Sunday, 26 August 2012

Double standards in sentencing

Brave New World (The Star)
22 August 2012

There are times we hail court decisions and there are times we find them bizarre. But if we ignore the incredible disparities in some court decisions, it is only at our own peril.


HOSLAN Hussein gets one year in jail for inaccurately chucking (he missed) his slippers at a judge. Noor Afizal Azizan gets a fine and zero jail time for raping a 13-year-old girl.

It boggles the mind. Hoslan’s sentence, in my view, was very harsh and over the top.

But even if one were to believe that the sanctity of the courts is so fragile that a punitively deterrent punishment is required for the flinging of footwear, it is impossible to ignore the incongruous disparity in the punishments meted out to these two men for crimes of such vastly different seriousness.

Much has been said about the judge’s unbelievable comment when sentencing Noor Afizal. Apparently being a national bowler with a bright future is enough to let you escape jail time for rape.

Actually, what is this “bright future” the judge is thinking about? The man is a child rapist; he confessed to it. He should not be allowed to represent the country in anything at all.

And in case you think there are mitigating issues in this case, namely that the sexual act was supposedly consensual, allow me to argue otherwise.

In this case, the girl was under the age of consent. This means the crime committed is statutory rape. The issue of consent does not even arise in such cases.

The reason for this is because we as a society have long ago determined that the young girls of our community deserve protection.

It does not matter in the slightest that children mature at different rates; what matters is that in general, this society believes that girls under the age of 16 are not yet ready to make decisions regarding their own sexual activity.

There are mental, psychological and also physiological elements to this need for protection.

The sexual act by itself could have implications for a child’s well-being, but a child from our society would surely be traumatised in the event that she got pregnant and had to face either childbirth or abortion.

Furthermore in immature bodies, the experience can also be seriously harmful physically.

I use the term “a child from our society” because I realise the age of consent will differ from nation to nation and culture to culture.

But in the case of statutory rape, there is no room for comparative anthropology. What matters is what we value for our girls.

I always believe that Malaysians care for our children. We want them to have a sound and safe childhood so that they can go to school and build a strong foundation for their future.

This is why we want to protect them for as long as possible, for it is this safety that helps to establish an environment where they can mature and flourish at a pace which we believe is healthy.

The judge in making his decision could not possibly have been thinking about this bigger picture. For if he had, he would have realised that his judgment was not only about Noor Afizan and the girl he violated, but also about all the girls in this country and our collective concern for them.

He has in effect dealt a blow to one of the few noble values that the people of this country universally accept — that our children should be cared for and be protected.

It was pointed out to me that Noor Afizal was NOT fined but the money he paid up was a surety. I regret this sloppy mistake but it does not detract from the main thesis that the judge made a decision which in my opinion was not appreciative as to WHY we have a Statutory Rape law in the first place.


Thursday, 9 August 2012

Really, you can’t make it up

Going The Distance (Selangor Times)
10 August 2012


Rais Yatim should be given a present from people like myself who write current affairs articles.
Just when one is catching one’s breath after laughing so hard at his suggestion to create a vigilante martial arts group to patrol our streets, he then stumbles headlong into another controversy.
Well, to actually call it a controversy may be giving the man too much credit. More like an embarrassing blooper.
We are talking of course about the government’s recent efforts at organising the Merdeka celebrations. In particular the song with lyrics written by Rais himself called “Janji Ditepati”.
Now, propaganda, especially during the Merdeka celebrations, is nothing new for the current government. They have been doing it for as long as I can remember. But never has the propaganda been so crude and so self-serving.
The lyrics of the song, apart from having absolutely no poetic value whatsoever, would have made Goebbels proud in the utterly unsubtle espousing of the virtues of the Barisan government’s recent policies and its hectoring demands for loyalty.
Our man in the Ministry of Information, Communication and Culture, in a moment where I imagine that he fancied that having a job with “culture” in its title means that he has some sort of qualification to be “artistic”, has in one fell swoop soured our annual celebrations of independence.
And the government needs all the help it can get to whip up some sort of cheer this coming Aug 31. Felda stocks are falling; the prosecution of Rafizi Ramli has backfired and even poor Lee Chong Wei can’t make the ultimate sacrifice by having Rosmah hug him and a gold medal in front of the world press.
Speaking of Chong Wei, I actually feel rather sorry for the chap.
The fact of the matter is; he is simply not as good as Lin Dan. He put up a good show however, particularly in the first and third sets, but if the other man is better, well, he is more likely to beat you.
I do have one criticism though. And no, I am not going to savage the poor fellow like M Manoharan did. I remember Mano as a kind gentleman and this does not change that view, but by golly, for a politician, he was more than a little naïve to so publicly say what he did.
The chap Chong Wei has lost already, no need to whack him for his lack of style. It’s rather mean spirited.
One thing Mano said did ring a bell for me though: the millions of ringgit promised Chong Wei if he had won. This mentality of giving huge amounts of money to successful athletes seems to me to be a rather curious use of resources.
Firstly, it sends the wrong signal. It puts on the back burner the desire to win for the sake of honour, for self, and perhaps for country too.
In a competition like the Olympics, it rankles even more because it is in principle at least a competition which is about honour not material gain.
Unlike other competitions, there is no prize money to be won, just a medal.
Furthermore if those who are willing to place so much money for one swift moment of glory have so much to spare, wouldn’t it be better to put all that ringgit in developing our sports in general?
Malaysia has a bigger population and more wealth than countries such as Cameroon, Ivory Coast, Jamaica and Ghana. Yet they can succeed at events such as the World Cup and the Olympics. What are we doing wrong?
I am no expert in sports, but it does not take much to see that if our fastest 100 meter dash was run 20 years ago and has yet to be beaten; that if our team of amateur footballers can qualify for the 1980 Olympics but now our full pros struggle against Myanmar; something is not right.
I don’t see why the country can’t rise above corruption, narcissism, nepotism, racism and plain incompetence, to create sportsmen and women in a range of disciplines to stand up, be counted and take the fight to the rest of the world.
That is the kind of thing that will help to make the nation as a whole feel proud and happy to be Malaysian. Not some half-baked excuse of a song.

