Thoughts about liberty on National Day

Brave New World (The Star)
30 August 2017

In the midst of the celebrations, let’s ponder what freedom means to all of us.

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WHEN I was a little kid, Merdeka was always a holiday that I enjoyed. The most important thing, of course, was that there was no school. The second most important thing was that there was TV in the morning. A very rare thing indeed.
I would sit in front of the 12-inch black-and-white set that my family had, with some chocolates, and watch the parade.
Since I was a red-blooded boy, the sight of tanks and soldiers was most thrilling. Yes, it all sounds quite pathetic, but this was the 70s; we got our fun where we could find it.

Naturally, the entire concept of “Merdeka” was a vague thing for me. Of course, I understood that it meant we were once under the control of the British and now we are not. This was a good thing, because some white dude wasn’t in charge of us anymore. Very simplistic, I know, but then I was a simple little fellow.
Now that I am a little bit less simple, I am able to grasp the more subtle ideas of “Merdeka”. For example, if we are free from the Brits, then what is it that we are free to do?
Choose our leaders, certainly. And it seems that we have done just that. We have chosen the same people again and again and again for the past 60 years.
They are still our leaders, even though the popular vote went the other way in the last general election.
Is this freedom?
Another thing that we are free to do is to live our lives with dignity. This means to me that we have the right to speak and the right to express our thoughts freely. We should not be tied down by repressive laws. Neither should we be in a situation where national leaders can dictate who can or cannot discuss proposed laws based on their religion.
Alas, laws designed by the British to quell dissent are still with us and it would appear that the religious orthodox in the country would like nothing more than to be given free rein to do what they like on the basis that they are more religious than the rest of us.
Is this freedom?
There should not be the humiliation of people because of supposed crimes. But now we are on the verge of seeing public whippings.
Is this freedom?
There should be governance based on fairness. But our smartest young people are bound by rules which are so vague and open-ended that their universities are given the most absurd discretion to punish them for simply practising their civil liberties.
Is this freedom?
Needless to say, this Merdeka will be particularly gaudy and celebratory, what with the success of the SEA Games.
So there will be distractions aplenty. So many, indeed, that we won’t have time to ask: is this freedom?

It should not have led to violence

Brave New World (The Star)
16 August 2017

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THE recent fracas at new Parti Pribumi Bersatu Malaysia’s Mahathir Show ... I mean their Nothing to Hide 2.0 forum, raised some amusing reactions.

In case you have been binge-watching Game of Thrones, what happened was a bunch of thugs disrupted the event by getting violent. Chucking a chair, setting off flares, hurling water bottles, and of course no political fight would be complete without a flying flip-flop.
In the aftermath of the incident, one cop said the organisers would also be summoned to give statements. I wonder if this is some sort of unique police procedure that I have never heard of. In the event of a crime, investigate the victims.
I can see it now:

“Officer, I was mugged.”
“Oh, really? Let me ask you some questions. Have you ever taken martial arts classes? Were you by any chance making yourself a target by looking too wealthy? Why on earth were you walking around in that area anyway?”
But it wasn’t just the cops being funny. The politicians and their people were making me chuckle too.
A ruling party press secretary said the rampaging morons were actually dissatisfied members of the Opposition. I wonder how he came to this far-fetched conclusion.
Someone has been immersing himself in conspiracy theories and unless he has some firm evidence that the Opposition really was into inflicting self-harm, then this could be very much a case of “Misleading the Public 101”.
Even the “victims” were saying some funny stuff. The president of Pribumi, when confronted with the possibility of the cops investigating them, said that this was unreasonable as they were politicians and therefore would not be able to identify bad guys from good.
Now, I know he was talking about the agent provocateurs in their cunning disguises of Pribumi’s Armada (youth wing) T-shirts but his statement was ironic to the extreme.
Politicians don’t know how to distinguish bad guys from good? I see. Now I know why the country is in such a mess!
Of course the incident was a shameful one and perhaps some may find my levity a bit off colour. But then, anyone who has observed politics in this country knows that thuggish behaviour is something that has been part of the political landscape for decades.
Peaceful conferences have been disrupted by politically affiliated goons; private individuals have been harassed; political activists have been threatened and attacked; entire areas have been closed off by bullies to prevent opposition politicians from entering.
The list goes on. And all done to ensure only the narrative of the status quo is heard.
This most recent event is nothing new. It is only capturing the imagination because a central character in this episode is an ancient ex-premier. An ex-premier during whose reign some of the thuggish activities I mentioned above occurred.
Again, the mischievous head of irony pops up. However, if it takes an attack on an old man for the masses to see that this kind of gutter politics has no place in a democracy, so be it. Some good may come out of all this.
And I hope that we begin to see that regardless of whether we like the message a person is saying, you do not ever counter it with violence. Those who do so are showing that they are bereft of intellect and the ability to put forward counter-arguments. In other words, they are showing that they would lose in an intellectual debate and therefore are likely in the wrong.

