Brave New World (The Star)
19 September 2012
Violence only begets violence, and once more the poorest and the weakest suffer most.
_______________________________________
IN 1998, the Clinton administration approved a cruise missile strike on Baghdad. It missed its target (an Iraqi military installation) and hit a civilian home killing the residents.
The strike was approved in response to the “guilt” of some Iraqis who had supposedly threatened the life of George Bush the elder. It did not seem to matter that the trial for said crimes was not even over yet when the missile was launched.
My point is that it does not take much for American government-sponsored violence to be unleashed on a country.
In this light, the death of Christopher Stevens, the American Ambassador to Libya, along with several of his colleagues could have severe repercussions on innocent people.
The Obama administration seems to be practising restraint for the moment, but one can question if a more hawkish government would act in the same way. As it is, Mitt Romney is making Bush-like sounds of war.
The catalyst for all this is that utterly obscene and reprehensible video insulting the Prophet Muhammad.
As of this moment, it appears that it was made by a petty crook with a shady past, and it was supported by odious right-wing groups.
These loathsome creatures can be said to be simply hatemongers, but it can also be said that whether on purpose or not, they are agents provocateurs for the hawks of America who are just itching for an excuse to wreak even more destruction on West Asia.
And nothing would serve their wicked intentions more than scenes of death and violence inflicted on American lives and property, shown with salivating eagerness by so-called news channels like Fox.
It does not matter that ordinary Libyans were the first to react in trying to save Stevens, it does not matter that the Islamic Orthodoxy, most notably the Grand Mufti of Saudi Arabia, has condemned the killings.
The act of a shrill few would be used to colour the Islamic world as violent and sub-human.
In this light, it is of even more importance that Islamic countries that want to, rightly, protest against the film also be equally strong in their stand against the inflicting of violence. It is important because to do otherwise would be playing right into the hands of those who would wish harm unto them.
Let me be clear, this disgusting work of hatred naturally raises feelings of anger. Ordinary people as well as governments have every right to express that anger, but that expression must stop at the point of violence.
As it is, there are serious problems facing the people in Muslim countries. A quick look at the national poverty indicators of Egypt, Iraq and Sudan (where some of the biggest protests are reported) show a poverty rate of 20%, 22% and 45% respectively.
To put things in context, the Malaysian national indicators put the poverty rate at 4%. The death toll in Syria as a result of their civil war is pushing 30,000 and it has the further worrying undercurrents of being a Shia versus Sunni conflict.
In other words, the Muslim world and their leaders have far deeper and more pressing problems to contend with than the hatemongering of some people who would be happy if peace, stability, true democracy and prosperity were denied the people of the region.
The surest way to ensure the dignity of the Muslim world is the efficient and equitable distribution of their vast resources. It is to find ways to get beyond sectarian and ethnic divides.
With a prosperous, happy and educated populace, there will be the strength to brush aside idiots bent on causing strife and war.
Success is the best form of victory, and working towards that success will be the best answer to those who would wish ill towards you. The killing of innocent people would just be aiding them.
Tuesday, 18 September 2012
Friday, 14 September 2012
New wine, old wineskin
Going The Distance (Selangor Times)
14 September 2012
_____________________________________
It is telling that during the Suhakam inquiry into the Bersih 3.0 rally a police officer revealed when questioned that he did not know that the right to assemble was constitutionally guaranteed for the people of this country.
14 September 2012
_____________________________________
It is telling that during the Suhakam inquiry into the Bersih 3.0 rally a police officer revealed when questioned that he did not know that the right to assemble was constitutionally guaranteed for the people of this country.
This lack of knowledge is of concern naturally
because we are talking about a public servant with a great deal of power (he can
shoot us with his pistol after all), and it is important that he understands
that the limits on his power does not depend simply on whatever Standard
Operating Procedure he may have but also our rights as citizens.
However, knowledge can be gained. Police officers do
take courses and some of these courses will have components of Constitutional
Law in them. I have taught a diploma course on Constitutional Law and the
officers in my class appeared to have grasped the concept.
Knowledge, therefore, is not really the issue here;
it is the corresponding attitude towards that knowledge which truly
matters.
In the past few weeks there have been many incidents
that illustrate the paradox that occurs when one pays lip service to a principle
without truly understanding its importance and ideals.
The Peaceful Assembly Act was supposed to be a law
that would allow a more liberal approach to public gatherings, but instead we
see it being used to actually hinder such gatherings.
The Janji Demokrasi gathering was deemed illegal
before it occurred because proper procedures for asking permission was not
followed as demanded by the Act. Investigations on organisers and participants
of Janji Demokrasi are also currently being conducted, again under the auspices
of the Act. A green rally in Pahang is being investigated because a person who
is deemed underage by the Act was suspected of taking part.
