such as the PKFZ saga
  • abuses of power
  • inconsistent implementation of the law by the authorities, such as the arrest of 5 lawyers trying to see their clients and the 90 students in front of Sogo as opposed to allowing 300 people to demonstarte outside the Australian Embassy
  • police brutalities (Kugan comes to mind)
  • Teoh Beng Hock's death
  • the Perak fiasco
  • sodomy 2
  • incompetence - the jet engines episode and the submarine which fails to submerge
  • the upcoming GST, petrol price hike and probably electricity tariff hike
  • the fate of our economy in the face of lukewarm foreign direct investments, massive capital outflow and declining Petronas' income

However,  the clear fact which has arisen from Malaysia's  murky political swamps  thus far is that PAS is not playing the fool's game and it's support remains intact.

It is ironic that in 2010, PAS has reversed its hard line image to a progressive driven Islamic  party in the face of UMNO's relentless Islam-centric efforts.

In 2010 Malaysia, it would appear that PAS and UMNO has rebooted and in drawing their respective political lines, they have exchanged their respective political role.

Tuesday, February 23, 2010

Caning Women - Islam or Politics*

Many have asked as to why I wrote, ‘Isu Sebatan – Islam atau Politik’ in Bahasa Malaysia [“BM”] rather than English. There are 2 reasons for this. Firstly, there are many other more capable writers who can express the same issues (and who have done so) in English. Secondly (and more importantly), writing in English feels like preaching to the converted. My main intention was to provide some fodder for thought to the BM only readers out there. The same target audience that is being constantly fed with misinformation by the mainstream BM media. The audience that forms the bulk of the voter bank in Malaysia and who have the power to shape the country whether the rest of us like it or not. Unfortunately for those who prefer BM (either by choice or not), the alternative media does not provide as many write ups or coverage to balance off the onslaught of misinformation by the mainstream media. Hence the reason the article was written in BM.

I have also received a few ‘critical’ observations on the article. The main criticism is that I am looking at Syariah in the perspective of a western trained civil lawyer and as such I may not understand the intricacies of the laws. I disagree with that observation. I have dealt with the sections in the relevant Acts as it is drafted. I am not looking as to whether it is right or wrong or taking into account the Quran or Sunnah. I also believe that the accepted principles of natural justice are compatible with Islam. General maxims of natural justice like, ‘audi alteram partem’ (the right to be heard), ‘nemo judex causa sua’ (nobody shall be a judge in their own cause) and the concept of justice must be seen to be done are universal principles. The article I wrote merely highlight the circumstances surrounding the revelation by the Home Minister and the apparent flaws pertaining to the sentencing in light of the very same enactments used.

There is also the issue of the manner in which the enactments have been drafted. See section 23 subsection (3) and (4) on the presumptions that can be made without there being express fail safe mechanism to prevent the risk of injustice. It is scary to say the least.

The translation comes with slight changes to suit the language. Please take note that I have used the word ‘caning’ and ‘whipping’ interchangeably. The media have used ‘caning’ whilst the English version of the Act in question uses the word ‘whipping’. Here goes…..

The revelation by the Home Minister on the caning carried out on 3 women for the offence of sexual intercourse out of wedlock pursuant to section 23 of the Syariah Criminal Offences (Federal Territories) Act 1997 [“Act”] has resulted in the creation of another ‘controversial’ issue for the Malaysian public. This is unfortunately just one of the many ‘controversial’ issues which have cropped up in recent times with all sharing a common recurring theme; it will be politicized to the hilt by the powers-that-be.

This new issue relating to the 3 women is no different. There have been many questions which have not been answered, among others,

a. Why did the Home Minister disclose the caning to the general public after it had been carried out when it is general knowledge that this issue has caused uneasiness when Kartika was sentenced to be caned.

b. Why the Syariah Court is so determined to use the Act to cane these women when the same Act has a section on Liwat (sodomy) which was not used on Anwar Ibrahim?

c. Does the Syariah Court have the power to impose such a punishment when the Penal Code expressly provides that women cannot be subject to caning (no matter how it is carried out)?

d. Did the Syariah Court impose the caning sentence purposely to demonstrate that it does have the ‘power’ to do so and as such at par with the Civil Courts despite the fact that the general consensus is that the Syariah Courts are a subsidiary branch of the judiciary under the Constitution?

e. Was the caning done on purpose to show that the government is more ‘Islamic’ than PAS and at the same time to bait the opposition to criticise the punishment so as to make it easier to label them ‘anti-Islam’ as how it was done for the ‘Allah’ issue and the Prophet’s birthday march?

For me, based on the conduct by the religious authorities under the control of the central government recently, it is very difficult to accept that the caning of the 3 women was done based on Islam (in the true and honest sense) and not merely another ‘move’ in the political chess game by utilising the Islamic institutions. If it was based solely on Islam in the true sense, I am sure that the Syarie Lawyers Association or the Council of Muftis would have not kept silent when Anwar Ibrahim was charged in the Criminal Courts when there is a clear and express provision relating to the exact offence in the Act.

To further support the theory that the caning was merely a political manoeuvre utilising Islam, lets look at the offence committed by the 3 women. From the media coverage, the facts as we know it are as follows:

a. The 3 women were caned when they were found guilty under section 23(2) of the Act;

b. The Minister in the Prime Minister’s Department, Datuk Seri Jamil Khir Baharom said that, “They showed remorse as they felt that the punishment released them from sin and the feeling of guilt towards Allah S.W.T.,”


c. One of the women is 17 and was pregnant when she was still in school;

d. A second woman said she had to support her family after her father left home and had a three-year-old daughter out of wedlock.

e. They turned themselves in due to feelings of guilt. They were not arrested;

http://www.themalaysianinsider.com/index.php/malaysia/53647-malaysian-women-say- caning-good-for-them

f. The punishment was carried out at Kajang Prison at 10 am on 9 February. 2 of them were caned 6 times whilst the other received 4 strokes. One of them was released last Saturday after serving one month prison sentence. Another will be released in a few days and the third will be released in June.


g. The Home Minister was quoted to have said that based on his meeting with the 3 women, he found that they have repented and they accept the punishment meted out although the caning did not cause any injuries. He hopes that the punishment would not be misconstrued to the extent that it smears the sanctity of Islam. The punishment is to educate and make them realise that even though they have strayed, they still can come back to the straight path and build a better life for themselves.


