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Friday, March 05, 2010

Of sodomy, caning and potato chips

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And so there we have it.

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

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

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


John Baptist said...

Potato chips of course! :D

Kris said...

LOL John :)

Reflective of the maturity of our society or just reflective of the maturity of our system? My money would be on the latter...

It really boggles the mind to think we have people in Malaysia who have reason and intellect whilst those entrusted with power and administration show far less than possessed by a flea. The result of patronage no doubt versus meritocracy...brown nosing does stifle the brain somewhat...both in the giver and receiver...hmmm...maybe that should be made illegal...would that be unconstitutional?

donplaypuks® said...


Here, the potato chip question will be given preference by our learned windbags. Why?

Becoz anyone with even a "bought" law degree can crisply rule on it. Heh, heh, heh, a bit lame but still laughable.

Why, you may even aspire and be elevated to the office of chief justice without putting in an appearance in the higher courts at all in your career!

Sodomy and caning? That would require having a brain, training it to "indulge" in deep thinking and an undestanding of freedom, liberty, the philisophy of Mills and many others.

And worse, you will have to write a reasoned judgement that other learned men and women may read and criticize! We can't have that, can we?

No, funny Grecian (See,I told you. See how Greece has gone bankrupt) and Western concepts of Aristotle and Plato are not for us. Look East, but export West!!

Show me damoney!!

We are all of 1 race, the Human Race

Anonymous said...

Haha ... well said, John!!

The idiocy of the current breed of judges is definitely mind numbing.
It is a wonder that many shower accolades upon accolades upon the one man responsible for it all - Mahathir- for creating such crippled minds to sit as our judges.
To think that the Israelites once trusted the judges to rule over their nation ....

Anonymous said...

Justice can only come from honourable men and women. Now we have scums, with questionable qualifications becoming judges. What can one expect from them?
They don't even understand the law. That's why they stopped your arguments and wanted get over with the case.
Our Judiciary is meant to protect UMNO and not dispense Justice.

rob said...

It reminds me long ago a sketch from Not the Nine O'clock News featuring a very young Rowan Atkinson, Pamela Anderson, etc.

A thief was brought before one of the learned judges. And the judge exclaimed surprise at each of the exhibits - digital watch, walkman ... yes it was that long ago until he came across an inflatable doll. The judge went on and gave a highly explicit description of the doll ...

Yes, sorry but I digress ...

normal programming will resume soon


Richard Cranium said...

May I also offer this observation, racist as it may seem.

In my years of dealing with Malays in positions of authority, I find that most of them are unable to accept critiques of their decisions.

I think this is rooted in the Malay culture of respecting the elders. They will equate any disagreements with "talk-backs".

Eyes Wide Open said...

the learned judges can't very well jeopardise the "other" sodomy case now, could they?

Anonymous said...

I agree, its not about right and wrong, the Judge is duty bound to hear the argument in its totality,
if he just jumped straight to the penal code, then judges are not needed, judges must dispense justice
and to do this they need to give a fair hearing, no matter what the argument is.
The Judge said this :
"are you saying that (homosexuality) among consenting adults is legal? In other words, what happens in the bedroom is none of the government’s business?"

I can asked the learned Judge : Is your honor aware that Oral sex is an offence under the penal code ? Has your Honor at some time indulged in it ?
Does your honor also believe that no married couples in the country indulge in it ?

In the ongoing trial of the 2 Perak "frogs" (Jamaluddin Mohd Radzi & Mohd Osman Mohd Jailu
MACC did not micro manage the sting operation, they paid agent provocateur Mohamad Imran to do whatever necessary to bring to book those PKR assemblymen, the RM180mil housing project did not exist, that's why initially MB Nizar defended them because there was no such project, so how is one to take bribe ? MACC only needed to record them accepting the bribes to charge them, never mind that the project was a fabrication.
One of the counsel pointed out that framing people like that is illegal in US and UK , its called "entrapment" the judge said there is no precedent, so the counsel for the accused, asked the judge to make this case a landmark precedent.If the judge does that, It means the accused could go free on grounds of entrapment, and they will keep their positions as independents supportive of BN, call me cynical but I doubt they will be convicted and forced to vacate their seats triggering a by election in their constituencies.Here the Judge is likely to hear out all the arguments.

Vijay Kumar Murugavell

Leithaisor said...

More than once I have had occasion to say to friends that I really would like to take up law. But only to study law for the sake of learning more about what I found to be a most interesting subject.

Should I graduate with a law degree, that would just end up as a milestone marking an event in a hobby of mine; I would not practise law here in Malaysia.

My reason - much as what your piece illustrated, the justice dispensed by so many judges is far from what had drawn me to law - the gems from the likes of Denning.

Not helped by the Executive (and the party which had controlled that branch of government from the birth of Malaya/Malaysia) holding on to power with an iron fisted grip. And At least one PM reportedly opining that the Judiciary is under the Executive (the Legislature already dominated at that time by UMNO holding more than 50% of the seats).

Fast forward to current situation, with the fingers pointed at glaring shortcomings of certain judges, the courts, the A-G...

ygbenor said...

After reading the article the only argument i can say, the judges are lazy to look deeper into the issue.They are a contented lot at the expense of real justice and this is against Islam.I hope they have a real good night sleep.

Anonymous said...

Actually this is the Culmination and Crowning moment of The NEP,
"FAST-TRACK"ing the careers of dubious characters just so you get you "OWN"ed people in positions of Power, MAHATHIR WE THANK YOU.
SYABAS anda telah bejaya Murtabakkan dan Roti Chanai-kan Sistem perhakimman Negara Malaysia.


stella said...

our rights not even on par to that of potato chips... :)

Linda J said...

That's why the Uk Judges deserved to be called "learned". Malaysian judges? Podah!

walk_on_water said...

