Loyal Followers

Monday, December 24, 2012

Merry Christmas and a Happy New Year!

Merry-Christmas-comics

Some mullahs would have us believe that as Muslims, we cannot and should not wish Merry Christmas. I don’t believe God is xenophobic. Or that He would be so much as feel threatened or insulted if His creations wish each other to celebrate any kind of festival.

So here we go. Merry Christmas and a happy new year to all. Have a good one and be safe always.

May 2013 be good to all of us and hope that the Mayan’s calendar did not start from year zero. Smile

Tuesday, December 04, 2012

Child Marriage – rethinking the issue

Child marriage has somewhat become something of a phenomenon in Malaysia.

In a New Straits Time report dated 13th June 2010 (republished by asiaonenews), the following was published:

“….according to the 2000 Census, there were 11,400 children below 15 years of age who were married - 6,800 girls and 4,600 boys. Of the 6,800 girls, only 2,450 were Malay. This means that the syariah court gave its consent to each of these 2,450 under-age girls to get married.

The remainder of 4,350 girls were non-Malays comprising 1,550 other Bumiputera, 1,600 Chinese, 600 Indians, and 600 others. It is not known whether they had got their licence from the relevant minister, but even if they did, it would have been illegal, since there are no legal provisions for a non-Muslim under 16 years to get married.”

The report added:

“Last year,(2009) 479 children under 15 years, two of them boys, were getting ready to tie the knot. And 32 of them were below 10 years. None of them were found to be HIV-positive.

This is based on Health Ministry statistics of premarital HIV screening for Muslims, a compulsory requirement for those wanting to get married.

However, it is not certain if any of these applications for marriage were approved by the state religious department.”

The legal age for marriage for non-Muslims in Malaysia is 18 years old. For Muslims however, the legal age is 16 years old. However, in the case of Muslims in Malaysia, the Syariah Courts are empowered to allow marriages of children who are under 16 years of age.

There are alarming and disconcerting reports about child marriages in Malaysia. In early 2010, there were reports of two marriages involving a 10 and 11 year old girls married off to men in their 40s in Kelantan. The 11 year-old was later found in a state of shock. The Syariah Courts later ruled the marriages illegal. The ground for illegality however was not based on whether there was adequate consent from the children or on their respective age but was rather based on procedural non-compliance.

Child marriages, particularly among Muslims in Malaysia, although not a societal norm, are however a socially acceptable practice among a section of the society. Mass weddings involving children are, for instance, carried out. The State lends its approval and sanction either by publicising such weddings on the front page of its mainstream newspapers or by its leaders attending such weddings. In December 2010 for instance, a 14 year old girl participated in such wedding by marrying a 23 year old teacher. This was widely reported.

Recently, the Syariah Court granted permission to a father to marry off his 12 year old daughter to a 19 year old boy. In the application for permission, it was cited that the girl had run away to stay with her boyfriend and refused to come home. Marriage was, apparently, the only solution to solve the problem and to protect the family’s honour and reputation.

If only life was that simple.

Let’s consider what the laws of this country say about children under 18 or 16. They can’t enter into a binding contract save for those which affect their necessities. They can’t even buy tobacco products and alcohol. They can’t have driving license. They can’t watch movies of certain types without an adult accompanying them. They cannot be contractually employed. They surely can’t vote in a general election. They also cannot enter clubs. Generally, a boy or man can’t have sexual relationship with any girl of 16 or less even with her consent. That would be statutory rape.

Why is that? That is because the law assumes that a girl or any person, regardless of gender, of less than 18 year old (or 16 in the case of statutory rape) is not able to give free consent. For the uninitiated, free consent is a necessary element in a contract or in sexual acts in order to determine whether the acts constitute rape or otherwise.

Regardless of the above, strangely, sexual acts involving girls of 16 or less will be alright and completely legal if she is legally married! The law is indeed an ass!

If children under 18 or as the case may be, 16 years of age, are presumed by law not to be able to give free consent to enter into a contract or to have sexual relationship – or to exercise proper judgment whether or not to buy tobacco products or alcohol – on what premise does the State legalise such sexual acts through a State-sanctioned marriage?

What is most unsatisfactory about the marriage of the 12 year old is the blatant transfer and absolution of parental responsibilities by the parents and the Courts to the 19 year old groom as well as the 12 year old bride. Reading the case, the first question which crept up in every reasonable person would be, “how can a 12 year girl have a boyfriend?” And “how can a 12 year old run from home to be with her 19 year old boyfriend?” Then, we would ask “what will happen to the 12 year old after her marriage?” “How is she going to cope with all the responsibilities that come with a marriage?” “Can she be a good mother?” “Can the 19 year old support his family?”

On 19th July 2012, Malaysia ratified the United Nation Convention on the Rights of the Child with the following reservations:

"The Government of Malaysia accepts the provisions of the Convention on the Rights of the Child but expresses reservations with respect to articles 2, 7, 14, 28 paragraph 1 (a) and 37, of the Convention and declares that the said provisions shall be applicable only if they are in conformity with the Constitution, national laws and national policies of the Government of Malaysia."

The Convention defines a child as “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”

Article 18 provides:

States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.”

Article 19 provides:

“States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.”

In view of the aforesaid provisions, which we as a nation have chosen to accept without reservation, it is thus with a degree of perplexity that child marriages, even involving girls as young as 12, are taking place without nary a thought on the welfare of the child and the responsibilities of her parents.

Monday, December 03, 2012

Corrigendum

In "Secular or non-secular? - What history tells us", I have reproduced a section of the Reid Commission report with a sentence unintentionally omitted. I wish to take responsibility and apologise for that omission. The particular section should read as follows (with the omitted part in bold):

“We have considered the question whether there should be any statement in the Constitution to the effect that Islam should be the State religion. There was universal agreement that if any such provision were inserted it must be made clear that it would not in any way affect the civil rights of non-Muslims. In the memorandum submitted by the Alliance it was stated — ‘the religion of Malaysia shall be Islam. The observance of this principle shall not impose any disability on non-Muslim nationals professing and practising their own religion and shall not imply that the State is not a secular State’.

I wish to thank the writer of Secular or non-secular: How Art Harun got it wrong on the Reid Commission for bringing to my attention the aforesaid omission. The fact that there is someone who cares enough to write a 2214-word article on my accidental and unintentional omission to reproduce 10 words from the Reid Commission is heart-warming, to say the least. I value such effort and support.

I have written to the Malay Mail, who published my said article to include this corrigendum (in a shorter form) in my next article. I hope they would accede to my request.

Thank you.

* Update : this corrigendum appears in my article published by the Malay mail today on page 14. The same corrigendum will also be sent to the Malaysian Insider today.

Thursday, November 22, 2012

Dato’ Onn Jaafar – the man who defined “Malay”

I have been re-reading “Reflections of Pre-independence Malaya” by Dato’ Mohamed Abid (Pelanduk Publications). It is a book telling the author’s personal experiences with Dato’ Onn Jaafar, the founder of Persatuan Kebangsaan Melayu Bersatu (UMNO – United Malays National Organisation) and reproducing many of Dato’ Onn’s pre-independence speeches.

Here is the man who, according to his nephew, Professor Dr Syed Muhammad Naquib al-Attas, gave the definition of “Melayu” in the Federation of Malaya Agreement 1948. The same definition is then adopted in our Federation Constitution (article 160) which stands till to date. Here is also the man who requested the good Professor to draw up the UMNO logo. That logo was apparently adopted at a meeting attended by, among others, Dato’ PanglimaBukit Gantang, Dato’ Zainal Abidin Abas, Colonel Musa, who was also known as Pak Lomak, who was the originator of the Malay ghazal. That logo too stands as UMNO logo till to date.

Perhaps Dato' Onn's humility and his tireless fight for freedom and independence could be gleaned from the advice that he gave the author when the latter was a teenager. He said the "Malays should never "sembah" anyone except God." And when somebody from a higher social order meets with somebody from a lower social order, the latter should not be ignored.