Fair Punishment?

The question that needs to be asked is whether based on the facts as we know it, the imposition of the caning commensurate the crime that was committed. Based on the section in the Act, it is difficult to see how the Judge could have imposed such a hefty sentence for first time offenders. They were caned and imprisoned.

Section 23 of the Act provides,

23.  Sexual intercourse out of wedlock.

(1) Any man who performs sexual intercourse with a woman who is not his lawful wife shall be guilty of an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to whipping not exceeding six strokes or to any combination thereof.

(2) Any woman who performs sexual intercourse with a man who is not her lawful husband shall be guilty of an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to whipping not exceeding six strokes or to any combination thereof.

(3) The fact that a woman is pregnant out of wedlock as a result of sexual intercourse performed with her consent shall be prima facie evidence of the commission of an offence under subsection (2) by that woman.

(4) For the purpose of subsection (3), any woman who gives birth to a fully developed child within a period of six qamariah months from the date of her marriage shall be deemed to have been pregnant out of wedlock.

Based on subsection (2) above, if found guilty, the office is punishable by a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to whipping not exceeding six strokes or to any combination thereof . The operative word there is ‘OR’. This means that the Judge can use his discretion based on the surrounding circumstances of the facts to choose the punishment to be imposed. Here, he chose to whip AND imprison.

Whipping is also the heaviest punishment under the syariah enactments of Wilayah Persekutuan. This can be seen in Section 133 of the Syariah Criminal Procedure (Federal Territories) Act 1997 [“Procedure Act”] which states,

133.  Power to commute punishment.

The Yang di-Pertuan Agong on the advice of the Mufti may. without the consent of the person sentenced, commute any one of the following sentences for any other mentioned after it, namely-

(a) whipping;

(b) imprisonment;

(c) fine.

Based on this section, in terms of ranking, the heaviest penalty would be whipping followed by imprisonment and the lightest being a fine. Here, there 3 women were sentenced with the heaviest punishment ie whipping. Perhaps the Judge can justify the same since one of the women has a child and is supporting her family and as such imprisonment may not be appropriate. However, all 3 women were also sentenced to imprisonment as well! They surrendered voluntarily and they were all repentant. Yet they are punished with the heaviest form of punishment? Is this the compassion in Islam?

Furthermore, every organisation and writer who is in support of the imposition of the caning take the line that whipping in Islam is to educate rather than injure or punish. If that was true, then why does the Procedure Act expressly provide that whipping is the most severe and heaviest penalty? If it was to educate, would it not be more appropriate for them to be subject to community service or be imposed a good behaviour bond (which is also provided for under section 129 of the Procedure Act) since they were first time offenders?

Another issue on the caning, according to one woman, it was fast and not painful. If it was fast and not painful and only to ‘educate’, then why cane when you take into account all the controversies surrounding the issue, in both the legal and social sense? All these factors seem to point to one direction, i.e. that it is a political manoeuvre and not an Islamic issue. It is a power issue for the government of the day to show its ‘physical’ Islamic credentials and also for the Syariah Courts to quietly and using backdoor means to raise its status to a level higher than what is provided for in the Federal Constitution.


In the Procedure Act, there are a number of sections which allow the Court to use discretion to reduce the sentence meted out by taking into account personal factors of the accused. It allows the Court to mitigate the sentence impose on the accused.

Its useful to repeat that, from the media reports, the 3 women were not repeat offenders, they surrendered voluntarily and were not arrested and they have repented. Section 129 of the Procedure Act states,

129.  First offenders.

(1) When any person not being a youthful offender has been convicted of any offence punishable with imprisonment before any Court, if it appears to such Court that regard being had to the character, antecedents, age, health or mental condition of the offender or to the trivial nature of the offence or to any extenuating circumstances under which the offence was committed it is expedient that the offender be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond with sureties and during such period as the Court may direct to appear and receive judgment if and when called upon and in the meantime be of good behaviour.

For the 17 year old woman, section 128 of the Procedure Act provides,

128.  Youthful offenders.

(1) When any youthful offender is convicted before any Court of any offence punishable by fine or imprisonment, such Court shall instead of awarding any term of imprisonment in default of payment of the fine or passing a sentence of imprisonment-

(a) order such offender to be discharged after due admonition if the Court shall think fit; or

(b) order such offender to be delivered to his parent or to his guardian or nearest adult relative or to such other person, as the Court shall designate, on such parent, guardian, relative or other person executing a bond with a surety, as the Court may require, that he will be responsible for the good behaviour of the offender for any period not exceeding twelve months or. without requiring any person to enter into any bond, make an order in respect of such offender ordering him to be of good behaviour for any period not exceeding two years and containing any directions to such offender in the nature of the condition referred to in paragraphs 130(a), (b) and (c) which the Court shall think fit to give”.

It is clear from the Procedure Act that there are sections which empower the Judge to reduce the sentence meted out. The question is that why impose such a heavy penalty? The sections above also demonstrates that the argument that the caning is to be considered as an ‘education’ rather than punishment also does not hold water especially in view of the fact that whipping is considered as a punishment heavier than imprisonment. Here, the 3 women were sentenced to caning AND imprisonment!

The manner in which the punishment was carried out and the eventual disclosure to the Malaysian public raises suspicion. There are many unanswered questions with no answers. Are these 3 women collateral damage in order for certain organisations to flex its muscles or for the government to demonstrate its physical ‘Islamic’ credentials? Why do we not hear of heavy punishment being meted out to errant husbands who desert their wives or fail to pay maintenance? The imbalance in handing out sentences for offences under the Syariah enactments does not help to counter the negative perception toward the Syariah institutions in Malaysia.

However, unfortunately, they also do not like to be criticized. Every criticism or question posed is usually met with ‘labelling’, the usual would be, ‘anti-Islam’, ‘liberal Islam’ and many others. The other common retort would be that the critic does not understand the intricacies of Islam and the worse would be that the critic is questioning God’s law which is the syariah (despite the fact that the enactments were drafted by draftsmen based on their interpretation of Islamic laws).