There’s good news and there’s bad news

Brave New World (The Star)
2 August 2017

First came a surprise ban, but it was followed by an inspiring, heartwarming Court of Appeal decision.

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THE banning of the book Breaking the Silence: Voices of Moderation – Islam in a Constitutional Democracy came as a surprise to me.
I wasn’t surprised that it was banned. The Government has banned around 2,000 books since 1960. It’s not exactly a bestseller.
Full disclosure here folks: I have a chapter in this book. I can hardly remember what I wrote, but it was about fundamental liberties in the Federal Constitution.

Anyway, the point I am trying to make is that the book is a collection of measured and scholarly articles, with a foreword by former prime minister Tun Abdullah Ahmad Badawi, not some rabble-rousing diatribe. And yet it was deemed to be prejudicial to national security.
No explanation was given how this is so.
I presume, therefore, that the Home Ministry thinks that a reasoned and thoughtful discussion of the place of Islam in our Malaysian democracy is somehow a threat. It is difficult to see how this could be so, in a moderate Muslim nation.
However, before I could get too upset about how reasoned discussion is banned and how a moderate and rational examination of the relationship of Islam and the state can be a dangerous thing, there came a wonderful decision by the Court of Appeal.
The case was essentially about a Muslim couple wanting their child to have its father’s name as his or her surname.
Unfortunately, the child was born less than six months after the parents got married.
According to a fatwa by the Fatwa Council, this meant that the child was illegitimate and therefore could not carry the father’s name.
Instead, he or she was to have “Abdullah” as his or her surname.
The court held that as long as the Births and Deaths Registration Act was fulfilled, a child can have the name of his or her father as his or her surname.
The National Registry Department is not bound by a fatwa unless the fatwa has gone through a legislative process and is made into law.
In this situation, this was not the case.
From a legal point of view, I found this decision to be very welcome indeed. The syariah laws we have are drafted in such a way as to suggest that a fatwa has to be obeyed.
If it is not, then a person can face penalties. This is even if the fatwa was not made into law by going through the normal legislative process.
This in effect, in my point of view, means that a non-elected body can make proclamations that automatically become law. This is unacceptable in a democracy. And the Court’s decision appears to support this contention.
To have a non-elected religious body with the power to effectively make law is to live in a theocracy. We are not a theocracy; we are a democracy.
If you want to live in a theocracy, fine, that is your right to want such things.
So by all means campaign for it, win enough seats in Parliament, change the Constitution and Bob’s your uncle.
In the meantime, we are a democracy – which means only the legislature can make laws; no one else. Deal with it.
But what I found truly astounding and moving about the judgment was that there was so much compassion and humanism in it.
The Court stated that to force the child to have “Abdullah” as his or her surname when the father’s name was something else was to stigmatise the child.
From the moment school starts there will be questions about why the father’s name is not the child’s surname. And if the child has siblings, they will have different names. This could be traumatic for the child.
This demonstration of caring by the Court is a wonderful thing to behold.
And yet, such caring seems to be in short supply among some quarters who are screaming that a child deemed illegitimate must not carry the father’s surname.
This is quite strange to me. I always thought that Islam does not believe in the concept of original sin.
That is to say, children are born pure and sinless. There is no need for any religious rites to purify them.
This being the case, why are some Muslims so intent on ensuring that sinless children have to suffer for the acts of their parents? It seems to me that these people don’t have that one element that makes religion worthwhile –compassion.

Uneasy over additional judges

Brave New World (The Star)
19 July 2017

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THE recent furore about the appointments of the Chief Justice of the Federal Court and the President of the Court of Appeal is a bit confusing. Yes, I know, for someone in my profession, this is not a wise confession to make. But hey, I never said I was smart.
There are some sounds being made that the appointments of these two men will lead to a constitutional crisis similar to the one that struck our judiciary in 1988. Perhaps it will, but I seriously doubt it would capture the imagination in the same way.
You see, the 1988 crisis, where the Lord President (as the Chief Justice was then called) was sacked and five other judges were suspended, was a pretty clear-cut story.
The bad guys and the good guys were more easily identifiable. The Lord President was sacked for trying to defend the integrity and independence of the judiciary.