He did not only say that but he actually practised what he said. In 1927, Dato' Onn was told to leave Johor by HRH the Sultan for criticising the Sultan. As a result he spent almost 9 years in exile. On this, Dato' Onn said:

"I opposed my own Ruler because his actions towards his subjects, and as a result, I was dismissed from government service. Later, because of my subsequent opposition to the Ruler for his injustice towards his subjects, I was once again removed from my government and was banished from the State of Johor.... Are such actions the actions of one chasing after wealth and grandeur for himself?"

In 1936, he was recalled to Johor by HRH Sultan Ibrahim. He did come back. However, after the war, when he was the Chief Minister of Johor and the drive for independence was taking shape, HRH the Sultan gave him an ultimatum. He was told to choose whether to remain as the CM or accept the post of UMNO President.

Dato' Onn resigned as CM of Johor and took the position of UMNO President. He then moved to Kuala Lumpur, living in a single story house at Stonor Drive. Even though he was appointed to a post which was equivalent to the current Home Minister by the British Government and the country was in the middle of an emergency, he did not have any police protection. He said "even if you have many bodyguards, when it is time to go, you will go!"

He was clear in his direction. His understanding and appreciation of the duties and responsibilities that came with his position as a leader would put many  leaders and civil servants to shame. On the UMNO Presidency, which he held from the formation of UMNO in May 1946, he said:

"The post of President of UMNO is not one that I desire, it is one entrusted to me by the representatives. I do not wish for this or that. I was willing to shoulder the responsibility because I was aware of my responsibility, as long as the Malay people and the members of UMNO placed their trust in me."

Again, Dato' Onn practised what he said. In 1950, when accusations were made that he was not doing enough for the party and the Malays, he willingly resigned from the post. The post of UMNO Presidency, to him, is not one which is to be coveted and held on, especially when one is not wanted. He said:

"Had I known that there were some from amongst the UMNO members and the Malay people, who did not have faith in me, it would have been appropriate for me to resign, in order that the post be held by one more qualified and skilled..."

After resigning, he went back to Johor. However, appeals were made for him to retract his resignation. Thousands of UMNO members marched to his house. Finally, on 27.8.1950, he was once again elected as the President of UMNO.

Clearest in his mind was the concept of fiduciary duties owed by the people in power. And the duties, in his mind, are owed to the people of the nation as a whole, and not to any particular race or people. To him a Minister is subject always to the law. And he or she must discharge his responsibilities solely for the benefit of the country and the people. He said:

"It would appear that some people of this Malay homeland have the mistaken impression that one holding the post of Minister of Education may do whatever he or she wishes, without needing to consider the Country's Constitution, the Federal Legislative Council or the Federation of Malaya Agreement....

As for myself, who was proposed to assume an appointment in the Ministry of Home Affairs, I pledge to this Assembly, to perform the tasks associated with such an appointment to the utmost of my abilities. ........ I will discharge my responsibilities and my tasks solely for the benefit of the country and its people."

Dato’ Onn was absolute in his pursuit for independence and the struggle for the betterment of the Malays. He did not see the fight for independence as just that, namely, the fight for freedom just for the sake of it. In his words:

“We have heard the cries for freedom before. One may say that these cries have existed since the creation of the world, because to want freedom is a natural tendency, but acquiring real freedom is not easy. ….

What is the use of reaching for the moon, if we cannot grasp it? The only way is that we must have initiative to find the best path to follow in order that we may extend our reach so that we may grasp the moon. Cries of freedom, bathing in blood, and so on, will not cause the moon to fall into our laps. Unity, cooperation and initiative, these are the secrets of success.”

Here, I think, is a man with a clear conscience and an almost absolute grasp of what and how things should be.

Malaysia is indebted to Dato’ Onn Jaafar.

Wednesday, November 14, 2012

Hijrah

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ARTiculations mengucapkan Selamat Menyambut Maal Hijrah kepada semua umat Islam. Moga kita semua mampu berhijrah dari satu titik ke satu titik yang lebih sempurna.

Monday, November 12, 2012

Happy Deepavali

darkness_sun_by_cinawar

Here’s to wishing Happy Deepavali to all who celebrate it. May the lights of wisdom, peace and goodness continue to be shone on all of us.

Wednesday, November 07, 2012

Secular or non-secular?–What history tells us

Lately there has been a public discourse on whether Malaysia is a secular country or otherwise.

Let us take a break. And take a visit down memory lanes. Perhaps history might shed some lights on the issue.

To begin with, article 3 (1) of our Federal Constitution provides as follows:-

“Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.”

Initially, when the Reid Commission was set to draft our Constitution, the Alliance (UMNO, MIC and MCA) presented a 20 page memorandum to the Reid Commission. On Islam, the memo says:

The religion of Malaysia shall be Islam. The observance of this principle shall not impose any disability on non-Muslim nationals professing and practising their own religion, and shall not imply that the State is not a secular State.”

After 118 meetings, the Reid Commission wrote its report in Rome and published it in February 1957. On the position of Islam, it says:

“We have considered the question whether there should be any statement in the Constitution to the effect that Islam should be the State religion. There was universal agreement that if any such provision were inserted it must be made clear that it would not in any way affect the civil rights of non-Muslims — ‘the religion of Malaysia shall be Islam. The observance of this principle shall not impose any disability on non-Muslim nationals professing and practising their own religion and shall not imply that the State is not a secular State’.

There is nothing in the draft Constitution to affect the continuance of the present position in the States with regard to recognition of Islam or to prevent the recognition of Islam in the Federation by legislation or otherwise in any respect which does not prejudice the civil rights of individual non-Muslims. The majority of us think that it is best to leave the matter on this basis, looking to the fact that Counsel for the Rulers said to us — ‘It is Their Highnesses’ considered view that it would not be desirable to insert some declaration such as has been suggested that the Muslim Faith or Islamic Faith be the established religion of the Federation. Their Highnesses are not in favour of such declaration being inserted and that is a matter of specific instruction in which I myself have played very little part.”

Justice Abdul Hamid, a member of the Reid Commission from Pakistan however disagreed. He proposed to include the following article;

Islam shall be the religion of the State of Malaya, but nothing in this Article shall prevent any citizen professing any religion other than Islam to profess, practice and propagate that religion, nor shall any citizen be under any disability by reason of his being not a Muslim’.

A provision like one suggested above is innocuous. Not less than fifteen countries of the world have a provision of this type entrenched in their Constitutions. Among the Christian countries, which have such a provision in their Constitutions, are Ireland (Article 6), Norway (Article 1), Denmark (Article 3), Spain (Article 6), Argentina (Article 2), Bolivia (Article 3), Panama (Article 36) and Paraguay (Article 3). Among the Muslim countries are Afghanistan (Article 1), Iran (Article 1), Iraq (Article 13), Jordan (Article 2), Saudi Arabia (Article 7), and Syria (Article 3). Thailand is an instance in which Buddhism has been enjoined to be the religion of the King who is required by the Constitution to uphold that religion (Constitution of Thailand, Article 7). If in these countries a religion has been declared to be the religion of the State and that declaration has not been found to have caused hardships to anybody, no harm will ensue if such a declaration is included in the Constitution of Malaya. In fact in all the Constitutions of Malayan States a provision of this type already exists. All that is required to be done is to transplant it from the State Constitutions and to embed it in the Federal.”

In proposing as such, Justice Hamid was actually mirroring the memo by the Alliance. He said,

It has been recommended by the Alliance that the Constitution should contain a provision declaring Islam to be the religion of the State. It was also recommended that it should be made clear in that provision that a declaration to the above effect will not impose any disability on non-Muslim citizens in professing, propagating and practising their religions, and will not prevent the State from being a secular State. As on this matter the recommendation of the Alliance was unanimous their recommendation should be accepted and a provision to the following effect should be inserted in the Constitution either after Article 2 in Part I or at the beginning of Part XIII.”