It is frustrating that whilst they argue that those who oppose such punishment do not understand Islam, they do not take the steps to respond in an intellectual manner based on factual arguments. Until now, despite the screams and cries from various women organizations on the manner in which the Syariah Courts treats women, we have no real cogent and clear response to the same by organizations like JAKIM or the Syarie Lawyers Association. For example, lets look at the some sections from the Islamic Family Law (Federal Territories) Act 1984 [“Family Act”],

126.  Desertion of wife.

Any person who, having been ordered by the Court to resume cohabitation with his wife, wilfully fails or neglects to comply with the order commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.

127.  Ill-treatment of wife.

Any person who ill-treats his wife or cheats his wife of her property commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.

128.  Failure to give proper justice to wife.

Any person who fails to give proper justice to his wife according to Hukum Syara' commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.

The sections above deal with mistreatment by the husband on the wife. It involves a wrong committed on third parties i.e. the wife and also the children from the marriage which may lead to negative social issues. However, such offences carry penalties which are far less harsh than personal moral crimes such as sex outside wedlock. Is this fairness? Is it not justified for women organisations to criticise the state of affairs when it seems biased in favour of the man? Perhaps, rather than embarking on sensationalist punishments, it would be better for the Islamic justice organisations to study the various other enactments to find ways to be more ‘fair’ and ‘just’?

What seems to be more and more apparent when the issue is analysed in greater depth is that it has again been carried out as a manoeuvre in the political chess game. It has nothing to do with the education of the ummah or to stem social ills. The 3 women are mere pawns in the game for political power in this country. The saddest part is that Islam has again been abused in the race for power and votes.

* This is a translated version of an earlier post in Bahasa Malaysia entitled "Isu Sebatan Wanita - Oslam atau Politik?" by Shaikh Saleem. This translated version is done by Shaikh himself.

Sunday, February 21, 2010

Isu Sebatan Wanita - Islam atau Politik?

I have been meaning to write about the abundance of hypocrisy in the caning of the three women for their alleged voluntary confession of illicit sex. However, the universe connived to prevent me from doing so in a timely manner.

However, a learned friend of mine, Shaikh Saleem, has written an excellent article about that issue. I must say everything that he says reflects my sentiments - and even more - on the issue. I can do no better than to reproduce - with his kind permission - his article on the issue.

(Readers of the Federal Court decision in the Nizam vs Zambry case would note that Zambry won by 5-0. However only ONE Judge wrote a judgment. The other 4 just agreed with the one Judge who wrote a judgment. In the truest tradition of these Judges who are inclined to just adopt a judgment written by someone else, even though the matter at hand is so important, I hereby reproduce what these Judges (who do not write judgment but just adopt a judgment) normally say: "I have had the benefit of reading my learned brother's opinion on the matter and I find myself in entire agreement with what has been expressed by him. I wholeheartedly concur with what he has written and I do not wish to add another word to his otherwise perfect opinion.")

By: Shaik Saleem*

Pendedahan oleh Menteri Dalam Negeri berkenaan dengan pengenaan hukuman sebat ke atas 3 orang wanita atas kesalahan persetubuhan luar nikah selaras dengan seksyen 23 Akta Kesalahan Jenayah Syariah (Wilayah-wilayah Persekutuan) 1997 [“Akta”] telah menimbulkan pelbagai kontroversi di kalangan rakyat Malaysia. Ia adalah salah satu daripada pelbagai isu-isu kontroversi yang timbul sejak kebelakangan ini dan kesemuanya mempunyai satu tema yang berulangan, ianya akan dipolitikan dengan semaksimanya.

Isu terbaru bekenaan tiga wanita ini tidak berbeza. Pelbagai persoalan timbul antara lain,

a. Mengapa Menteri Dalam Negeri hanya mendedahkan hukuman tersebut selepas ianya dilaksanakan sedangkan ianya adalah pengetahuan umum bahawa terdapat keresahan berkenaan isu ini pada awal lagi apabila Kartika dijatuhkan hukuman sebat.

b. Mengapa Mahkamah Syariah beriya-iya ingin menggunakan Akta ini terhadap wanita-wanita ini sedangkan Akta yang sama mempunyai kesalahan liwat yang tidak digunakan ke atas Anwar Ibrahim?

c. Adakah Mahkamah Syariah mempunyai kuasa untuk menjatuhkan hukuman sedemikian apabila ianya dengan jelas dibawah Kanun Keseksaan bahawa wanita tidak boleh dihukum dengan sebatan (tidak kira bagaimana ianya dilaksanakan)?

d. Adakah pengenaan hukuman sebat ini sengaja dikenakan untuk menunjukkan bahawa Mahkamah Syariah ini 'berkuasa' dan oleh itu 'setanding' dengan Mahkamah Sivil walaupun pendapat sepakat adalah bahawa Mahkamah Syariah ini merupakan suatu cawangan perundangan subsidiari didalam Perlembagaan Malaysia?

e. Adakah pengenaan hukuman sebat ini sengaja dibuat untuk 'lebih Islam' daripada PAS dan untuk mengumpan parti pembangkang untuk mengkritik hukuman tersebut agar senang dilabel 'anti Islam', sepertimana yang telah dilakukan dengan isu “Allah” dan perarakan Maulidul Rasul?

Bagi saya, berdasarkan tindak-tanduk pihak berkuasa agama di bawah kerajaan pusat sejak kebelakangan ini, adalah sukar untuk dirumuskan bahawa pengenaan hukuman tersebut keatas 3 wanita tersebut adalah atas berlandaskan Islam yang tulus dan ikhlas dan bukan pencaturan politik yang menggunakan institusi Islam. Sekiranya ianya adalah berlandaskan Islam yang tulus dan ikhlas, saya yakin bahawa Persatuan Peguam Syarie dan Majlis Mufti tidak akan berdiam diri apabila Anwar Ibrahim didakwa di Mahkamah Jenayah Sivil apabila terdapat peruntukkan yang sama di bahawa Akta jenayah Syariah.

