Loyal Followers

Friday, May 15, 2015

Demonising Liberalism – a mark of moderation?

I am deeply concerned with the Prime Minister’s speech while launching the Institut Wasatiyyah (Moderate) Malaysia yesterday.

How ironic is that? I mean, when you are launching an institution that is supposedly promoting moderation, you attacked liberalism? I wonder whether the Honourable Prime Minister could see how absurd the two opposite stands that he was taking. Moderation is ok. Liberalism is not.

What is more disconcerting is the fact that the Prime Minister found it wise to paint liberalism – in one instance he called it “liberalisation” – with a really broad brush. He reportedly said:

"And because of that, come those who are called liberal Muslims, the LGBT, human right champions and others…."

He then proceeded to give an “example” of liberalism (he termed it “liberalisation”) that he deemed “extreme”:

"We take the example of the student who was involved in the disgusting act in the UK recently. It has shocked us but shows that such elements (of liberalisation) exist among Muslims."

First of all, making child pornography and being in possession of 30000 child porn images with the intention of distributing them IS NOT liberalism. Nor a product of liberalisation. That is just plain sickness or mental disorder that needs to be addressed with countless hours of counselling. Liberals, liberalism or liberalisation do not advocate the breach of the law or criminal actions. Nor do they promote indecency or behaviours that are against common decency. To lump child pornography with liberalism is not only incorrect but is twisted in its logic and reason. It may also reflect a high degree of misunderstanding – or perhaps even non-understanding – of the concept of liberalism.

Second of all, “human rights champions” are not ipso facto liberals. Human rights are not premised on liberalism although admittedly liberals are staunch believers in the concept of fundamental liberties and universal human rights. Human rights are premised on humanity. On the realisation that all humans are born with certain inherent and inalienable “rights” and entitlements.

In fact, to describe that those things are “rights” may even be inaccurate. Those inherent and inalienable “things” are what give humans dignity and qualify them to be called humans in the first place. They are more than mere “rights”. They are what which distinguish humans from non-humans.

For one to say that “champions” of human rights are undesirables who need to be ostracised and stamped with the word “unwanted cretins” is tantamount to one claiming that our Federal Constitution is also undesirable. Why? That is because our Federal Constitution so expressly GUARANTEES these “rights’ which we all call “human rights”! Please read article 5 to article 13 of our Constitution on these rights.

Branding “champions’ of human rights as “liberals” who could “ruin Islam” is a clear attempt at labelling people who are just merely exercising their legitimate rights in pursuing what is guaranteed by the Constitution as undesirables and perhaps even “enemies of Islam.” How twisted can an argument be?

Liberals do not preach – and surely do not desire – a state of anarchy. They pursue freedom and liberty just as Islam and Prophet Muhammad s.a.w. did. Freeing of slaves, for example. Coincidentally, article 6 of our Constitution prohibits slavery. The Prophet also preached rights for women and is known to have elevated the status of women by giving them the rights to inheritance which was then unheard of. That is equality before the law – also guaranteed by article 8 of our Constitution. The Prophet also established a judicial system where people accused of criminal acts are granted the right to be heard and would not be punished save in accordance with the law of the time. That, coincidentally is guaranteed by article 5 of our Constitution.

Of course, over the thousands of years the messages of the Prophet and God have been interpreted and re-interpreted to suit political ends and goals. So much so we are now having difficulty to even think for ourselves on what to do; what to read’ what to listen to and who to listen to etc etc. But the basic premise of the Prophet’s teaching is freedom and liberty.

Why do we than so easily judge people who pursue whatever is legitimately guaranteed by our Federal Constitution – the very document that we so loudly say is the social contract between citizens and this State of ours?

Malaysia must be the first schizophrenic State in the world. It displays a set of behavioural patterns in the international arena – in front of the United Nation assembly and audience at Oxford University – where it is apparently a moderate State and the pursuer of a Global Movement of Moderates. But internally and in front of certain inland Islamic and Malay audiences, the same Malaysia turns into a certain Mr Hyde, who laboriously preaches moderation while doing things which are the exact opposite of moderation.