In “The Making of the Malayan Constitution” by Joseph Fernando, the author states:

The UMNO leaders contended that provision for an official religion would have an important psychological impact on the Malays. But in deference to the objections of the Rulers and the concerns of non-Muslims, the Alliance agreed that the new article should include two provisos: first, that it would not affect the position of the Rulers as head of religion in their respective States; and second, that the practice and propagation of other religions in the Federation would be assured under the Constitution. The MCA and MIC representatives did not raise any objections to the new article, despite protests by many non-Muslim organizations, as they were given to understand by their UMNO colleagues that it was intended to have symbolic significance rather than practical effect, and that the civil rights of the non-Muslims would not be affected. “

Shortly after the London Conference the British Government issued a White Paper in June 1957 containing the Constitutional Proposals for independent Malaya. Paragraph 57 deals with the Religion of the Federation and reads:-

There has been included in the Federal Constitution a declaration that Islam is the religion of the Federation. This will in no way affect the present position of the Federation as a secular State, and every person will have the right to profess and practice his own religion and the right to propagate his religion, though this last right is subject to any restrictions imposed by State law relating to the propagation of any religious doctrine or belief among persons professing the Muslim religion.”

The Constitutional Bill was then was passed without amendment.

In an effort to mollify them, the Colonial Secretary, Lennox Boyd, wrote to Lord Reid on 31st May 1957 offering tribute and gratitude to the “remarkable” work done by the Reid Commission and stated:-

The Rulers, as you know, changed their tune about Islam and they and the Government presented a united front in favour of making Islam a state religion even though Malaya is to be a secular state.

It is interesting to note that Justice Abdul Hamid, the sole member of the Reid Commission who proposed article 3 (1) to be inserted had described the provision as “innocuous”. What does that innocuous little provision mean than?

Professor Sheridan, a well-known expert on Malaysian Constitution opines as follows:-

“A Federation, as opposed to the people within its territory, having a religion is a difficult notion to grasp….. It has been suggested that the probable meaning of the first part of Article 3(1) is that, insofar as federal business (such as ceremonial business) involves religious matters, that business is to be regulated in accordance with the religion of Islam” - The Religion of the Federation”, [1988] 2 MLJ xiii

Considering recent events, that provision has however ceased from being innocuous. Hopefully, it would not be monstrous instead.

Tuesday, September 18, 2012

Anti-hopping law – a necessity?

Rumour has it that there are some politicians flying all over the country to induce a mass party-hopping, whether before or after the next general election. This calls into question the sanctity of the people’s vote and choice at the election. And if we view this from a macro viewpoint, it brings into sharp focus the mockery of democracy that this act may result in.

The exact motivation(s) of a voter in voting for a particular candidate will be hard to ascertain. Whether the voter votes for the candidate as an individual or for the party which the candidate represents will be a source for further study. The fact that a voter actually crosses at the column beside the party’s emblem to denote his or her support for that party/candidate on the ballot paper may however provide an important, though not definitive, clue to the question.

Be that as it may, the end result of a vote for any candidate would be the formation of the government by the political party whose candidates win the most number of seats. That is the thrust of our – and in fact, every - democratic process.

It follows that when a government can be changed by several elected representatives frog-jumping from an elected government to the opposition, the democratic process whereby our government is chosen and formed would be rendered a mockery. In the same breath, when a new government could be formed by an opposition, who has actually lost the election, by virtue of the frog-jumping acts, the whole foundation and premise of that new government is the betrayal of the people’s votes and choice.

That would be a sad reflection of where we are, in terms of democratic process, in the 21st century.

Yet, parliamentary defection is not peculiar to Malaysia. GC Malhotra, in his book, Anti-Defection Law in India and the Commonwealth, noted that the defection is also known “by different nomenclatures—such as "floor-crossing," "carpet-crossing," "party-hopping," "dispute" and "waka [canoe]-jumping." In fact “crossing the floor”, according to the Australian Parliamentary Library, 2005, sometimes refers merely to the act of voting on an issue with the opposition rather than the act of defecting to another party.

In the book, Malhotra listed anti-defection laws, in varied forms, enacted by India in 1973, 1985 and 2003. The 2003 law provides that a person can be disqualified from serving in parliament for "voluntarily giving up the membership of his original party" (2005: 965). Furthermore, the Indian law permits parliamentary expulsion simply for voting (or abstaining from voting) “in the House contrary to any direction issued by the political party to which he belongs."

Kenneth Janda, in his paper, “Laws Against Party Switching, Defecting or Floor Crossing in National Parliaments” (Northwestern University, August 2009), observes that at least 8 countries see defection as a serious mischief necessitating anti-defection rules in their respective constitution. These are Belize, Namibia, Nepal, Nigeria, Seychelles, Sierra Leone and Zimbabwe. Closer to home, even Singapore sees it fit to provide in its constitution a provision which reads:

Article 46 Tenure of Office of Members

(1) Every Member of Parliament shall cease to be a Member at the next dissolution of Parliament after he has been elected or appointed, or previously thereto if his seat becomes vacant, under the provisions of this Constitution.

(2) The seat of a Member of Parliament shall become vacant;

(b) if he ceases to be a member of, or is expelled or resigns from, the political party for which he stood in the election.

Janda observed that as of 2009, there were at least 41 nations which have anti-defection laws (as opposed to having a constitutional provision) in one form or another. Perhaps, the best rationale for anti-defection laws is best summarized by Scott W Desposato, as quoted by Janda in his paper:

While switching is relatively rare in most countries, it has been common in many countries, including South Africa, Japan, Bolivia, Ecuador, Nepal, Russia, the Philippines, France, Italy, and Brazil. Such behavior is usually dismissed as an indicator that "parties don't matter," but I argue that party switching warrants study for at least three reasons. First, frequent switching makes it clear that parties do matter—otherwise politicians would not bother to switch. Second, and more importantly, switching provides a unique window on politicians' underlying preferences, including their incentives for belonging to political parties. . . . Finally, switching poses a normative problem for representation in mass democracies. Parties are the primary mechanism linking voters and politicians in modern mass democracies.”

I could add another one to the reasons proffered by Desposato. And that is the fact that switching party after an election, if not curbed, would open the democratic process to disrepute. Elected representatives are lured by opposing party with promises of economic gains, power or even threatened with blackmails.

I am of course mindful of a 1992 decision by our Supreme Court in Dewan Undangan Negeri Kelantan & Another v Nordin Salleh & Another where an anti-hopping law introduced by the Kelantan government was found to be repugnant to our Constitutional right to freedom to associate and thus, void for being unconstitutional.

I humbly opine that that decision, with respect, is wrong.

Anti-hopping law in the terms as contained in the Singapore provision above does not prohibit the elected representative from joining any party of his choice. Rather it states the result or consequence of that action, namely, his seat is deemed to be vacated. The right to associate is there. It is just that once he chooses another party, he vacates his seat. Just as we would argue that we have the right to drive a car, the mere fact that there is a provision that we may lose our license if we commit traffic offences too often, does not mean that our right to drive has been unconstitutionally taken away.

It must also be pointed out that the Supreme Court case involved a state law. I would propose that the anti-hopping law, if thought necessary, to either be passed by the Parliament as a federal law or to take shape in the form of a Constitutional provision, such as the Singaporean provision.

Now, where is the two-third majority when we need it?

Friday, August 17, 2012

Aidil Fitri

subuh

 

Saya ingin mengucapkan Selamat Hari Raya Aidil-Fitri kepada semua saudara dan sahabat Islam saya, Kalau ada yang terkasar bahasa ataupun yang mengguris perasaan, harap dimaafkan dzahir dan batin.


Kepada sahabat-sahabat yang bukan Islam, saya ucapkan selamat bercuti dan beristirehat.


Marilah kita semua saling mengunjungi sesama kita tidak kira bangsa dan agama di hari dan bulan yang baik ini.


Moga amalan Ramadhan kita diberkati Tuhan dan kita mendapat pengajaran dan iktibar darinya untuk memberi pedoman kapada kita sepanjang masa.


Kepada yang memandu di musim perayaan ini, pandulah dangan cermat, sabar dan penuh berhemah. Saya doakan saudara semua selamat sampai ke tempat yang dituju.


Dari saya sekeluarga
.

Wednesday, August 15, 2012

Section 114A and Legal Presumptions–are they fair?

Many may not realise this but the law does make many presumptions about the subject matter of its governance, namely, us.

The most famous (infamous?) and perhaps harshest presumption that our law makes is in respect of drug trafficking. Section 39B of the Dangerous Drugs Act 1952 stipulates that whoever is found guilty of drug trafficking shall be punished by death. Making things a lot easy for the prosecution is a legal presumption imposed by section 37 of that Act that any person who is found in possession of, among others, 15 grammes or more of heroin or morphine or 200 grammes or more of cannabis will be presumed to be a drug trafficker unless proven otherwise.