All this fuss over what were peaceful
gatherings.
I have said before that there was little wrong with
the previous laws (the Police Act) regarding public gatherings. The Police Act
gave a lot of discretion to the police to allow or not allow public gatherings,
this is true; however if there was a proper understanding and appreciation of
the Constitution, the police should, by and large, allow any public gathering as
long as it is not dangerous or violent in nature.
The problem with the Police Act was one of attitude
and not the law per se.
This same attitude persists and it can be seen in the
implementation of the new Peaceful Assembly Act.
What is needed in the country therefore is not even
more, so called liberal laws, but a true appreciation and respect for the human
rights of the people of this nation. The police have to understand that their
role is not simply about enforcing the law for whatever government is in
power.
Their role is to enforce the law in the spirit of the
Constitution and the freedoms that it guarantees for everybody.
Speaking of attitudes, the furore over some people
stepping on the pictures of Datuk Seri Najib Razak also reflects an unfortunate
attitude that is still prevalent amongst Malaysians, or at least some segments
of Malaysians.
Frankly, it does not bother me in the slightest that
photographs are being stepped on. It bothers me if the actual person is being
stomped or if there is a real threat to their life, but stepping on the picture?
So what? Big deal.
It is rude sure, but we are not talking about some
deity or religious symbol here. We are talking about an elected official; and
obviously an elected official that some people dislike very much.
The outrage and subsequent investigations and arrests
show that there is still this feudal mentality amongst some quarters that raises
what are essentially public servants onto the pedestal of Rajas.
There is far too much subservience in our society.
Observe functions where a minister turns up. Immediately there will be the sound
of shuffling chairs as people stand up. Why should we do so? Why the grovelling
and hand kissing? Democratically elected officials are just like any one of us
and to afford them such obsequiousness is unseemly and an affront to the entire
idea of democracy and equality amongst all people.
Recent events have thrown into clear light once again
how far we have to grow as a nation in order to be a true democracy. How much
there is still to be done before there can be a deep and meaningful appreciation
of our rights as human beings and the need to cast off any remnants of feudalism
from our shoulders in order for us to live with the dignity that those same
rights are meant to ensure.
Tuesday, 4 September 2012
Have independent mediation service
Brave New World (The Star)
5 September 2012
This should be considered as going to court is a costly and unpleasant business for most people and really should be avoided.
___________________________________________
KARL Llewellyn (pronounced “loo-well-lynn”, I think) was an American jurist with a Welsh name.
He came up with his Law Jobs theory which I vaguely remember from my first year in law school.
According to him, law has to fulfil five “jobs” and they are:
> To avoid conflict;
> Settle disputes;
> Accommodate changes in society;
> Establish a structure for authority; and
> Establish procedural rules to accomplish these tasks.
It is interesting to note that the first “job” of law is to avoid conflict.
Although I am uncertain if Llewellyn (actually, I once heard that the proper Welsh pronunciation is “cluergh-well-learn”, but I could be wrong) had intended for there to be a hierarchy in his law jobs, I would posit that if such a hierarchy did exist, then conflict avoidance should be at the top.
After all, wouldn’t it better if we didn’t get into fights in the first place?
Two examples come to mind and both are about residents in disparate parts of the country worried about nearby developments.
The residents of Bukit Koman in Raub have been fighting for years against a gold mining facility in their area because they claim that the use of cyanide in the operations has created health problems for them.
Over in Kuala Lumpur, some residents in Taman Tun Dr Ismail have been up in arms against the Mass Rapid Transit Corporation (MRT), whose proposed train tracks just metres from their homes are causing worries both in terms of their well-being and the worth of their homes.
In both cases, could these conflicts have been avoided in the first place?
There already exist certain laws which should pre-empt problems such as these.
The Town and Country Planning Act (TCPA) and the Environmental Quality Act’s Environmental Impact Assessment (EIA) requirements are two that come readily to mind.
But both these laws, although well-intentioned, do have shortcomings.
Primary amongst them is just how far public opinion is taken into consideration in the final decision making.
It has to be clearer how public feedback is taken and also, there has to be transparency in the final decision making to ensure that said feedback was properly considered.
Added to this, some sort of independent mechanism for mediation (something which currently does not exist) should also be considered as going to court is a costly and unpleasant business for most people and really should be avoided.
It is far too easy to label opposition to factories, new roads, rail tracks, mining operations and what have you as political issues.
Surely, people don’t get agitated unless they are rightfully worried.
Of course any issue can be turned political especially since final decisions on such matters lie in the hands of the government of the day, but one has to be non-partisan and look beyond that.
