Tuesday, 28 May 2013

Vague even when clear

Brave New World (The Star)
29 May 2013

Vagueness and clarity can both lead to befuddlement and irritation, but at the end of the day, good sense, justice and fairness must prevail.


THE law is a funny old thing. Sometimes it is too vague and this can lead to injustice.
Yet, even when it is clear, there can also be injustice.
I realise this sounds like the ramblings of a senile old man, but it is not.
Please let me explain.
It is only recently that I learnt of this provision in the Penal Code; specifically Section 124B which states that if one were to commit “an activity detrimental to parliamentary democracy”, then one is liable to face imprisonment of up to 20 years.
Furthermore, you don’t have to actually commit the offence, you can also attempt to commit the offence and that could mean a spell in the clinker for up to 15 years.
And if you have anything to do with the publication of material that is “detrimental to parliamentary de­­m­­o­cracy”, even mere possession, that, too, can lead to a lengthy stay in the Kajang Bed and Breakfast.
The thing is I am not certain what “detrimental to parliamentary de­­mocracy means”.
Perusing the Penal Code does not provide any clues, so I am left in my usual state of confusion and befuddlement.
For example, what if there is an elected parliament, but the method with which it was elected is contentious.
In this scenario, would my questioning of the legitimacy of parliament be deemed an act “detrimental to parliamentary democracy”?
Surely not, for just because there are elections and as a result there is a parliament, this does not mean that there is a “parliamentary de­mo­cracy”.
This is because the term “democracy” has many implications.
There is an implication that the elections were free and fair; there is an implication that there was sufficient freedom of information so that the people could make a reasoned decision; and so on and so forth.
Therefore, whether a person is charged by this law or prosecuted and convicted by this law will be dependent on the understanding of the charger, prosecutor and the judge as to what “parliamentary de­m­o­cracy” truly means.
This is a rather unnerving situation which is the result of a rather vague law.
But like I said at the beginning of this article, even clear laws can be unjust.
This happens when a good law is flaunted.
Then not only is there an injustice, but it becomes clear for all to see.
In the case of my beloved Bukit Gambier on Penang island, now sad­ly looking like Bruce Willis minus the irritating smirk, it is all too clear.
Someone (at the time of writing that “someone” is yet to be exposed) has decided to build luxury homes on the hill.
Of course it is “luxury homes” because only the luxury class of people like to have their houses located up high so that they can look down on the rest of us.
What is immensely irritating here is that the land clearance has taken place at 500ft (152.4m) above sea level, although the Penang state government has clearly set the maximum limit of such developments at 250ft (76.2m).
How on earth could this have happened when the policy is so clear and when any planning permission must surely precede it?
Were the people responsible nu­m­e­rically dyslexic?
Whatever the reasons, the culprits have to be exposed (just like poor Bukit Gambier is now exposed) and the law must be enforced, otherwise all that clarity will be for naught.
So there you have it, the oddness of the law – where vagueness and clarity can both lead to befuddlement and irritation.
One can only hope that at the end of the day, good sense, justice and fairness will prevail.

Tuesday, 14 May 2013

Winner of seats, not votes

Brave New World (The Star)
15 May 2013


WHEN criticising laws and policies in this country, one of the stock answers that one is faced with is that the majority voted for the government in power, therefore, they are obviously happy with those said laws and policies. The majority rules after all.
I’d like to see anyone try that line of argument with me now. Not since 1969 has Malaysia had a government whom the majority of voters did not choose.
The popular vote in the 13th general election had 47% voting for Ba­risan Nasional, 51% for Pakatan Rak­yat and the remainder to Indepen­dents.
The difference in numerical terms shows Pakatan with almost 390,000 more votes than Barisan.
These numbers are almost the mirror image of figures during the 12th general election when BN won, so theoretically it should now be Pa­k­atan’s turn to govern.
Yet in GE13; Barisan lost only se­v­en seats (my calculations are based on results of the 2008 elections before the frog-like behaviour of a handful of MPs) and are thus still holding the majority of seats in parliament.
This is a weird situation of course and one that a teacher would be h­a­r­d pressed to explain to a class of nine-year-olds. Odd as it is, this is a possible outcome when one uses the first past the post system.
However, such abnormalities are usually found in political systems where there are more than two political parties or coalitions.
In those situations the possibility of votes being split are more numerous thus leading to the possibility of a government with less than 50% of the popular votes but more seats in the legislature.
In our situation, because by and large there are only two major players (the Independents and smaller parties had a minimal impact in terms of vote splitting), the popular vote should reflect the number of seats in parliament. Yet it did not.
So the question here is how can the system that we use (one used all over the world) lead to what on the face of it is an unfair result.
The answer is that although in the first past the post system the risk of a party having a majority of seats with a minority of popular votes is always there, the way to avoid such absurdities is to ensure that all the constituencies are appro­ximately t­h­­e sa­me size in terms of voter numbers. This is obviously not the case in Malaysia.
The discrepancies of voter numbers can be huge; this is particularly so when comparing the rural and urban areas with the latter having far more registered voters (although this is not necessarily the case all the time; urban Putrajaya is tiny in terms of voter numbers).
Naturally, rural areas are more sparsely populated than urban areas and therefore a certain degree of flexibility is required when delineating constituency lines. Rural areas will by sheer demographic and geographic realities have fewer voters in them.
However, the difference must not be ridiculously high. The general guideline is that a discrepancy must not be more than 15% and thus when drawing the boundaries of the constituencies, this factor ought to be considered.
This is clearly not the case. To give you an idea as to how big the discrepancies can get; the difference between Kapar (144,159 voters) and Putrajaya (15,791 voters) is just over 900%.
In effect, in the smaller constituencies, a person’s vote carries more weight than in the larger ones and it is no coincidence that the ruling coalition finds its support largely in small constituencies.
This is not a satisfactory situation but it is one that can be fixed because the moment has come for a re-delineation exercise in this country. What perfect timing.
The Election Commission (EC) is charged with the exercise although the final acceptance of their recommendations lies in the hands of parliament (and the state legislatures in the case of state seats).
This is an opportunity for the EC to do the right thing and make good recommendations.
They must if they are to recover any shred of dignity following their performance in the GE13. The fiasco with the so-called indelible ink is one example of how poorly handled things were.
The fact that the ink can be was­hed off (due to the “diluted” version used) has been attributed to the non-shaking of bottles (yes, seriously); Islamic teaching (although in India and Pakistan there appears to be no complaints about using the ink from the hundreds of millions of M­u­s­lims there); in the interest of health, apparently the ink can mess up your kidneys or give you cancer or something equally horrible (which is jolly thoughtful of the EC, but perhaps a tad paranoid and over-protective).
It was ludicrous to say that it does not matter if the ink is washable because you can only vote once with your identity card. What if someone has phantom like tendencies and has more than one identity card?
Which leads us to the EC’s terribly blasé treatment of genuine fears that phan­tom voters existed; another e­x­am­ple of them behaving in a manner that does not engender public confidence.
I am unsure if the EC will redraw the constituency boundaries in a fai­rer manner, and I am even more un­s­ure if the ruling party will accept any­thing that in their minds will be a disadvantage to their grasp on power.
What I am sure about is this country runs the risk of being a joke if something is not done to fix this. Unfortunately, it w­o­n’t be a funny joke and there is the probability of an un-amused and furious populace.
Democratic practices done properly are what ensure peace, not façade democracies which do not ultimately respect the peoples’ choice.
When will those with the responsibility and the power stop t­h­i­n­king in petty terms and realise this? When will they show that they truly care about the nation?