Without that legal presumption, the prosecution would, regardless of the quantity of the drug being in possession of the accused person, have to prove that he or she is a trafficker. That means, the prosecution would have to prove that the accused person has been doing any of the following acts, namely, “manufacturing, importing, exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering, transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug otherwise than under the authority of the Act.” Only after those facts are proven by the prosecution beyond any reasonable doubt can the accused be said to be a trafficker and convicted accordingly.

In any prosecution, the general rule is that the prosecution has to prove the charge beyond reasonable doubt. That is premised upon the maxim that a person is innocent until proven guilty. Apart from that it is thought that the prosecution represents the State and the State has all the powers, investigative authorities and resources to prove a charge and thus it is only fair that the burden of proof be discharged by the State prosecutors.

However, taking the drug trafficking offence as an example, it is thought that securing a conviction would really be a difficult task if we were to follow the said general rule. Hence the presumption.

How does the presumption work, you may ask. In Court, in a drug trafficking case, the prosecution just needs to prove that the accused was caught having in his or her possession say, 18 grammes of heroin. That’s it. No further fact needs to be proven by the prosecution. Upon those facts being proven, the law presumes that the accused person is a trafficker. The burden of proof than shifts to the accused person to prove his innocence, namely that he is not a trafficker.

How does he do that? Well he could say he wasn’t in possession. Or he could say that the drug was not heroin. Or that the heroin found was less than 15 grammes. Or he could attempt to show that he is a hopeless drug addict who consumes 18 grammes of heroin in a week and he was just stockpiling! IT may work. It may not work. Either way, it is his duty to prove that he is not a trafficker. In other words, he is presumed guilty until he proves otherwise.

That is how it works.

There are many other instances where the laws make presumptions, rightly or wrongly. Fairly or unfairly. The most interesting legal presumption is contained in section 113 of the Evidence Act 1950. Hold on to your seat ladies. That section presumes that a boy of under 13 years of age is unable to commit rape. Unlike the drug trafficking presumption above, this presumption of inability to commit rape is irrebuttable. Meaning, that presumption cannot in any circumstances be denied.

So we go to Court. A slender 42 kg lady of say 18 years old, all of 5 ft 1 inch, describes to the Judge how this boy, of 12 years 10 months of age, 5 ft 5 inches, weighing 58 kgs pounced on her one night, with a knife in hand and started to molest her. She was powerless to defend herself. He just pinned her and slashed her hand in the process. Then he penetrated her. She fought. She has got all the bruises and swollen eyes to show. Medical reports show that she was indeed raped. There were scars and lacerations all over. Trace of the boy’s semen could be found in her vagina. DNA testing proves that the boy was the person who raped her. In fact there was a video recording of the whole act because unknown to the boy, the girl had managed to leave her iPhone camera switched on for the duration of the attack.

Guess what? That boy cannot be convicted. Period!

Now, if we talk about the mother of all draconian laws in Malaysia, the erstwhile Internal Security Act, things would even get murkier. All it needs for you to languish in Kamuntingville for at least 2 years (which may be extended for a further period of two years over and over again till Kingdom Come) is a certificate signed by the Home Minister saying that you are a threat to national security. That’s it. And BOOM, you are in Kamunting doing the squats. And Dr Mahathir has ensured that you will not be able to challenge that certificate no matter how unreasonable, unfair, untrue and un-halal that Minister’s certificate is by restricting the Court’s power to review that certificate. The law prescribed that the Court can only review procedural non-compliance. That’s all. Meaning the Court can only see whether your name is wrongly spelt and things like that.

Thank God Prime Minister Najib had opted to repeal the ISA. Of course Dr Mahathir now said that we need a strong government so that we can revive the ISA. Well, whatever it is, we shall presume that Dr Mahathir knows what he is talking about.

Apart from the above, there are many instances where the law presumes an intention to commit an offence.

Basically, in any crime, there are two elements, namely, the intention (in latin, the “mens rea”) and the act (in latin, the “actus reus”). Both elements must be proven by the prosecution beyond reasonable doubt. Without either one, the charge is not proven and the accused cannot be found guilty.

However, there is a body of offences called “strict liability” offences. Here, the intention does not have to be proven.

For instance, when one is accused of being in possession of pornographic materials, the prosecution does not have to prove that he or she has the intention to possess pornographic material. All that is needed to be done is for the prosecution to show that the accused is in possession of the material in question and that would suffice. Why is it like that? Because if intention needs to be proven, the accused (in fact all accused persons) would just say they never knew the material was pornographic and therefore they never intended to commit that offence.

Beating the traffic light is another instance. The prosecution just needs to show that the accused had beaten the light. Then the laws presume that he or she had intended to do so. Without that presumption, no case would end in a conviction because all accused persons would just say that they never intended to beat the traffic light. They would say they accidentally step on the accelerator for example. Or that their brakes were not working. Things like that.

All these presumptions may sound unfair. However, in passing such laws, the Parliament has to balance the interest of the society as a whole, taking into account the mischiefs which the law seeks to prevent and its impact on the society if it is not effectively prevented against the interests and rights of the accused person. It is not an easy thing to do, achieving this balance. And sometimes, any decision which is made in this respect reeks of a certain level of arbitrariness, which is inevitable.

That brings us to the latest legal presumption which saw netizens being up in arms over the last few days culminating in an internet black-out day yesterday, namely, the presumptions raised by section 114A of the Evidence Act 1950.

This section was passed by the Parliament, quite in haste if I may say so, some weeks ago. No other than heavyweights from the ruling party itself, in the form of the UMNO Youth Chief, YB Khairy Jamaluddin and Supreme Council member, Deputy Higher Education Minister Datuk Abdullah had asked for this piece of law be reviewed and reconsidered. The reaction for cyber-space was almost inevitable and it would be entirely superfluous for me to state it here.

After the black-out day yesterday, or rather during it, the Prime Minister apparently tweeted from London saying that he had asked the Cabinet to review the said section.

Section 114A provides:

“(1) A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.

(2) A person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved.

(3) Any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved.

(4) For the purpose of this section—

(a) “network service” and “network service provider” have the meaning assigned to them in section 6 of the Communications and Multimedia Act 1998[Act 588]; and

(b) “publication” means a statement or a representation, whether in written, printed, pictorial, film, graphical, acoustic or other form displayed on the screen of a computer.”

While admittedly, offences involving publications and re-publications of offensive materials on the internet are difficult to prove and that may necessitate a certain level of legal presumption of guilt in order to achieve the balance which I’d written about above, it is the width and breadth of this section as it is presently worded that makes the presumptions rather disconcerting, if not offensive and repugnant to freedom of speech and freedom and liberty.

Under sub-section (1), anybody could be presumed to have published or republished offensive materials just because his or her name or even pseudonym appears in any publication on the internet! Even more, if his or her photograph appears with the publication, which could also invite a charge and a presumption that he or she is guilty. So, imagine this. I decide to be naughty. I then publish an article which is seditious. I use your name and put your picture. That’s it. You are presumed guilty. And it is your duty to prove your innocence!

Sub-section 2 is even more worrying for those places with a shared network. I run an office for example. I have a network registered under my name. My staff uses the network to post some derogatory remark on a blog. I am presumed guilty. The same with those outlets which provide free wi-fi service.

The ridiculousness of sub-section 3 needs not be stated. I think everybody could see that sub-section 3 is so wide in its application that even internet café owners would now have to close down for fear of prosecution.

As I had stated earlier, the burden of proof rests on the prosecution and the State because the State is the one with the all the powers and investigative authorities and machineries. For the State to promulgate this kind of legal presumption gives new meaning to the word inefficiency and investigative disability.

By reversing the legal burden and shifting the burden of proving one’s innocence to him or herself, rather than discharging the burden of proof which should rightly rest with the State, the State is showing a wild disregard to its own function as a body with all the investigative authorities and powers.

If the State, with all its powers is unable to prove a charge without relying on a crutch in the form of a legal presumption, what makes the State think that the accused person, an individual, would be able to prove his or her innocence?