Untuk menambahkan sokongan kepada teori bahawa menyebatan ini adalah pencaturan politik menggunakan Islam, mari kita lihat kesalahan yang dilakukan oleh 3 wanita tersebut. Daripada liputan media kita boleh rumuskan yang berikut:

a. 3 orang wanita telah di hukum sebat dan penjara apabila di dapati bersalah di bawah seksyen 23(2) Akta,

b. Menteri di Jabatan Perdana Menteri (JPM), Datuk Seri Jamil Khir Baharom telah menyatakan bahawa, "Mereka melahirkan rasa keinsafan sebab mereka merasakan hal ini melepaskan diri mereka daripada dosa dan rasa bersalah kepada Allah S.W.T.,”

c. salah seorang wanita tersebut berumur 17 tahun dan telah mengandung semasa masih lagi bersekolah;

d. seorang lagi terpaksa menyara bapanya dan mempunyai 3 orang anak luar nikah;

e. mereka telah menyerah diri kepada pihak berkuasa atas rasa bersalah dan bukannya ditangkap.
http://www.themalaysianinsider.com/index.php/malaysia/53647-malaysian-women-say- caning-good-for-them

f. Hukuman dijalankan di Penjara Kajang pada pukul 10 pagi 9 Feb lalu. Dua daripada mereka dikenakan enam sebatan manakala yang seorang lagi menerima empat sebatan. Salah seorang telah dibebaskan Sabtu lalu selepas menjalani hukuman penjara sebulan. Seorang lagi akan dibebaskan dalam beberapa hari lagi manakala yang ketiga Jun ini.

g. Menteri Dalam Negeri dipetik menyatakan bahawa berdasarkan temu bual dengan tiga pesalah wanita itu, beliau berkata didapati bahawa mereka insaf, reda dan bertaubat dengan hukuman yang diterima walaupun sebatan tersebut tidak mendatangkan kesan luka. “Diharapkan isu itu tidak disalahertikan sehingga mencemarkan kesucian Islam. Hukuman itu adalah untuk mendidik dan memberi keinsafan agar mereka yang terlanjur dapat kembali ke pangkal jalan dan membina hidup baru yang lebih baik,” katanya.

Hukuman Setimpal?

Persoalan yang ingin saya timbulkan adalah samada hukuman sebat merupakan hukuman yang setimpal dengan kesalahan yang dilakukan. Berdasarkan kepada Akta tersebut sendiri, ianya amat sukar untuk dilihat bagaimana Hakim boleh mengenakan hukuman sedemikian bagi pesalah-pesalah yang merupakan pesalah kali pertama. Mereka telah dihukum penjara dan sebatan.

Seksyen 23 Akta yang digunakan keatas 3 wanita tersebut memperuntukan,

“(1) Mana-mana orang lelaki yang melakukan persetubuhan dengan orang perempuan yang bukan isterinya yang sah adalah melakukan suatu kesalahan dan apabila disabitkan boleh didenda tidak melebihi lima ribu ringgit atau dipenjarakan selama tempoh tidak melebihi tiga tahun atau disebat tidak melebihi enam sebatan atau dihukum dengan mana-mana kombinasi hukuman itu.

(2) Mana-mana orang perempuan yang melakukan persetubuhan dengan orang lelaki yang bukan suaminya yang sah adalah melakukan suatu kesalahan dan apabila disabitkan boleh didenda tidak melebihi lima ribu ringgit atau dipenjarakan selama tempoh tidak melebihi tiga tahun atau disebat tidak melebihi enam sebatan atau dihukum dengan mana-mana hukuman itu.

(3) Hakikat bahawa seorang perempuan hamil luar nikah akibat daripada persetubuhan yang dilakukan dengan kerelaannya adalah keterangan prima facie tentang pelakuan kesalahan di bawah subseksyen (2) oleh orang perempuan itu.

(4) Bagi maksud subseksyen (3), mana-mana orang perempuan yang melahirkan anak yang sempurna sifatnya dalam tempoh yang kurang daripada enam bulan qamariah dari tarikh pernikahannya hendaklah disifatkan telah hamil luar nikah”.

Berdasarkan subseksyen (2) di atas, jika sabit kesalahan, hukuman yang boleh dikenakan adalah didenda tidak melebihi lima ribu ringgit atau dipenjarakan selama tempoh tidak melebihi tiga tahun atau disebat tidak melebihi enam sebatan atau dihukum dengan mana-mana kombinasi hukuman itu. Perkataan operatif di situ adalah “ATAU” dalam mana, Hakim boleh menggunakan budibicaranya berdasarkan fakta kes untuk memilih hukuman yang harus dikenakan. Di dalam kes 3 wanita ini, Hakim telah mengenakan hukuman sebat DAN penjara.

Hukuman sebat merupakan hukuman paling berat di bawah perundangan syariah Wilayah Persekutuan. Ini dapat dilihat di seksyen 133 Akta Tatacara Jenayah Syariah (Wilayah Persekutuan) 1997 [“Akta Tatacara”] yang menyatakan,

“Kuasa untuk meringankan hukuman.
Yang di-Pertuan Agong atas nasihat Mufti boleh, tanpa persetujuan orang yang telah dihukum, meringankan mana-mana satu daripada hukuman yang berikut dengan menggantikannya dengan mana-mana hukuman yang disebut selepasnya, iaitu -
(a) sebat;
(b) pemenjaraan;
(c) denda”.

Berdasarkan seksyen ini, dari segi 'ranking' bagi hukuman yang dikenakan, hukuman yang paling berat yang boleh diberikan adalah hukuman sebat, diikuti pemenjaraan dan paling ringan, denda. Disini, ketiga-tiga wanita tersebut telah dikenakan dengan hukuman yang paling berat, iaitu dengan sebatan. Mungkin ianya dapat dijustifikasikan memandangkan bahawa salah seorang daripada wanita tersebut mempunyai 3 orang anak dan menyara bapanya, oleh demikian seharusnya dikenakan sebat kepada tidak adil sekiranya beliau dipenjarakan. Tetapi 3 wanita ini turut dihukum dengan pemenjaraan juga! Mereka menyerah diri, mengaku salah dan insaf, tetapi dikenakan hukuman maksimum? Inikah 'compassion' di dalam Islam?