The grounds used to sack him were tenuous and the decision was made by a tribunal headed by a person who would take over the post of Lord President if the incumbent was dismissed. Conflict of interest, anyone?
The fingerprints of the Executive were all over this fiasco. The courts had made several decisions not in favour of the ruling party in that time period and the Prime Minister at the time was having none of it.
Thus we see not only an unjust procedure being used, we also see the erosion of the separation of powers between the Executive and the Judiciary.
The situation before us now is slightly more subtle than that.
To the best of my ability, I believe that what it boils down to is this.
The new Chief Justice (CJ) and Pre­sident are not young. In fact, they turned 66 this year. The retirement age of a judge is 66 years, with a possible extension of six months.
Not a very pleasant combination of numbers, but what can you do?
Anyway, since they were both appointed this year, it would seem that their tenures would be fairly short indeed. So far, so uncontroversial. But the thing is, they are now going to be serving a term that goes beyond their maximum retirement age. How is this possible?
The Constitution does provide that an ex-judge can be appointed as an “additional judge” even if they are above the maximum age. What the previous CJ did, before his retirement, was to recommend to the King the appointment of the two men as “additional judges”.
This is a bit weird because the CJ and the President were still in active duty when the last CJ appointed them as additional judges.
The wording of the Constitution is unclear on whether the CJ can recommend additional judges in advance.
If this is allowed, then it means that a CJ can have power and influence even after he has retired.
Imagine a boss calling the shots even though he or she is on pension and sitting on a beach in Phuket. Like I said, it is weird.
Furthermore, the Constitution states that an additional judge is someone who “has held high judicial office”. The key term here is “has held”.
This implies that additional judges are to be appointed from those who have retired and a CJ who wishes to appoint such judges can only look to the pool of ex-judges. Is it possible, therefore, to make the decision to appoint people when they have not yet retired?
It is not for me to guess what the previous CJ was thinking when he made these decisions. After all, we are not buddies and I have never spoken to him. There­fore, it would be folly for me to make any wild guesses.
But what I will say is that whether they like it or not, the judiciary has suffered from a lack of public confidence – a cloud that has never totally dissipated since 1988.
It is imperative, therefore, that things are done in a manner that closely adheres to the Constitution and does not raise any question as to motivations and agendas.
The judiciary does not need such things and neither does the nation.

Taking on the Fourth Estate

Brave New World (The Star)
5 July 2017

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What’s the real reason for the demand that Qatar shut down the Al Jazeera Arabic channel?
WHAT is the similarity between Donald Trump and the Saudi Government?
Well, apart from a penchant for sword dancing, they both have taken a hard line on the free press.
Both have taken different levels of action, though. Trump, being the type of person that he is, reacts with thin-skinned petulance when the press say things he disagrees with or when they criticise him. His fingers will reach for his phone and tweets will come flying out as fast as his little digits can type.