Malaysia is in dire needs of a political counselling.

Political posturing premised on the needs for political mileage and survivability is all good for political life. But political posturing should not dictate public policies which must at all times be anchored only to the best interests of the State and nothing else.

The mess that we are in now is mainly caused by the infusion of shameless posturing into the public sphere and policies.

All of us, good people of Malaysia, could only hope that this will immediately stop.

Monday, May 11, 2015

Our Collective Failure

It is not that it happens. Rather it is how brazen it is. And how blatant it is.

And to think that the perpetrators of this humongous scheme could just get away Scott-free, happily enjoying the fruits of their complicity is a sure sign of our collective failure. Failure as a people. Failure as a society. Failure as a nation.

Forget the Jho Lows of the world. Forget the advisors, the directors and the CEOs of the world. Just look at ourselves. For the fault lies with us.

For years all of us have sat down in front of our television set, sipping our teh tarik while seeing our rights being trampled and transgressed. And yet we do not see any reason why we should move our ass and do something. In short, we could not be arsed to do anything.

And why is that? That is because collectively we suffer from chronic apathy. We would not care to do anything because in our mind we asked, “Why should we?” There are always some blokes or suckers who would shout and scream; who would take up cases and argue in Courts; who would be arrested and detained overnight and sometimes for a week or two; who would go to the street and demonstrate. So why should we? It is not our fight.

Malaysians by and large are a docile peace loving people. We love our peace and tranquility. We absorb a lot. An electric train’s wheel fell off from the sky and paralysed a driver. Oh well, that fellow was unlucky. A bus sped down a hill and plunged into a ravine killing tens of passengers. An over-developed hill gave way and swallowed two blocks of apartments killing hundreds. Oh well, how sad. It is the work of God. Rainy season larrr…

That is what we are.

Until and unless our own rice bowl is hit; or our own car is scratched, we would not be arsed really.

Because that’s what we are. A lazy apathetic bunch of big fat assed creature who just don’t care. Who would cheer from afar. Who would silently pray that all the fighters – well, it is their job – would win. Who would just whine during lunch or happy hours with friends. Who would just gossip; cut and paste some memes and pass them around on whatsapp or share them on facebook.

Thousands of years ago, Aristotle posit that justice is a matter of fit. In his vision of an ideal State, people are allocated roles that suits them – the roles that enable them to realise their nature.

Corollary to that is his justification of slavery. According to him, slavery is just if it satisfies two conditions. It must be necessary and it must be natural. Arguing necessity, he said if there was no slaves how could citizens spend time in an assembly to deliberate about the good of the State and society? Slavery is thus a necessity.

But how about the 2nd condition, ie, that slavery being natural? He said slavery is natural if there were people suited by their nature to be slaves. These are people “for whom slavery is the better and just condition.”

“A man is thus by nature a slave if he is capable of becoming (and this is the reason why he also actually becomes) the property of another, and if he participates in reason to the extent of apprehending it in another, though destitute of it himself.” (The Politics, Book I).

And so here we are. All slaves.

We are slaves because slavery is the better and just condition for us.

We are slaves because we are all capable of becoming the property of others. And when we partake in reason, we only do so to the extent of trying to understand and follow the reasons of others for we do not have our own reason. Nor do we want to have any. In short, we are destitute of reason.

So, everything around us now is our own collective failure.

No one should be blamed but our own collective self.

Wednesday, July 17, 2013

Insulting Islam

There are much hoo haas right now about non-Muslims insulting Muslims and Islam in Malaysia. A young non-Muslims couple is now under investigation. The Vatican envoy has been read the riot act by the Foreign Minister.

Latest, a guy had apparently been abducted, bundled into an Alphard, beaten up, stripped half naked, pictured with the word "Hina Islam" and the photo splashed on the internet before being dumped by the side of the road for insulting Islam.