Tambahan lagi, setiap organisasi dan penulis yang menyokong hukuman sebatan ini menggunakan hujah bahawa sebatan di dalam Islam ini adalah untuk mendidik dan bukan menyiksa. Sekiranya benar, mengapa di dalam Akta Tatacara, hukuman sebat dianggap sebagai hukuman yang paling berat? Sekiranya untuk mendidik, bukankah lebih wajar mereka ini dikenakan 'community service' seumpamanya atau dikenakan bon untuk berkelakuan baik (yang juga diperuntukkan dibawah seksyen 129 Akta Tatacara) memandangkan mereka merupakan pesalah kali pertama?

Satu lagi isu mengenai sebatan tersebut, menurut wanita yang disebat, ianya pantas dan tidak sakit. Sekiranya pantas dan tidak sakit dan hanya untuk 'mendidik', mengapa sebat apabila diambil kira kontroversi yang menyelubungi hukuman tersebut dari segi perundangan dan juga sosial? Semua isu ini menunjukkan seolah-olah pengenaan hukuman ini adalah satu pencaturan politik dan bukannya isu Islam. Ianya isu kuasa bagi kerajaan memerintah untuk menunjukkan keislaman fizikal dan juga bagi organisasi perundangan Syariah untuk meningkatkan 'status' secara tersirat melebihi apa yang dinyatakan di dalam Perlembagaan Persekutuan.


Di dalam Akta Tatacara, terdapat beberapa seksyen yang membenarkan Mahkamah untuk menggunakan budibicaranya untuk meringankan hukuman yang dijatuhkan apabila mengambilkira faktor-faktor peribadi pesalah. Ianya membolehkan Mahkamah untuk memitigasikan hukuman keatas pesalah.

Daripada laporan akhbar, 3 wanita ini bukanlah pesalah-pesalah yang berulang. Mereka menyerahdiri dan bukannya ditangkap dan mereka telahpun insaf (menurut Menteri). Seksyen 129 Akta Tatacara menyatakan,

“(1) Apabila mana-mana orang yang bukan seorang pesalah muda telah disabitkan di hadapan mana-mana Mahkamah atas apa-apa kesalahan yang boleh dihukum dengan hukuman pemenjaraan, maka jika didapati oleh Mahkamah itu bahawa dengan mengambil kira watak, latar belakang, umur, kesihatan atau keadaan mental pesalah itu atau kepada hakikat ringannya jenis kesalahan itu atau kepada apa-apa hal keadaan peringan yang dalamnya kesalahan itu telah dilakukan adalah suaimanfaat bahawa pesalah itu dilepaskan dalam cubaan akhlak untuk berkelakuan baik, Mahkamah boleh, dengan tidak menghukumnya serta-merta dengan apa-apa hukuman, mengarahkan supaya pesalah itu dilepaskan apabila dia mengikat bon dengan penjamin-penjamin dan sepanjang apa-apa tempoh sebagaimana yang diarahkan oleh Mahkamah untuk hadir dan menerima penghakiman jika dan apabila dipanggil dan sementara itu hendaklah berkelakuan baik”.

Bagi wanita yang berumur 17 tahun pula, seksyen 128 Akta Tatacara berkenaan dengan pesalah muda menyatakan,

“(1) Apabila mana-mana pesalah muda disabitkan di hadapan mana-mana Mahkamah atas apa-apa kesalahan yang boleh dihukum dengan hukuman denda atau pemenjaraan, Mahkamah itu hendaklah, sebagai ganti apa-apa tempoh pemenjaraan kerana keingkaran membayar denda atau hukuman pemenjaraan -

(a) memerintahkan pesalah itu dilepaskan selepas teguran wajar diberikan jika difikirkan patut oleh Mahkamah; atau

(b) memerintahkan pesalah itu diserahkan kepada ibu atau bapa atau penjaganya atau saudara dewasanya yang terdekat atau kepada mana-mana orang lain, sebagaimana yang ditetapkan oleh Mahkamah, apabila ibu atau bapa, penjaga, waris atau orang lain itu menyempurnakan bon dengan penjamin, sebagaimana yang dikehendaki oleh Mahkamah, bahawa dia akan bertanggungjawab bagi kelakuan baik pesalah itu selama apa-apa tempoh yang tidak melebihi dua belas bulan....”.

Adalah jelas di dalam Akta Tatacara sendiri mempunyai seksyen-seksyen yang memberikan kuasa untuk meringankan hukuman yang dijatuhkan. Persoalannya, mengapa dikenakan hukuman yang sebegitu berat? Jadi isu bahawa sebatan rotan merupakan suatu 'pendidikan' adalah tidak munasabah dan tidak boleh diterima akal memandangangkan hukuman sebatan merupakan hukuman yang dianggap lebih berat daripada pemenjaraan. Dan disini, ketiga-tiga wanita tersebut telah dihukum dengan sebatan DAN pemenjaraan!

Cara dan gaya hukuman ini dijalankan dan didedahkan kepada rakyat Malaysia adalah amat mencurigakan. Pelbagai persoalan yang timbul yang tidak ada pihak dapat memberikan jawapannya.Adakah ketiga-tiga wanita ini merupakan hanya 'collateral damage' untuk membolehkan organisasi tertentu untuk menunjukkan kuasanya atau untuk pihak kerajaan membuktikan keislamannya? Mengapa pula tidak kedengaran hukuman berat dikenakan kepada suami-suami yang tidak membayar nafkah dan meninggalkan isteri? Ketidakseimbangan didalam perlaksanaan hukuman memberikan persepsi buruk kepada institusi syariah di Malaysia ini. Malangnya, mereka tidak suka dikritik. Segala kritikan dibalas dengan pengenaan label 'anti-islam', 'Islam liberal' dan sebagainya. Setidak-tidak pun, kritikan akan dibalas dengan dakwaan bahawa pengkritik tidak faham lunas-lunas Islam atau yang paling teruk, mencabar hukum Allah dan syariah (walaupun enakmen syariah merupakan interpretasi oleh penggubal undang-undang).