I have stated that in certain specific cases, legal presumptions may be a prudent way of prosecuting a criminal case in order to strike a balance between the interest of the society as a whole and the rights and interests of the accused person. However, section 114A is hardly a showcase for such balance.

The call by the Honourable Prime Minister for his colleagues to review section 114A could not thus come at more opportune a moment.

Tuesday, August 07, 2012

The Malaysian Dream

With an overhead shot from around the baseline landing outside the court, his dream and with that, a Malaysian collective dream, ended. His opponent, dark, muscular and almost brooding, leapt in the air, turned around and ran around the court, with his arm opened wide as if he was going to take off the ground.

Dato’ Lee Chong Wei gave his best. The Malaysian spectators at the venue shouted and screamed in unison. But luck wasn’t with Dato’ Lee. Nothing much separated the two players, really. It was a gladiatorial match. An epic. The best badminton match I had ever had the pleasure of watching.

There were moments during the match when I saw moves which were almost non-human in nature. Impossible speed, almost Spider-man like agility, the will and power of men possessed with an ultimate dream, an ultimate hope to win the ultimate prize.

At one point of time, I wondered how is it to feel the weight of the hope and wish of 28 million people on one’s tiny shoulder. How does one man deal with that? How does one man carry himself knowing every move of his might disappoint 28 million people? What is in his head every time he raises his racquet to serve, to smash and to return a drop shot?

I have nothing but admiration and pride for Dato’ Lee Chong Wei and all our Olympians. For all their sacrifices, their hard works, their pains, blood, sweat and tears, dispensed in the name of national glory.

The Olympics, like any other mammoth sporting events, bring out the best and the worst in us. And the comical too.

Right after the opening ceremony, there were rumblings of how the Illuminati were at work to take over the world in the Malaysian cyber-space. Clearly some of us have really fertile imaginations. Or perhaps some of us Malaysian Muslims were just showing signs of low blood sugar level during this fasting month. And so we read about the Olympic tree being a tree which in Muslim traditions, is a tree which is sympathetic to the Jews, for example. I even received a private message on Facebook telling me that a certain Prince is the manifestation of the anti-Christ. So I suppose, this phenomenon is not restricted to the Muslims only.

Then there are people – politicians, of course - who don’t seem to know that there are moments when humanity takes over and politics don’t seem to matter. Astounding as it may be, believe it or not, there was a twit by an opposition MP saying that Malaysia will win a gold medal in the Olympics after Pakatan Rakyat “takes over Putrajaya.” Good then. Put that in their party manifesto and ask the people to vote for them in the next GE with that promise. And while we are at it, how about telling the people that Malaysia will win the football World Cup too after Pakatan takes over whatever? Just so to complete the absurdity, tell us that the middle-east conflict will be ended by Pakatan too please.

The positive side of this is the fact that Malaysians will sit together in unison to support the quest of our country-men regardless of our faith, our race, breed and creed. To my mind, unity manifests itself in two forms, namely, situational unity and transcendental unity. We experience situational unity in every aspect of our daily life. The ultimate task for the government is to foster these situational harmony into a more permanent and cohesive unity.

Malaysians have always loved sports. And as far as I could remember, sports have always been the highlight of Malaysian unity. Never in any other act have Malaysians displayed so much loyalty, faith and unity than sporting events. I am old enough to remember how all of us watched with pride when our national football team played in the 1972 Munich Olympics. How we jumped in rapturous joy when James Wong scored against South Korea to send Malaysia to the 1980 Olympics. How the whole Malaysia was transfixed when we hosted the 1975 Hockey World Cup. And in recent times, Malaysians will of course fill with pride every time Dato’ Nicol David or Dato’ Lee Chong Wei win their respective tournament.

That proves that when faced with one ultimate – and common - aim and purpose, a people of diverse cultures, faiths, and interests as well as of different race may set aside whatever differences they may have, whatever misgivings they may habour against each other and unite.

Our task, in terms of trying to foster unity and harmony, is to create that ONE aim and purpose. I suppose, we can begin by eliminating, or trying to eliminate, anything which threatens to divide us.

Or perhaps, we could just start by showing up at the airport to give a rousing homecoming to Dato’ Lee Chong Wei and our Olympians.

Tuesday, July 10, 2012

Malaysians and traffic laws – an observation

 

If ever there was a true 1Malaysia thing, a true national identity of sorts, the “balik kampung” exodus during festive seasons must be it. This Malaysian phenomenon is not unlike the more widely observed bird migration phenomenon which may precede a seasonal change in certain part of the world.

Ramadhan is near. That means Aidilfitri is not far away. That in turn means the “balik kampung” exodus will take place soon. Every year, millions of city dwellers, regardless of race and faith, will make their way home via our roads and highways during festive seasons.

And hundreds, if not thousands, will not arrive at their destination. They die on the roads.

Year in and year out the police would launch Ops Whatchamacallit to try to reduce accidents, especially fatal ones, during festive seasons. None has quite registered any meaningful success. The number of accidents, especially fatal ones, remains high.

The figures are staggering. According to a paper by the Highway Planning Unit of Malaysia[i], :-

Traffic accidents in Malaysia have been increasing at the average rate of 9.7% per annum over the last three (3) decades. Compared to the earlier days, total number of road accidents had increased from 24,581 cases in 1974 to 328,264 cases in 2005, reaching more than 135% increase of accident cases over 30 years. The number of fatalities (death within 30 days after accident) also increased but at slower rate compared to total road accident from 2,303 in 1974 to 6,200 in 2005.”

The costs of fatal accidents are obviously high. Apart from the emotional consequence, medical costs, the loss of resources as well as the costs of replacing such resources run in the hundreds of million each year.

It is time that our authorities take a serious look at this burgeoning problem. By that, I do not mean that the authorities should just install more cameras on the highways and roads, issue more summonses, go all out to collect the compounded fines and at the end of it offer “discounts” so that more offenders pay up their compounded fines. Such measures are obviously not working. They are clearly the wrong prescriptions for a misdiagnosed disease.

The fact is, we Malaysians are serial traffic offenders. And regardless of enforcement of the laws, we could not care less. The big question is, why?

I believe the problem is one of culture rather than legal. Allow me to explain.

Culture and cultural practices shape the laws. It is not the other way round. Thus we see the laws in various part of the world being interpreted or implemented according to the changing norms of culture and cultural practices. Italy and Australia, for example, (and a host of other Western countries, such as Canada) are now grappling with the defence of “honour killing” in murder prosecutions. This arises from the influx of Muslims immigrants who are naturalised as citizens. Although honour killing is not yet an acceptable defence, Judges in these countries are now more ready to give considerations to such issue when determining punishment.

In legal jurisprudence, a State or society criminalises an act because they view such act with abhorrence and repulsion. The commission of such act is deemed as unacceptable or repugnant to the values and norms of such State or society. Thus we criminalise rape and murder, for example.

Now, do we, as a society, view double parking, jumping queue, road hogging, driving in emergency lanes, speeding, jumping the red lights, tailgating, driving while using mobile phones (as well as sending text messages), changing lane without giving indication, and various other traffic acts as repugnant to our values and norms and thus, unacceptable? Think about it. The answer is actually no.

In fact in Malaysia, we are expected to do such act. The next time you drive, try stopping at a traffic light when it is about to turn from amber to red when there are cars behind yours. Chances are you would get a honking. When you are stuck in a traffic jam along the highway and your car is blocking the emergency lane, try not to drive in the emergency lane. Chances are, you would also get a honking. Try not to move your car onto the yellow box at a four junction when the light is green. Yes, you would get a honking.

Malaysia is a country where everybody is EXPECTED to break traffic laws. It is not a country where everybody is expected to comply with traffic laws.

Such being our culture and cultural practice, such acts become our values and norm. They are acceptable acts. They are not repugnant to us as a society and as a people. We are not repulsed by such acts. In fact, if somebody complies with traffic laws, we view him or her as a no-good goodie-two-shoes!

That being the order of the day, traffic laws and no amount of exuberance in their enforcement will make any difference whatsoever to solving the problem at hand. Why, even the drivers from the squeaky clean and anti-septic Singapore will break our traffic laws when they drive here. That further proves my point.