These tweets are in equal mea­sure childish, misogynistic and – how shall I put this delicately – lacking in any sort of sophistication.
He has, however, upped the ante recently by having a video of him “wrestling” posted.
This is an old video from when he was merely a media mogul and had some sort of role in the WWE and it was, of course, staged. The thing is the video has been changed a bit with the wrestler’s face superimposed with a CNN logo.
So far, so infantile. It’s a bit less funny when you think that recently a Republican candidate actually body-slammed a journalist from The Guardian because he did not like his line of questioning. A strangely prescient wrestling move that Trump applauded. Of course.
The American press feel a little under siege and nervous because they argue that what their president is doing is essentially saying it’s OK to attack the press and their members, even in a physical way.
Of course, one could pooh-pooh this as a bunch of entitled journos being a bit limp.
After all, unlike many journalists around the world, the Americans do not suffer governments who actually have oppressive laws and the lack of ethics to use those laws against the press. Nor are they subject to brutal murders and other acts of serious violence.
Still, knowing how some Trump supporters are – again, how shall I put this delicately – simple, I suppose these concerns can be given some credence.
The situation is somewhat diffe­rent in the Middle East. The Saudis and their allies are attacking Qatar, at the moment only economically. The reason is ostensibly that Qatar is supporting terror groups.
The rights and wrongs of this claim are not the subject of discussion here.
Neither will I discuss the irony of a country that exports a most lite­ralist brand of Islam, which provides the ideological grist for terrorist mills, calling another nation supporters of terror.
The point I want to talk about is that among the terms that the Saudis have made on the Qataris if they want the blockade lifted, is that Qatar must shut down their news channel, Al Jazeera Arabic (AJA).
Here’s the thing though: is that really the reason for it or is it because AJA is the only Arabic-language news channel that is consistently critical of the governments (mostly unelected) in the Middle East?
That they provide aspirations for democratic governance and civil liberties, and that they give space to voices which would normally be suppressed in the Arab world?
At the end of the day, I think it boils down to simply this: there are governments and leaders that do not like being criticised and they will do all that they can to shut the media up.
They will try to justify their attacks on the press, whether it be by screaming “fake news” in every other sentence, or by claiming that the media is biased against them, thus casting aspersions on the vali­dity of reports; they can use laws to cower the press; or they can go the whole hog by threatening war.
And what is the press to do? Roll over and play dead? Merely think of their livelihoods and their shareholders?
Or does it keep striving and pushing? Does it keep on working in a professional, well researched, impartial manner, to provide news that can be relied on?
Because in this age of the Internet, there is a lot of rubbish floating around, and as retro as this may sound, the mainstream press (and by this I mean all journalistic endeavours that are professional and working within the ethical boundaries of their profession, including online news portals) is still vitally important.
If the media does not play their role as the Fourth Estate properly, the question then is, what is their purpose?

There should be no extra punishment

Brave New World (The Star)
7 June 2017

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Once a sentence has been pronounced, it should be carried out according to the book and without any additional measures.
WHEN a person is found guilty of a crime in Malaysia; what are the usual punishments?
It depends on the type of offence, of course, but generally the worst possible punishment is death by hanging, followed by whipping, incarceration and finally a fine.
Personally, I think the death penalty should be done away with.

This is not because I believe that it is wrong in principle, but because no legal system is perfect and therefore if there is a risk, no matter how small, that an innocent person may be found guilty, then it is unconscionable that there should be a punishment as final as death available on the books.
Whipping is, from my point of view, a form of torture and torture is clearly against international customary law. Thus, it should also not be part of our legal system.
Furthermore, to make matters worse, the death penalty and whipping are being used for crimes that in my view do not merit such harsh and cruel penalties.
Drug offences should not carry the death sentence as it does nothing to stop the drug problem and it is also always used only on the small fry at the very bottom of the illegal drug trade, and these are often desperate or ignorant people.
Whipping as a punishment is also used for inappropriate offences like immigration crimes.
I think there can be absolutely no justification of beating someone simply because they do not have the right papers on them.
Be that as it may, these are the penalties in our country for crime.
So when a person is in police custody or in jail, then they can only be punished by the methods made available by the law. Anything else is unlawful and wrong.
This is why death in custody cases should be taken into serious consideration.
A person should not die when under the care of the criminal justice system. They are there to serve their punishment and nothing else.
Therefore, it is the responsibility of the authorities to ensure they are properly cared for until they have served their sentences.
They have no right to beat people in custody and if they do it, then they should not only be fired but they should also be criminally prosecuted.
There have been civil cases brought against policemen who have hurt inmates and detainees.
Former constable V. Navindran was ordered to serve three years’ jail in 2015 after his appeal against his conviction for the custodial death of A. Kugan was rejected, but there have not been many criminal convictions.
What is a crime? A crime is an offence that, although it may affect only a few victims, is yet deemed to be an offence against society. This is why the state prosecutes crimes and not the individual victim.
This being the case, a crime, in a way, reflects the values of society. It is a crime for those in authority to beat detainees under their charge.
Stories of poor treatment in custody are worrying because the frequency with which they occur suggests a normalisation of such behaviour, on the part of those who are charged with fighting crime.
This mindset cannot be allowed to continue, on the part of the authorities as well as on the part of ordinary folk who may feel that undesirables (like criminals) deserve what they get.
As a civilised society, our laws determine the punishment for those who break the law.
There can be no other extra punishment meted out by anyone.
To allow such acts would be most barbaric indeed.

BNW Show 4 May 2017: Culture of Fear

https://www.thestar.com.my/videos/2017/05/04/brave-new-world-ep-18-culture-of-fear/