One can always choose to be sodomized while having potato chips. Sexual satisfaction from being caned afterwards can come later.

walk_on_water said...

Constitutional issues like the Fourteenth Amendment of the U.S> Constitution??

We do not have this due process clause in our federal constitution.

teo siew chin said...

any judge who sodomises lady justice with the intellectual capacity of a potato chip should be caned.

開會討論 said...

thank you for you to make me learn more,thank you∩0∩ ........................................

Anonymous said...

If it was consensual, happened behind closed doors, then why press charges? Unless they were caught red-handed. But that besides the point.

I agree with you that our judicial system is far from exemplary and we still have a long way to go. But I do believe there's still hope. Sometimes we get a bit 'unhappy' when things didn't go our way.

Based on the comments you received, my view may be a bit unpopular :-) I don't know the trail of the case, I am not a lawyer and I certainly don't hate homosexuals. (I don't support it, but I don't oppose it either). But maybe I can see why the judge stop the argument midway. You were spot on when u said that the decision would set a precedent and guidelines to all Malaysians. Perhaps that is exactly what the judge trying to avoid. Setting a precedent. Creating a basis for further arguments, risking the possibility that one day a very smart lawyer can argue that homosexuality is not illegal. Human laws are not perfect. There's always loopholes. Cause human flawed. The possible consequences are just too huge to society, to religious institutions (all religion in M'sia), to his conscience. I personally don't think that by not hearing the argument made him less intellectual. I think it was a concious decision. Perhaps there's a bigger picture that not everyone can see. But that's just me :)

p/s: who cares if the judge in UK listen to argument about potato chips. What's the worst that could happen? maybe some factory had to incur higher raw material cost. No wonder they have backlog of court cases.


art harun said...

Dear Anonymous (who signed off as “algae”),

Thanks for your input. And don’t worry about being unpopular. We are not in it to be popular. 
Of course there is hope for our judiciary. There are some really good judges in our Courts whom I know work very very hard, are honest in their works, diligent and conscientious?
I can’t help but to reflect on your “bigger picture” argument and I have to disagree with you on that. Judges have got no business thinking of the “bigger picture”. Their duty (and this is a TRUST of the seat of justice which they occupy) is to listen to both parties before them, consider the arguments and facts and decide impartially in accordance with the law and not in accordance with what they think is correct for the society. Of course if what is correct for the society – as they think it is – coincides with the correct application of the law, that would be an ideal situation.
You said that we get a bit unhappy when we do not get our way. Well, we are human after all. But the case which I am commenting on does not have anything to do with me at all. I see a loss opportunity and probably – and I say this with the greatest of respect to the Judges – a dereliction of duty. And I state my case as such not because of any personal reason or interest. I state it because I want to see the right thing being done in the right way.
Who cares if the UK CoA makes a decision on potato chips? Well personally I don’t care too. But it reflects their deep commitment and sense of duty, a duty which they feel owed to the seat of trust which they occupy. Regardless of the comedic issue involved, they sat to listen to a Queen Counsel – no less – on the issue. They pondered. They considered. And they judged.
And I feel that’s how it ought to be. Don’t you think so?
Just imagine you are a Counsel. You have a huge responsibility. Your client is going to have 22 stroke of the cane and facing 60 years of imprisonment. You have constitutional point of law to raise. And they are unconventional. Apart from the case at hand, you feel you are contributing to the vibrancy of the law.
And what do you get? You get brushed aside. Told to hurry up. And immediately after the case, a decision was made.
And no reason was given.
You tell me how you would feel. And how your client would feel. And his family. And the people in the gallery. And the people and society at large.
Has the trust of the seat of justice been performed?

katztales said...

Why am I not surprised?

Anonymous said...

Sorry Sir, I have missed reading this interesting and yet disturbing post of yours. I am just a layman who could only look at the superficial aspect of the case.

I find it unbelievable and shocking that the sentence of 60 years and 22 strokes has been handed down for such a so-called “crime”, which by today’s standards, is acceptable in certain sections of society. This archaic law has to be reviewed.

Anyway, the heavy sentence is an “overkill” I must say. A recent sentence for manslaughter is only 12 years and even if the “crime” constitutes statutory rape as the boy would be under the age of consent, the sentence should never be that heavy.

I really do not know what our judiciary has become since the sacking of our Lord President Tun Saleh Abas. I feel sad for Malaysia. The British has left us with so many good things such as laws, education system, etc and we have messed it all up.

Sir, please continue in giving us your sound and sensible views especially on justice and fairness. It is indeed a good and noble cause to pursue. Take care.


Anonymous said...

Sir, I agree with you in totality. I had the opportunity to be with my better half during a bankruptcy matter in front of the Senior Assistant Registrar about 2 years ago and I saw with my own eyes how swift is "justice" dispensed with in this land of ours. There is no compassion, fair play at all. You add to this cocktail judges who are too pleased to curry favour with the powers that be...

Old Fart said...


Come on. Be fair. You know as well as I that many if not most sitting on our benches think their present position is thanks to the UMNO led government. Can they do anything without first wearing the UMNO cap?

Just imagine. If they had let your learned friends' arguments to form the basis for employing their underutilised brains to think and ponder, they would have known that in the first instance theirs were under-developed and, therefore, not ready to have to deal with the intricacies of what was being asked of them. It would be easier and safer for them to dismiss forthwith as that would require less effort when demanded to write the reasons for their judgment. Any effort beyond that would show them for what they really are. Misfits put in that position to protect UMNO at all costs including those that paints them to look like Mo(of The Three Stooges).

Maybe this rote that I am taking will find in your big heart an understanding of why their judgment was so. Can you imagine what that would have done to Anwar's Sodomy 2 hearing?