Studies have shown that people are able to and in fact will switch cultural mode when circumstances permit or demand such switch. A Malaysian goes to London. Immediately he or she would line up at a sandwich bar or a tube station, switch to some accent which he/she doesn’t even know exist before arriving there, says “thank you” to the cashier and “good morning” to the fish and chips seller. And the minute he/she arrives at KLIA, he/she would immediately switch back to the usual rude, smile-less and thank you-less creature that we are.

That is why the usually compliant Singaporean breaks our traffic laws the minute they cross the bridge in Johor Bharu. And I have even seen some Mat Salleh drivers jumping the red light in Bangsar.

This article would be far too long if I were to suggest solutions. But a really close look at the behavioural patterns of Malaysian and our cultural norms and values would go a long way towards having a correct diagnosis.


[i] http://www.unescap.org/ttdw/roadsafety/Reports2006/Malaysia_RSpaper.pdf

Tuesday, June 12, 2012

Let’s ban ‘em all!

I quite like the way people in authority attempt to solve various problems in Malaysia.

A long time ago, safety helmets were made compulsory for every motorcyclist and pillion rider. Thereafter, some smarty-pants wore helmets with visors to rob banks. Although I was still in school at that time, I remember the so-called solution which our authority came up with to solve that problem. They simply banned helmets with visors. Problem solved, right?

Many years ago there were concerns over deaths caused by accidents involving water-scooters in Penang beaches. Of course, before everybody could finish saying “water-scooters”, I remember some hot-shots proposed that water-scooters be banned. Fortunately that did not happen..

Baby dumping? Oh well, that’s easy. Ban, among others, Valentine’s Day celebration.

The best of the lot is the efforts taken by some of our so-called ulamaks to sove the problem of Muslims having very weak “aqidah” or faith.

Muslims in Malaysia must be among the weakest when it comes to “aqidah.” After all, a Parliementarian readily told the Parliament last year, if I am not mistaken, that Malaysian men cannot “tahan” to see their wife (or wives) cooking in the kitchen when they come back from work. The wife (or wives) must thus be ready to have sex with the men there and then. This was, and is still, of course readily agreed to by the Obedient Wives Club which also advocates, among others, spiritual sex. (I think the OWC took the idea of spiritual sex from the cyber sex or phone sex phenomenon).

Sorry, I digress.

Yes, Muslims in Malaysia are very weak in their “aqidah”. Solutions, anybody? Yes, ban the poco-poco dance. Ditto Valentine’s Day celebration. In Bangi, someone actually said cinemas should not be built. What else ya? Oh, yes. Electronic Bible. Ban it please. While we are it, why don’t we ban the Bible in Bahasa Malaysia as well, right? That would be a hollistic approach. Yes. Superb.

If those were not enough, we should then have a seminar titled “Strengthening the Faith, the Dangers of Liberalism and Pluralism and the Threat of Christianity towards Muslims. What is the Role of Teachers?”.

Of course, recently, we have the Erykah Badu banning. All because of some art work on her body. The most recent is Irshad Manji’s book. Over in Indonesia recently, they went gaga over a Lady Gaga concert. You all know the result, right? Yes. What else but a ban.

Looking at the trend, the enemies of Islam are not just the Israelies, the Jews, the United States and their allies. The most potent poison one could unleash against us, Mulims, is nothing but women, apparently. Send Irshad Manji and that’s it, 15 million Muslims would lose their faith soon. Send in Lady Gaga and hundreds of millions of Muslims would be out of their Islamic mind sooner than one could spell “Gaga.”

Malaysia is, however, not alone when it comes to banning things. China, which coincidentally invented paper, started banning books on philosophy which came from anywhere other than the state of Qin in the 3rd century BC. In fact, China is still leading the way in this area of socio-illogical move. Most recent is its banning of Kate Winslet’s breast in Titanic 3D movie for fear of the men reaching out to touch them in the cinema. Classic.

Books seems to be the favourite for this activity. In this regards, Islam is not the only religion in whose name books were banned. The Catholic Church had forced Peter Abelard to burn his own book, which consisted, among others, his interpretation of the Trinitarian. There was also a time when the Bible was prohibited from being translated into the vernacular. And guess what? The Catholic Church also used to have issues with Greek plays as well as Arabic and Jewish texts. Hmm…déjà vu?

In England, Henry VIII led the way. He actually did not like William Tynedale’s version of the Bible and had it, of course, banned. Not enough with that, he burned him at the stake.

Meanwhile, the “greatest nation on Earth”, aka the US of A, is not spared with this desease as well. In Masachussettes, the Quaker texts were banned. And of course, they also hanged witches at Salem. Boston saw the imprisonment of Ann Austin and Mary Fischer for texts which offended the then acting-Governor.

One of the most astounding book burning happened in the land of freedom and liberty itself, France. In 1842, surprise surprise, officials at the school for the blinds actually collected books written in Braille and burned them. Of course we all know that Louis Braille’s method later became a universal writing method for the blinds.[1]

Anything which can be banned would be banned. Austalia, the land of wonderful beaches, man-eating sharks and kangaroos, a year or two ago sought to prevent exploitation of children in pornography. And how did they propose to do that? Hilarrious. That’s how. They proposed a ban of small breasted women in pornography.

Malaysia’s regulations on prohibited names is perhaps necessary due to the fact that some parents do give their children names such as Siti Mazda or Abdul iPhone. We can however take refuge in the fact that we are not alone. In Denmark, there is the Law on Personal Names to be content with. Under that law, people expecting children can choose a pre-approved name from a government list of 7,000 mostly West European and English names - 3,000 for boys, 4,000 for girls. Those wishing to have non-approved names must seek permission at their local parish or church. Among those who wish to deviate is Lan Tan, a 27-year-old Danish woman of Singaporean and Malaysian descent who is trying to win approval for her daughter's name, Frida Mei Tan-Farndsen.[2] Yes. Go Malaysia!

So, worry not for this madness. We are not alone.


[1] Refer to http://open.salon.com/blog/amelia_flood/2009/09/23/a_brief_and_rambling_history_of_banning_books_-part_1 for more.

[2] http://www.nytimes.com/2004/10/08/world/europe/08iht-danes.html?_r=2

Friday, June 01, 2012

The Great Debate

The hall was packed with thousands of people from all walks of life. Some were wearing yellow t-shirts. Some wore red t-shirts. Some wore white t-shirts. But the odd thing was, everybody was wearing a t-shirt with logos on it. Nobody was wearing any shirt at all. Or baju kurung. Or baju batik. Zilch. Nada. Null. சுழி. Zéro. 零. Well, you get the idea.

I was trying to move, inching my way toward the stage. And it was damn difficult to do so because of the crowd. Somewhere in the middle of the crowd, I could see Rais Yatim with a tasbih. Strangely enough, when I was near him, he turned to me, smiled and as if knowing my puzzlement as to what he was doing with the tasbih, he explained, “I am doing head count Bro…”

“Oh…..no wonder…” I thought. As if he knew what I was gonna ask next, he said, “I think there are 22000 people in this hall,” smiling. “Oh…okay…” again, I thought.

As I arrived in front of the stage, Irshad Manji was adjusting her short skirt and tight t-shirt. “Hmmm…even the debater is wearing a t-shirt,” I told myself. Irshad was sitted to my left. Her white t-shirt says “Lock up your dotters, I am lezbie.'’

Sitting to my right was a goateed guy in a kain pelikat and green t-shirt. His t-shirt says “MasyaAllah, Na’uzubillah, neraka jahannam.” He looked like he was an officer from JAIS. Or something like that.

Adorning the wall behind both of them was a huge banner. It reads, “Welcome to the great debate.”

The crowd was getting restless. The debate was scheduled to start at 1pm. And it was already 1.30pm. Yet there was no sign the debate was going to start any soon. Outside the hall, there were about 6000 policemen, 5 tanks, and about 20 armoured vehicles. The Deputy IGP was seen ordering some thosai telor at a stall set up by some Indian NGOs nearby. Anwar Ibrahim was rolling his hands, as if to signal something to Azwan Ali, eh…I mean Azmin Ali.

Not far from that, Umi Hafilda was screaming through a loud hailer, “Al-Juburi, Al-Sodomite, Al-Adulterer, Al-Kohol…” over and over again, like she was on a repeat mode. In front of her, about 5 people would repeat what she said.