Sekiranya tidak yang mengkritik tidak faham, mengapa tidak dijawab dengan hujah? Kepada kritikan oleh organisasi wanita berkenaan dengan syariah menindas kaum wanita, mengapa tidak JAKIM, Persatuan Peguam Syarie memberikan jawapan berdasarkan hujah? Sebagai contoh, lihat seksyen-seksyen berkaitan dengan undang-undang keluarga Islam (yang menjadi asas intipati utama penubuhan Mahkamah Syariah) yang berikut:

“Seksyen 126. Meninggal langsung isteri
Mana-mana orang telah diperintahkan oleh Mahkamah supaya hidup bersama semula dengan isterinya dan dia bersengaja cuai atau tidak mematuhi perintah itu maka dia melakukan suatu kesalahan dan hendaklah dihukum denda tidak melebihi seribu ringgit atau dipenjarakan tidak melebihi enam bulan atau kedua-duanya”.

“Seksyen 127. Menganiaya isteri
Mana-mana orang yang menganiaya isterinya atau menipu harta isterinya melakukan suatu kesalahan dan hendaklah dihukum denda tidak melebihi satu ribu ringgit atau dipenjarakan tidak melebihi enam bulan atau kedua-duanya”.

“Seksyen 128. Tidak memberi keadilan yang sewajarnya kepada isteri
Mana-mana orang yang tidak memberi keadilan sewajar kepada isterinya mengikut Hukum Syarak melakukan suatu kesalahan dan hendaklah dihukum denda tidak melebihi satu ribu ringgit atau dipenjarakan tidak melebihi enam bulan atau kedua-duanya”.

Peruntukan di atas melibatkan penganiayan suami keatas isteri. Ini adalah ketidak adilan kepada pihak ketiga yang juga akan melibatkan anak-anak yang jelas akan menyebabkan isu sosial yang negatif. Tetapi yang hairanya, ia mempunyai penalti yang lebih rendah jika dibandingkan dengan kesalahan persendirian seperti persetubuhan luar nikah dan liwat. Adilkah keadaan ini? Sudah tentu ianya boleh dikritik oleh organisasi wanita apabila ianya kelihatan berat sebelah terhadap kaum lelaki? Mungkinkah, daripada membuat hukuman 'sensasi' sebegini, adalah lebih baik organisasi-organisasi perundangan Islam meneliti kembali peruntukkan-peruntukkan ini untuk lebih saksama dan adil?

Apa yang jelas, semakin dalam isu ini dianalisa, semakin jelas bahawa isu ini merupakan satu lagi taktik pencaturan politik yang tiada kena mengena dengan pendidikan umat atau untuk menangani masalah sosial. Ketiga-tiga wanita ini hanya biji catur di dalam permainan catur politik dan kuasa di negara ini. Yang sedihnya, Islam sekali lagi diperkudakan untuk tujuan kuasa dan undi.

* Shaikh Saleem is a law practitioner. He is sometimes perturbed that in Melaka, apparently, non-Muslims are prohibited from uttering his first name. He is now thinking of seeking damages from his parents for giving him a name which cannot be used, uttered, called upon or written by non-Muslims.

Friday, February 19, 2010

Proton - the saga of MV Agusta

MV Agusta and the saga of Proton - as opposed to Proton Saga - buying the former have never failed to intrigue me. I have written a piece about this a long time ago.

Just why a company, which was started to manufacture and sell value-for-money cars but which has failed miserably to do so and which has so far lived to see the sunlight every morning simply by virtue of protectionism and forced market intervention would go and buy an ailing  company manufacturing high-end motorbikes escapes my simple mind.

MV Agusta was a lost making outfit with massive debts. And Proton paid a real hefty sum (RM560 million - according to DrM). With that, pursuant to Italian law, Proton also inherited Agusta's debts of Euro 107 million. Should Agusta fall into bankruptcy, apparently Proton would have been subjected to a contingent liability of RM923 million. The original report is here. 

The question is, why did the previous board of Proton deem it prudent and in the best interest of Proton to purchase an ailing high-end motorbike company with massive debts?

The next question is why must Proton pay such a massive price for a company with obviously a negative net tangible assets leaving the whole purchase price to be treated as mere goodwill? In business term, was Agusta's goodwill worth RM560 million?

And if one were to add the contingent liability - which was crystalising faster than a Proton Waja could go from zero to one hundred - Proton was actually paying more than a billion bucks for this company!

As the story goes, after DrM was replaced by Tun Abdullah as the Prime Minister and after Tengku Mahaleel was replaced by Dato' Syed Zainal as Proton's chief, Agusta was sold at a mere Euro 1. The effect of Agusta's massive debts on Proton's balance sheet was just too much for Proton to hold on to a non-performing "asset". Added to that the legal requirement for Proton to settle the debt of Agusta in real money left Proton with no other choice but to sell Agusta.

In the real dog-eat-dog-and-everything-else business world, a company with massive debts and a negative NTA is worth....well..just a single buck. And Agusta had to go for Euro 1. Just as Tony Fernandez bought the then non-performing airline for RM1.

That of course raised the ire of DrM. He questioned why the sale for Euro 1. Recently he raised the same question again on his blog. 

This time DrM quoted from a magazine, Robb Report, that after acquiring Agusta for US 100 million, Harley Davidson has revitalised the company.

So, the picture which one gets from reading DrM's article is that Proton was stupid enough to sell Agusta for Euro 1. That conversely implies that DrM and Tengku Mahaleel were very wise in purchasing Agusta for 500 over million bucks as well as committing Proton to a contingent liability of 900 over million bucks.

But what DrM has failed to mention in his blog is that Harley Davidson had in fact discontinued Agusta's operation with a full year loss of USD 128.8 million! Please see the relevant Harley Davidson's account here.

And so it would appear that Agusta is a serial sucker puncher for those foolish enough to believe that it is a viable venture. First it was Proton who was foolish enough to purchase it at RM 560 million (this figure is from DrM's blog) and sold it for Euro 1. Then it was Harley Davidson who was yankie-doodleingly moronic enough to part with USD100 million for it.