In any society, there will almost inevitably be conflicts of interest.
This is even truer when the society is as large, modern and complex as ours.
What has to be done, regardless of whom are the law makers, is to ensure that such conflicts are minimised.
And when it comes to the well-being of the people of a country, this should be even more evident.
5 September 2012
This should be considered as going to court is a costly and unpleasant business for most people and really should be avoided.
___________________________________________
KARL Llewellyn (pronounced “loo-well-lynn”, I think) was an American jurist with a Welsh name.
He came up with his Law Jobs theory which I vaguely remember from my first year in law school.
According to him, law has to fulfil five “jobs” and they are:
> To avoid conflict;
> Settle disputes;
> Accommodate changes in society;
> Establish a structure for authority; and
> Establish procedural rules to accomplish these tasks.
It is interesting to note that the first “job” of law is to avoid conflict.
Although I am uncertain if Llewellyn (actually, I once heard that the proper Welsh pronunciation is “cluergh-well-learn”, but I could be wrong) had intended for there to be a hierarchy in his law jobs, I would posit that if such a hierarchy did exist, then conflict avoidance should be at the top.
After all, wouldn’t it better if we didn’t get into fights in the first place?
Two examples come to mind and both are about residents in disparate parts of the country worried about nearby developments.
The residents of Bukit Koman in Raub have been fighting for years against a gold mining facility in their area because they claim that the use of cyanide in the operations has created health problems for them.
Over in Kuala Lumpur, some residents in Taman Tun Dr Ismail have been up in arms against the Mass Rapid Transit Corporation (MRT), whose proposed train tracks just metres from their homes are causing worries both in terms of their well-being and the worth of their homes.
In both cases, could these conflicts have been avoided in the first place?
There already exist certain laws which should pre-empt problems such as these.
The Town and Country Planning Act (TCPA) and the Environmental Quality Act’s Environmental Impact Assessment (EIA) requirements are two that come readily to mind.
But both these laws, although well-intentioned, do have shortcomings.
Primary amongst them is just how far public opinion is taken into consideration in the final decision making.
It has to be clearer how public feedback is taken and also, there has to be transparency in the final decision making to ensure that said feedback was properly considered.
Added to this, some sort of independent mechanism for mediation (something which currently does not exist) should also be considered as going to court is a costly and unpleasant business for most people and really should be avoided.
It is far too easy to label opposition to factories, new roads, rail tracks, mining operations and what have you as political issues.
Surely, people don’t get agitated unless they are rightfully worried.
Of course any issue can be turned political especially since final decisions on such matters lie in the hands of the government of the day, but one has to be non-partisan and look beyond that.
In any society, there will almost inevitably be conflicts of interest.
This is even truer when the society is as large, modern and complex as ours.
What has to be done, regardless of whom are the law makers, is to ensure that such conflicts are minimised.
And when it comes to the well-being of the people of a country, this should be even more evident.
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.
azmi
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.
azmi
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.
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.
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.
Monday, 30 July 2012
Scripts for Tinseltown
Going the Distance (Selangor Times)
27 July 2012
_________________________________
Hollywood, having run out of ideas, has turned to Malaysia for inspiration. Below are two potential blockbuster movies which draw their plots from the pages of Malaysia’s newspapers.
Austin
Powers and Dr Yes-No The nefarious Dr Yes-No is a villain of eel like
slipperiness. He has the amazing ability of saying totally contradictory things
in order to further his own cause.
Hence the name Yes-No.
He is able to write a heartfelt thesis on the evils of detention without trial and then spin around faster than a speeding bullet to support detention without trial.
Truly he is an incredible character and a worthy opponent to Austin Powers, the international man of mystery.
In this latest instalment of the Austin Powers franchise, Austin and his new sidekick Miss Pinky Bottoms, have to battle Dr Yes-No and his wicked plan to take over the world. Can Austin stop him?
It will be difficult for although Austin Powers has the skills to perfectly execute his famous judo chop, and Miss Pinky Bottoms is pretty handy with her customised pink escrima sticks, they will be faced with an army of highly trained martial artists.
Under the guise of doing community service, Dr Yes-No recruits martial artists from all over the world to fight crime.
It all begins swimmingly as patrols of men and women in matching gis and bare feet march the streets to protect the innocent.
Soon, they are everywhere. In housing estates, shopping malls, car parks, office buildings, industrial areas, fishing ponds and even government complexes.
People feel so much safer when they know they are a karate chop or a taekwondo kick away from safety.
However, with the public’s confidence at a high, and with the police all taking long leave seeing as their job is being done for them for free, the true nature of Dr Yes-No’s plot becomes apparent.