Over at the other end of the spectre, there were burger stalls. Nobody bought their burgers. And so they were giving them away for free. Even then, nobody took their burgers. Earlier in the day they were telling me, “bisnes teruk la Bang….rugi besar ni….” I saw “NFC” written on their beef burger wrapping. “Hmmm…that prolli explains it all,” I thought. Again.

Suddenly there was loud music. “I want your ugly, I want your disease, I want your everything as long as its free…” the speakers were blaring them out. Hamaigawd…Lady Gaga.

And there she was. In all her sinful glory. She was wearing…err…not so much really. There was this black PVC bra with a hole in the middle of each of the cup showing her nipple. And a skimpy pair of red PVC panties with a heart in the place where her “anu” is. And knee-high black leather boots with what looks like a 1-foot heel each.

Jesus Christ, Lady Gaga was the moderator.

She went to the mike. “Afternoon guys and gals, lezboz and homosexuals, welcome to THE debate,” she proclaimed to loud cheers from a section of the hall. The goateed guy was almost in a state of delirium. I didn’t know whether it was out of sheer fright, joy, sickness or all three.

After some pleasantries, and a short explanation of the rules of the debate, Irshad Manji took the mic.

“I don’t understand why my book is banned by JAIS. Isn’t Islam about tolerance? Isn’t Islam about the eternal search for the truth? Who owns the truth? Not me. And surely not YOU!” she said while pointing to the goateed guy.

“After all, Caliph Al-Mahdi used to debate with Timothy 1, the Nestorian patriarch. They would do it at the Caliph’s palace, in front of everybody.

“The Caliph would say, O Catholicus, it does not benefit someone like you, someone of learning and experience, to say about God Almighty that He took Himself a wife and bore a son.”

To which Timothy 1 would retort that God did not have a wife and someone who said so was a blasphemer.

Timothy 1 would then say that “it is not my business to decide whether [the Quran] was from God or not…but all words of God found in the Thorah and the Prophets, and those of them found in the Gospel and the writings of the Apostles have been confirmed by signs and miracles; as to the words of your book they have not been corroborated by signs and miracles. Since signs and miracles are proof of the will of God, the conclusions drawn from their absence in your Book is well known to your majesty.”

“Well, did the Caliph ban Timothy 1 after that? Did the Caliph order Timothy’s death after that? No. He did not. In fact he invited him to a sumptuous banquet and later he invited him again and again for such debates in his palace. If your faith is strong and you believe in God, why must you fear opposite  or differing views?”

“If a Caliph could behave in that way, why can’t we? Why can’t you?” she asked to the thunderous applause of some very liberal looking guys and gals wearing Pink Floyd t-shirt and baseball cap in the hall.

Lady Gaga then stood up and took a whip and whipped the floor of the stage. “That was freakin’ good arguments youall!” “Cheers to Irshad. Cheers to Irshad,” she exhorted. Quite obviously, she was not impartial. “Well, I am not impartial, okay…, just like some of your Judges in your country,” she screamed.

I could then see VK Linggam giving a thumbs down sign. “Boo…,” he was saying.

The goateed guy stood up. Went to the mike. “Assalamualaikum…,”he said. “Irshad Manji is a threat to Islam. A threat to our akidah. A potential resident of hell. She is a lesbian too. I demand that the government revokes her citizenship.”

He then went back stage. Everybody was astounded. Several minutes later he came back with a big box. He opened it on stage. And out came what looked like Hassan Ali doll. And the damn doll could move and talk.

“Damn, an electronic Hassan Ali,” I whispered to myself.

The doll took the mike. “I have proof of proselytisation efforts by Christian mercenaries. I will show you in a minute….”

Suddenly a section of the crowd in red t-shirt moved forward. Then they turned around, their back now facing the stage. Lady Gaga then said, “oh oh…it is senaman bontot time…”

The crowd in red t-shirt, their back facing the stage, started to wiggle their derriere, in various shapes and forms.

Then the President of the Petty Trader Malaysia came out from his Lamborghini Gallardo from no where. He went on stage. He said, “come to my shop and eat some ikan, and you could win this car…”

He then got into the car again.

And HomaiGawdilinggam…he drove the car straight toward me. He was going to run me over.

Bang, boom, crash….suddenly I was awake. I had fallen off the bed. My wife was laughing at me.

“Bad dream eh?”, she asked….

Thursday, May 03, 2012

Astro, give some respect to your customers please!

This post is prompted by Astro’s chop-job of BBC news report as shown here.

The Malaysian Insider later reported that BBC had strongly condemned Astro’s move. A BBC spokesman was quoted as saying:

 ”During the week of World Press Freedom Day, it would be deplorable if access to independent and impartial news was being prevented in any way. We would strongly condemn any blocking of the trusted news that we broadcast around the world including via distribution partners.”

In response, Astro was reported to have said that the news report was subjected to a chop-job by Astro to “suit local rules.” No details or particulars of the said local rules were given by Astro.

I am a subscriber of Astro. In fact, I not only have one account, but two.

Generally, I must say I quite like Astro, particularly the sports, documentary and of course the international news sections. The movie section sucks big time. Astro must be the only television channel in the whole civilised world that is still showing Missing In Action 1,2 and 3. And Death Wish too. I would rather stare at a blank TV monitor rather than watch these movies, dear Astro.

Astro.com.my Portal   Subscriber Terms   Conditions

This is a screen shot of the terms of my subscription contract with Astro. Don’t bother reading it. My view is that it is one of the most lopsided agreement in this side of the universe. Basically, the agreement says I should pay Astro to subscribe certain packages. On the other hand, Astro is in effect not obliged or responsible to provide any kind of service whatsoever.

If this agreement is governed by English law, it might be challenged under the Unfair Contracts Terms Act 1977. But well, Malaysia does not have that kind of Act of law. We are more concerned with same sex shagging and the likes. Consumerism is not very important here. So we have big corporations riding roughshod over consumer rights and the likes. Who cares, right? You have got the choice of not subscribing if you are not happy, right?  So, sod off!

Essentially, what the terms of my subscription with Astro provide is as follows:

- I pay to watch programmes under certain packages

- Astro can revise the programmes anytime it likes

- Astro can also revise the amount I have to pay anytime

-Astro is not responsible nor liable for any interruption, suspension or termination of the services for any reason whatsoever

And this takes the cake:

“Astro makes no warranties or representations whatsoever with respect to the content of the programming included in the Services, in particular Astro does not guarantee the sequence, accuracy, completeness, timeliness or the security of any data or information contained in the Services.”

So, on the literal interpretation of the terms of subscription, we all pay fees to Astro and Astro don’t have to provide nuts to us. Astro is not responsible for anything under the agreement.

Granted.

Astro says in the agreement that it makes no warranty or representation with respect to the “accuracy or completeness” of the content of the programming.

Does that mean, if we watch the BBC channel on Astro, Astro can show the Kenyan’s news channel instead of BBC regardless of the fact that that channel is known as the BBC News Channel? On a quick reading and without employing some kind of intelligence, yes, it appears to be so.

So, Astro can do a chop-job on any BBC news report and shove it into our throat like some Lords shoving hot molten iron into some peasant’s throat in medieval time, right?

NO!

First of all, Astro may not have made any warranty or representation about the content in the agreement. But Astro does make a warranty and/or representation about the BBC News Channel and every other channel on its website and flyers. On BBC News Channel, this is what Astro warrants and/or represents:

“BBC World

Channel 512

BBC World News, the BBC´s commercially funded international 24-hour news and information channel, is owned and operated by BBC World News Ltd, a member of the BBC´s commercial group of companies. BBC World News attracts 74 million viewers a week, is available in more than 200 countries and territories worldwide, and reaches 292 million households and more than 1.7 million hotel rooms. The channel´s content is also available on 81 cruise ships, 46 airlines, 35 mobile phone networks and a number of major online platforms including bbc.com/news. For further information on how to receive BBC World News, download schedules or find out more about the channel, visit bbcworldnews.com.”

This is the screen shot.

Programme Guide

Basically, although Astro does not make any kind of warranty or representation in the subscription agreement, it does give all of us expectations that the BBC News that Astro is providing us is the one which is produced by, in its own words, the “BBC World News, the BBC´s commercially funded international 24-hour news and information channel, is owned and operated by BBC World News Ltd, a member of the BBC´s commercial group of companies.”