Who is the real winner out of this? Yes. It was the party which bought Agusta for Euro 1 from Proton.

A friend of mind, Wenger J Khairy, wrote an illuminating article on the saga of MV Agusta on his blog. Please read it.

Saturday, February 13, 2010

Gong Xi Fa Cai

Happy New Year to all our Chinese brothers and sisters. May the year of the tiger bring all of us good health, prosperity, peace of mind and enlightenment.

Wednesday, February 03, 2010

Why is the AG's Chambers refusing to release evidence?

The refusal by the AG's Chambers to release some evidence requested by the defence team in the Sodomy 2 trial - and the consequent refusal by the Court of Appeal and the Federal Court to order the release of such evidence - brings to the fore questions pertaining to the right to a fair trial, degree of professionalism of the prosecution team and the administration of criminal justice in Malaysia.

Many years ago I was a part of the defence team in a Criminal breach of trust case involving the Managing Director of a government-linked company. A part of the prosecution's case was that my client was guilty of CBT because he authorised certain payments to be made to a foreign company without the sanction of the Board of Directors. Now, it does not take a brilliant lawyer to tell you that in such a case, all the minutes of  board meetings held and board resolutions made around the same time as the alleged crime would be relevant to the proceedings. If any of the minutes or resolutions showed that the board of directors had in fact approved the payment, than the prosecution's case would fall.

However, I had a problem. All the board papers had been seized by the authorities and were in the possession of the prosecution. My client did not have a copy. I therefore requested the prosecution to release copies of the board papers in order to enable me to prepare my defence. Of course, my request was not met with any kind of positive response. I then applied to the Court. The prosecution then relented in the middle of the trial. They agreed to bring the original copies to the Court and allow my team to inspect them and make copies. However the whole process was to take place in Court!

Imagine how difficult it was. This was a large government-linked company. It's board papers were contained in 2 volume of hard-cover register which ran into hundreds of pages. And we had to read through them in one afternoon in Court and make copies of the relevant pages.

That Ladies and Gentlemen, is how terribly disadvantaged a defence could be in every criminal case in Malaysia. Just imagine this. The aleged crime took place a long time ago. Memory fades and blurs. Witnesses are nowhere to be found. Documents have been seized from day one of the investigation. The defence team has to start with almost nothing save for the client's memory. If we were lucky, the client would have some notes or copies of some documents. And we will have to do with those. In the meantime, a 20 year jail sentence will be hanging over our client's head. Sometimes even a death sentence!

The concept of fundamental justice essentially consists of two principles. They are encapsulated by two Latin maxims, namely, "audi alteram partem" and "nemo judex in causa sua". The former simply means "lets hear the other side" or in legal term, the right to a fair hearing or trial. The latter literally means "no one should be the judge in his own cause" which, in day to day language, simply means that a person who has an interest in a case should not be the Judge in that case.  (This latter maxim is not relevant to the topic at hand and will therefore not be discussed further.)

The right to a fair trial essentially requires that any accused be made known the offence(s) which he is being charged for. He then must be given the chance to hear all the evidence adduced against him. He should also have the chance to challenge the veracity, truthfulness and accuracy of those evidence. Ultimately, he must be given the chance to tell his side of the story by presenting all the evidence available to substantiate or prove his defence. If the accused is somehow prevented by the Court, prosecution or by any party at all from presenting his side of the story in full - subject to relevancy of course - then he cannot be said to have been given a fair trial. Fundamental justice, in that event, is not accorded to the accused. That trial is, to borrow the American term, a mistrial.

The question which will obviously arise is this. What will happen if some or all of the evidence which is or are relevant to the defence are in the possession of the prosecution and the prosecution is refusing to release them to the defence? How then would the accused be able to present his side of the story with all available evidence? Can the Court then make a fully considered decision as the story presented to the Court by the accused is not complete?

All of us have, in one way or other, heard of the peril of suppression of evidence by the prosecution or investigating team. The most famous case would be the Guildford Four case where four Irishmen were wrongly convicted for complicity in a series of pub bombings in Guildford, England. They spent 15 years in prison together with the father of one of them, who died in prison. That is the result of police complicity in suppressing evidence as well as manufacturing evidence. It is abhorrent. Fifteen years of confinement and a death in prison. Just imagine the scale of injustice in that case.

In Australia, Andrew Mallard was convicted of murder and was sentenced to life imprisonment. He served 11 years of that sentence and was later released when it was discovered that material evidence were suppressed by the prosecution during his trial. Among the evidence being suppressed were:

  • the fact that the police had conducted an experiment where the supposed murder weapon was used  to strike a pig's head was concealed. That experiment showed injuries which were "dissimilar" than that which were suffered by the victim.
  • two pages from a report which concluded that the salt content in Mallard's shirt was not consistent with his shirt being immersed in a salt water river (he was said to have immersed his shirt in that river) was suppressed by the prosecution.
  • although he was said to have worn a particular cap on the day of the murder, the evidence of a witness who saw that particular cap in Mallard's residence at or around the time of murder was not disclosed by the prosecution.
  • sketches by a witness which showed a different person at the crime scene was not disclosed.
Those were but some of the evidence which would, if disclosed, establish Mallard's defence. However they were suppressed by the prosecution. The result is a totally wrong conviction. Mallard lost 11 years of his liberty. He was offered A$3.25 million as compensation. What is 3.25 million compared to 11 years of personal freedom and liberty? How does one fully compensate lost of freedom?

In Malaysia, pursuant to section 51A of the Criminal Procedure Code, the prosecutor shall, before the trial deliver the followings to the defence team:

  • the police report
  • a copy of any document which will be tendered by the prosecution as eveidence
  • any written statement of facts which is favourable to the defence of the accused.
However there is a qualification. The prosecutor, it is provided, shall not release the statement favourable to the defence of the accused if its supply would be "contrary to public interest".