His army runs amok, taking over city after city. No one can withstand their highly skilled unarmed combat skills and before long Dr Yes-No is in control of everything. Can Austin and Pinky stop him?
You can find out in December 2012 at a cinema near you.
Mission Impossible V: The Impossible Mission Ethan Hunt (Tom Cruise) is faced with his most impossible Impossible Mission ever in this fourth sequel of the hit series.
Moving away from the high octane formula of the first four movies, this one goes for something cerebral, more in line with Mr Cruise’s aging body.
Ethan is on a well-deserved holiday in the Bahamas when he gets a package. He opens it to find a DVD of Battlefield earth.
He puts it on and instead of seeing John Travolta in dreadlocks; he hears a familiar voice with a familiar offer. His mission if he chooses to accept it will not be to thwart some megalomaniac. No, it is much, much harder.
He has to attempt to make the Malaysian National Harmony Act something totally different from the Malaysian Sedition Act.
Somehow, he will have to make a law which stifles free speech and makes a mockery of democratic principles look as though it does not stifle free speech and make a mockery of democratic principles.
Not only that, he would have to convince people that a legal system which has been blatantly picking and choosing upon whom they will impose the Sedition Act, would not do the exact same thing with the National Harmony Act.
In the past four MI movies, we see Ethan Hunt struggling with and finally overcoming the unfeasibly difficult odds placed before him.
This time we will see him wonder whether he should even try.
Will he or won’t he? Mission Impossible V: The Impossible Mission opens on Election Day, so we can’t be sure when you will get the answer.
27 July 2012
_________________________________
Hollywood, having run out of ideas, has turned to Malaysia for inspiration. Below are two potential blockbuster movies which draw their plots from the pages of Malaysia’s newspapers.
Austin
Powers and Dr Yes-No The nefarious Dr Yes-No is a villain of eel like
slipperiness. He has the amazing ability of saying totally contradictory things
in order to further his own cause.Hence the name Yes-No.
He is able to write a heartfelt thesis on the evils of detention without trial and then spin around faster than a speeding bullet to support detention without trial.
Truly he is an incredible character and a worthy opponent to Austin Powers, the international man of mystery.
In this latest instalment of the Austin Powers franchise, Austin and his new sidekick Miss Pinky Bottoms, have to battle Dr Yes-No and his wicked plan to take over the world. Can Austin stop him?
It will be difficult for although Austin Powers has the skills to perfectly execute his famous judo chop, and Miss Pinky Bottoms is pretty handy with her customised pink escrima sticks, they will be faced with an army of highly trained martial artists.
Under the guise of doing community service, Dr Yes-No recruits martial artists from all over the world to fight crime.
It all begins swimmingly as patrols of men and women in matching gis and bare feet march the streets to protect the innocent.
Soon, they are everywhere. In housing estates, shopping malls, car parks, office buildings, industrial areas, fishing ponds and even government complexes.
People feel so much safer when they know they are a karate chop or a taekwondo kick away from safety.
However, with the public’s confidence at a high, and with the police all taking long leave seeing as their job is being done for them for free, the true nature of Dr Yes-No’s plot becomes apparent.
His army runs amok, taking over city after city. No one can withstand their highly skilled unarmed combat skills and before long Dr Yes-No is in control of everything. Can Austin and Pinky stop him?
You can find out in December 2012 at a cinema near you.
Mission Impossible V: The Impossible Mission Ethan Hunt (Tom Cruise) is faced with his most impossible Impossible Mission ever in this fourth sequel of the hit series.
Moving away from the high octane formula of the first four movies, this one goes for something cerebral, more in line with Mr Cruise’s aging body.
Ethan is on a well-deserved holiday in the Bahamas when he gets a package. He opens it to find a DVD of Battlefield earth.
He puts it on and instead of seeing John Travolta in dreadlocks; he hears a familiar voice with a familiar offer. His mission if he chooses to accept it will not be to thwart some megalomaniac. No, it is much, much harder.
He has to attempt to make the Malaysian National Harmony Act something totally different from the Malaysian Sedition Act.
Somehow, he will have to make a law which stifles free speech and makes a mockery of democratic principles look as though it does not stifle free speech and make a mockery of democratic principles.
Not only that, he would have to convince people that a legal system which has been blatantly picking and choosing upon whom they will impose the Sedition Act, would not do the exact same thing with the National Harmony Act.
In the past four MI movies, we see Ethan Hunt struggling with and finally overcoming the unfeasibly difficult odds placed before him.
This time we will see him wonder whether he should even try.
Will he or won’t he? Mission Impossible V: The Impossible Mission opens on Election Day, so we can’t be sure when you will get the answer.
Subscribe to:
Posts (Atom)