Further, although Astro is at pains (in its subscription agreement) to emphasise that it is not responsible for the “accuracy” or “completeness” of any of its data or content, Astro surely does not have the legal right to deliberately or intentionally distort, misrepresent or alter the content without the consent or at the very least, knowledge, of its customers.

The censorship or chop-job by Astro of the relevant BBC news report amount to just that, namely, the alteration or modification of a report which was published by Astro as the original and true report. If that was not a misrepresentation or a distortion, tell me what is.

The least Astrio could have done was to put a notice when that particular report was being aired to the effect that the clip was being censored, changed, altered or modified (call it whatever and howsoever you may like). That would let your customers know that what you are showing is not the original report.

At least, treat your customers with some respect! They pay you for God’s sake!

In Malaysia, nobody, and I mean. NOBODY respects copyrights and intellectual properties. Piracy is everywhere and for all to see. Pirated video games, movies and songs are sold everywhere. Watches, handbags, shoes and you name it, they are everywhere.

It is of much concern that private individuals do not respect copyrights. But when a huge corporation give scant respect to an original production by chopping it as it pleases and passing it as the original production without notice to its customers, that is really sick!

Astro’s purported explanation, to the effect that the report was chopped-up to “suit local rules” is at most, laudable for its efforts and laughable for its insult on our intelligence. What local regulations? Please show us.

If a news report does not suit local rules, the right thing to do is not to air it at all. If you have to air it, air it in full. And if you wanted to air it with modification, then by any means, tell your customers that the report is not the original one, at the very least. Professional courtesy also demands Astro to at least inform BBC about it.

As for Minister Dato’ Seri Utama Rais Yatim’s statement that the report shown by Astro shows the “best parts” of the news, well, I am not going to say anything about it. I will let the viewers make their own conclusion.

While Astro chopped a BBC news in order to show it’s “best parts”, the Star yesterday surely shoed the "best parts" of local news. And without any chop-job too if I may add. The Star had even seen it fit to provide the links to the blogs which carry the so-called sex pictures.

The Star must be the first ever “people’s paper” in the whole world to have provided links to alleged sex pictures of a politician.

Congratulations the Star. You have achieved a new standard in responsible reporting.

You deserve a Pulickzer.

Tuesday, May 01, 2012

Let’s heal this nation

I wasn’t there on Saturday.

I was however constantly checking out the progress of the BERSIH sit-in through various social-media platforms, including Twitter and Facebook as well as some websites which provided updates from time to time.

In the morning it was like one huge festival. It was like the Rio carnival (without the samba, of course). I saw people converging, talking to each other, singing, walking around and taking pictures. I could also see police officers standing guard, looking at possible trouble-makers, talking to each other and manning their respective post.

There was an air of optimism. There were heart-warming moments, captured on camera, of people handing flowers and balloons to police officers, while their colleague looked on with amusement. There were people asking to pose with police officers and the latter obliged with a smile.

All these pictures of  festivities – grudging as they might be -  moved me to twit in the late morning, “Police acting with considerable restraint so far. The people are not the enemy. Syabas.” I tagged PDRMsia to that twit.

I have written about unity before. I have postulated that national unity exists on two levels, namely, situational unity and what I call the transcendental unity. And I was thinking, the Bersih rally, at least in the hours before 2pm on 28th April 2012, is a perfect example of what I had termed as situational unity.

When the people have one purpose in mind, they would instinctively move as one towards achieving that on e purpose. They would suffer hardship, readily go through inconvenience and sacrifice time and money to move together for that one purpose. And they would stand side by side with complete strangers, regardless of breed and creed; regardless of race and religion in the pursuit of that one purpose.

That is my theory in Dear Brother Anas. And the Bersih rally proves just that.

Events however took a turn for worse just after noon. Some rally goers broke the barricade and encroached on Dataran Merdeka. Suddenly the police and the Federal Reserve Unit started using the water cannon and tear gas. And all hell broke loose.

In a way – and I am speaking as a third party here, as I wasn’t there to have a first-hand experience – it could have been the result of a miscommunication, a non-communication even.

I do not know whether there was sufficient publicity about what would constitute the “bantah” itself; what would constitute the end of the rally and what the rally goers were supposed to do after it all ended.

It was all a bit of a confusion. The plan was to have a sit-in at – or rather, on – Dataran Merdeka. The authorities were having none of that. They obtained a Court order against that. They then set out barriers, barricades, barbed wires and razor barricades around Dataran Merdeka.

Then there was a statement by the police saying that the people will be allowed to converge at several meeting points as planned by Bersih. However, the statement also said that the police were going to take action if the people start moving towards Dataran Merdeka. Then there was a statement by Bersih’s Dato’ Ambiga saying that Bersih will comply with the Court order by not occupying Dataran Merdeka.

So what was the exact plan? Meet at the meeting points. And then what?

At a certain point of time, I read about Dato’ Ambiga addressing the crowd and declared the rally a success. She then asked the rally goers to disperse. Where did this take place? I do not know. And how many from the crowd managed to listen to or hear her request to disperse? I do not know.

All that we know is that the rally did not end even after that request by Dato’ Ambiga. There was a group of people who breached the barricade. According to an interview given by a friend of mine, Fahri Azzat, he was about 100 metres away from the barricade.

He saw a float consisting of the opposition leaders. Then he heard people saying “get in get in, it’s open” or something to that effect. He did not know what that meant although it was in his mind that perhaps the barricades had been removed. Then the police charged.

His interview is here.

I saw many video on YouTube. And many pictures posted on the internet.

Many of them are downright disturbing. There was a video of some people smashing a police car at a junction. There was another video showing a police car (probably the same police car which was being smashed) along Jalan Tuanku Abdul Rahman being driven into a crowd at Sogo. Then there were shouts that somebody was underneath that car and people were upturning the car although at the end of it, I could not see anybody under that car.

There was also a disturbing video of a group of policemen, all in uniform, assaulting a man who was arrested at a t-junction. That was painful to watch, to say the least. In addition, there were numerous accounts of post-arrest assaults.

Then on Twitter, there were twits of the person allegedly rammed by a police car (probably the police car in the video which I described earlier) had died. Then there were twits about a police gun having been snatched.

Quite surreal I must add was a twit saying the police gun was later recovered. I mean, how negligent can a police officer be to lose his gun. And how dumb the gun snatcher was to let that gun be recovered afterward?

The most disturbing twits which I had read later was the rumour that not one, but two policemen had died!

I shook my head in total disbelief at the crass nature of some of the statements made from both sides of the fence. At the sheer irresponsibility of it all. All in the name of expression.

In the middle of it all, I asked myself, what has happened to all of us, the people and the authorities? Have we abandoned reason and rationality? What has happened to humanity? Are we all so caught up with our perceived struggle and functions so much so that we are no more brothers and sisters of the same nation?

My optimism quickly swallowed by a sea of shocking acts of crime, I descended into a state of shock and disbelief. My twit reflected how I felt. At the end of it, I twitted, “I weep for this nation.”

Yesterday was Sunday. And this morning I have not recovered from my bout of depression.

I am trying to avoid reading any kind of news about Bersih. However, I know for sure that the blame game will start, if it hadn’t started in the first place.

The government will blame the opposition. The opposition will blame the government. There will be one side who blames the police for all the mayhem. The police will in turn blame the rally goers for being rowdy. Everything under the sun will start blaming Venus, the moon and Mars except for themselves.

Deputy Minister Dato’ Saifuddin Abdullah has reportedly said that the Bersih event had shown a nation angry and divided.

I say, apart from that, the Bersih rally reveals a nation which is not at ease with her people and on the other hand , a people which is suspicious of their nation. It shows that at times, all of us could lose our head and descend into some kind of a contagious sickness.

I just pray that soon, all of us would regain our collective consciousness; regain our rationality and reasonableness; regain that missing piece of humanity. And then perhaps we would sit down, with a cup of coffee in hand, and ponder whether we would want to continue with our waywardness.

Or whether we would want to heal this nation; get back on our feet and move forward as one people with one purpose.

In unity.