Oddities in law

Brave New World (The Star)
8 August 2012

To the layman, what PKR’s Rafizi Ramli and former bank clerk Johari Mohamad did was for the greater public good when they exposed a scandal involving millions of ringgit which came from public coffers. So why prosecute them?


IN the past two weeks a couple of legal oddities have come to light. The first is with regard to the Whistleblower Protection Act (WPA) and the second is with the University and University Colleges Act (UCCA).

The WPA has come into focus because of the arrest and charging of Rafizi Ramli and Johari Mohamad under the Banking and Financial Institutions Act (Bafia).

The question on many people’s mind is: Why are they being charged since what they did was to expose certain banking documents that uncovered the National Feedlot Centre scandal? In other words, shouldn’t these two men be protected by the WPA?

Let’s break down the legal situation in this case.

On the face of it, Rafizi and Johari did breach the Bafia. Rafizi exposed private banking documents and this is in contravention of section 97 of Bafia, while Johari is accused of aiding him and this falls foul of section 112.

To the layman, however, what they did was not for private gain but for the greater public good, exposing a scandal which involves millions of ringgit which came from public coffers. Why then should they be punished?

Now, here is where the legal oddity comes in. If we look at section 6 of the WPA, we find that a person can make a disclosure of information and he could be protected if that disclosure is not specifically prohibited by any written law. Rafizi’s disclosure is clearly prohibited by the Bafia.

Secondly, according to section 6 of the WPA, this disclosure ought to be made to an enforcement agency, which Rafizi did not do as he made the disclosure to the press.

Therefore, it does appear that the charging of these two men does not go against the letter of the law.

Whether it goes against the spirit of the law and of recent pronouncements made by the Government that they are against corruption, is another story altogether.

I would argue the section 6 provision that a disclosure must not be specifically prohibited by any law is problematic and should be removed from the WPA.

From my understanding, even if Rafizi had gone to an enforcement agency, for example the Malaysian Anti-Corruption Commission, he would still be unprotected as a whistle blower because the information he is disclosing to them is prohibited by the Bafia.

Yet, in this case, the uncovered information is important as it can help in the battle against corruption.

I submit that what is important is not whether the disclosure goes against any laws; what we should be focusing on is the effect of the disclosure.

That is to say, if the disclosure exposes a serious crime or evidence of corruption, then the fact that by disclosing the information the whistle blower is in breach of a law should not be a factor.

If the action of the whistle blower is for the public good, then this should be a defence against any law he may have broken.

Taking criminal law as an example: if I hit a man, then I have committed a crime. However, if I hit him because he would stab my mother if I did not, then I have a defence under the law.

With this in mind, it struck me as strange that the Attorney-General has seen it fit to prosecute Rafizi and Johari.

From my argument above, there is a shortcoming in the law, particularly the WPA.

What these two men did was in the public interest. There is no likelihood that the breach of the Bafia in this case is going to cause any serious implications.

After all, the only people who have anything to fear are the corrupt.

So, if there are concerns that foreigners won’t put their money in our banks, I would say they do not have anything to fear if they are not corrupt.

Now, to fix the WPA will take time. But surely, until that is done, the A-G can use his discretion to simply not prosecute these two men in this particular case. Does he not want to fight corruption?

The second legal oddity is a seeming contradiction in the UCCA.

The Deputy Minister for Higher Education pointed out that the amended UCCA allows university students to join political parties, yet at the same time it does not allow any party political activity on campus.

I agree with the Deputy Minister; this is a rather odd state of affairs. However, I don’t think it is the biggest issue with regard to the UCCA.

From my decades long experience with university students, joining a political party is not high on their list of priorities.

After all, what kind of political nerd are you to want to join a political party at the age of 19? The only thing you will experience from doing so is the loss of interest from the opposite sex.

No, from a political context what is more important is their general right to expression, assembly and association.

It would be churlish to say that the UCCA has not been improved by the recent amendments. For example, there is now a presumption that a student can join any group unless it is illegal or unless the university says they can’t. In the past, they could not join any organisation at all without the express permission of the university.

However, these improvements are rather shallow. Dig a little deeper and you will see that students can still be severely punished by the university for exercising their constitutional rights.

This is because the universities have disciplinary rules which do not respect the students’ constitutional rights. They all have very broad “offences” such as spoiling “the good name of the university” in their rule books.

So, if students take part in a perfectly legal demonstration for example, the university disciplinary board can still punish them for “spoiling the good name of the university”.

And this discipline board can really disrupt their lives. They can suspend or even expel a student with immediate effect.

This means that even if the student goes through the appeal process, he may have already wasted a semester or even longer.

The punishment takes effect before the appeal process can run its course.

Therefore, the university still has far too much power and seeing as it is unlikely they will temper this power with a respect for human rights and the Federal Constitution, the issue of the UCCA goes much further than whether a student can wave party political flags from his dorm window.