That qualification has been the subject of abuse and misapplication by the prosecution. In the ordinary scheme of things, that qualification would only apply if the release of such statement could endanger a witness' life, for example. Or it could threaten national security. Or it could be used by the accused for any other purpose than to defend himself such that his action would be against public interest. That qualification, in my opinion should be applied with absolutely the highest degree of circumspection by the Court. The public interest must be weighed against the inalienable right of the accused to a fair trial and to ensure fundamental justice is achieved.

Lets see the evidence which the defence is asking for in Sodomy 2. They are:

  • copies of CCTV recordings taken at the guardhouse of the relevant condominium from a certain date to the date of the alleged crime.
  • witness statements of the victim.
  • chemist notes on certain analysis of certain samples.
  • medical reports which apparently show that there was no penetration.
The first and last evidence would surely be favourable to the defence and therefore relevant evidence which the accused should be allowed to present as a part of his side of the story. The Court cannot be said to be in the position to make a fair and just decision without looking at those evidence. They should, without doubt, be released by the prosecution. Regarding the CCTV clips, if it is shown in the clips that the accused did not prior to the time of the alleged offence enter the condominium, then surely it is relevant to the his defence. The position on the medical reports is obvious that it does not even warrant a mention here.

The second evidence above is not relevant to the defence. The defence is not entitled to it. Whatever the victim has said to the police is not relevant to the accused's side of the story. It can only be used by the defence to show inconsistency between what the victim said in Court orally and what he said in the statement. However, at this stage of the proceeding, it cannot be presumed that such inconsistency would take place. Whatever it is, the inconsistency by the victim, if any, does not go towards establishing the accused's defence as much as it goes towards the victim's credibility. That accused, even without the statement, would have the chance of testing the victim's credibility during cross-examination. I don't think the defence should be entitled to this statement on the basis of relevancy alone.

Be that as it may, if the prosecution planned to tender this statement as part of its evidence, then the defence would be entitled to a copy of it under the second limb of section 51A as stated above. The medical and chemist reports must also be given to the defence for the same reason.

I am surprised at the argument that the defence was going on a fishing expedition in wanting to have the evidence referred to above. How could it be said as such when the production of such evidence could establish a defence or destroy the prosecution's case? If indeed the evidence tend to establish the prosecution's case, then the prosecution has  nothing to hide and be afraid of. Nothing could change the documents or what is being said in the documents even if they are released to the accused. The attitude taken by the prosecution in Sodomy 2 is almost absurd considering that it even refused to release the police report to the defence until a the defence had to make a loud noise about it!

If, on the other hand, those evidence would tend to establish a defence, the concept of fundamental justice and the  right of the accused to a fair trial demand that those evidence be released to him forthwith.

The international community is already observing this sordid affair of charging the leader of the opposition for sodomy. The absolute incredulity is complete when it is known that sodomy takes place in abundance in a certain part of our capital, Kuala Lumpur, each hour of the night and probably even the day too and yet there is absolutely no effort to arrest the perpetrator of this offence. That this totally private act is an offence in itself is a cause for scornful remark by jurists and observers. In our charge for development, it is disappointing to note that the government will dispatch no less than the Solicitor General 2 plus a host of assistants to handle this wholly trivial charge. However, I suppose, the prerogative to charge any person for offences lies with the Attorney General and I shall make no question as to his wisdom for choosing to pursue this charge.

In the United Kingdom, the test for disclosure of evidence is encapsulated in a simple sentence, uttered in the House of Lords in the case of R v H and C [2004] 2 AC 134, at paragraph 35:

"If material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to disclose it."

So, we should ask, would  those material listed above weaken the prosecution case or strengthen the defence case? If they don't then no discloure should be made. If they however do, they should be disclosed. That is the hallmark of fair play and fair trial.  It is also the hallmark of the highest degree of professionalism on the part of the prosecution. It is like the prosecution is saying, "here is our case, and here is all the evidence, we have nothing to hide and we believe we will still win." The current attitude in suppressing evidence with the hope of catching the defence by surprise is a conduct unbecoming of a responsible and credible prosecution. This conduct is akin  to the conduct of our traffic policemen hiding or camouflaging themselves by the side of the highway hoping to catch speedsters breaking the law without first realising that the object should be prevention rather than punishment of crimes. I find it laughable to say the very least.

Perhaps it is time to change our law regarding disclosure. I would suggest that the law be amended in line with the Criminal Procedure Rules in the UK where the burden is on the prosecution to satisfy the Court that a certain documents ought not to be released to the accused instead of the other way round. Under such rules, the prosecution must serve on the defence a list of evidence which it does not want to disclose and state the reason why it thinks that those evidence should not be released on public interest ground. He must then satisfy the Court as such.

I remember Tan Sri Gani Patail, the Honourable Attorney General having said that it was his aim that the AG's Chambers would conform to the highest standard of prosecution under  his stewardship. If I am not mistaken, as part of that initiative he even directed that confession of the accused shall not be used in any criminal case without his approval. I am sure he would agree with me that the highest degree of professionalism would entail a full and complete disclosure of evidence to the accused without much problem unless public interest dictates otherwise.

It would be good if the UK Attorney General's Guidelines on disclosure could also be implemented here. Among others, the guidelines say:

"Guideline 13: Prosecutors must do all that they can to facilitate proper disclosure, as part of their personal and professional responsibility to act fairly and impartially, in the interest of justice."

"Guideline 20: In deciding what material to be disclosed, prosecutors should resolve any doubt they may have in favour of disclosure."

"Guideline 21: If prosecutors are satisfied that a fair trial cannot take place because of a failure to disclose which cannot or will not be remedied, they must not continue with the case."

It should be noted that such is the level of prosecution integrity and professionalism in the UK that the emphasis is not on winning all prosecutions but rather "personal and professional responsibility to act fairly and impartially in the interest of justice." Guideline 20 speaks volume of the aim to achieve fairness and justice that in the event there is any doubt as to whether a piece of evidence should be disclosed or otherwise, such doubt should be resolved by disclosing the evidence rather than withholding it.

The AG Chambers should be reminded that its duty is not to charge at every possible opportunity and win  every prosecution by hook or by crook. Its duty is to act professionally and impartially, in the interest of justice.