I actually don't know who is/are more insulting to Islam. The guy who was abducted or the people who gave him that treatment.

Anyway, the Quran says:

"You will surely be tested in your possessions and in yourselves. And you will surely hear from those who were given the Scripture before you and from those who associate others with Allah much abuse. But if you are patient and fear Allah - indeed, that is of the matters [worthy] of determination."(3:186)

Then, a Sahih Muslim hadith says:

"Anas reported: A Bedouin urinated in the mosque. Some of the persons stood up (to reprimand him or to check him from doing so), but the Messenger of Allaah (sallAllaahu alayhi wa sallam) said: Leave him alone; don't interrupt him. He (the narrator) said: And when he had finished, he called for a bucket of water and poured it over." (Muslim hadith 557, Book of purification).

Grand Mufti Ali Gomaa says:

"None of this is to condone violence of any sort. Indeed, the example of the Prophet and his Companions – the greatest sources of Muslim normativity – bear witness to their enduring the worst insults from the non-believers of his time. Not only was his message routinely rejected, but he was often chased out of town, cursed at, and physically assaulted on numerous occasions. But his example was always to endure all personal insults and attacks without retaliation of any sort. There is no doubt that, since the Prophet is our greatest example in this life, this should also be the reaction of all Muslims. As the Qur’an instrucus, “Be patient, as were the great prophets.”

(source is here )

So, make your own conclusion.

ps a friend of mine had told me of another verse from the Quran:

Ch 3 Vs 134 – “(Believers are those who) who spend [in the cause of Allah ] during ease and hardship and WHO RESTRAIN ANGER AND PARDON THE PEOPLE - and Allah loves the doers of good.”

Wednesday, June 12, 2013

Election Petition - a note to YB Rafizi

I refer to the report on Free Malaysia Today dated 5th June 2013 titled “Impossible To Win Election Petition”.

I have written before on the standard of proof in election petitions. Thus I will not comment on YB Rafizi’s statement on the same subject.

I wish to however address two issues.

Firstly, allow me to state the reason for the high standard of proof which is required to win an election petition. To understand the reason for the standard of proof, we need to know – and understand – the basic premise of an election petition.

The premise of an election petition is an electoral result which is being challenged.

To put it simply, there has been an election. And there is a result of that election. That result is born out of a democratic process which takes the form of an election. That result therefore represents the WILL OF THE MAJORITY as expressed through the election process. The candidate which is preferred by the majority is therefore declared the winner in the election.

Now, what is being challenged in an election petition is actually the will of the majority expressed in the election. Being so, in order to sustain that challenge, sufficient reasons must be shown to unseat the will of the majority. Those reasons proffered by the challenger must thus satisfy a high legal burden. Otherwise, the will of the majority could easily be defeated in the Election Court. That would make a mockery of democracy.

Take this scenario as an example.

Candidate A won an election by 3000 votes. Candidate B files an election petition showing that 300 voters had managed to wash off their so-called indelible ink immediately after voting. Videos of a bus full of people who looked like Bangladeshis parking itself at the voting centre were also produced.

Here, it is not sufficient for candidate B to just show those evidences. He must demonstrate how those things affect the result of the election. In respect of the 300 voters who washed off the ink, it must be shown that they had, in addition to washing off the ink, managed to vote twice. In relation to the bus, it must be shown that those people were indeed foreigners who were not entitle to vote and they did vote.

If the laws were to permit the result to be vitiated just by showing 300 people had washed off the ink and a bus full of Bangladeshis was parked at the voting centre with nothing more, what that would mean is that the will of the majority could be over-ridden and set aside by the minority. That would be undemocratic. I am sure in such event – of that happens to a Pakatan Rakyat’s candidate – the PR would be complaining of how undemocratic the laws are!

In the above scenario, any complain in respect of the procedural non-compliance must therefore be supported with evidence that at least 1500 votes were affected by the non-compliance. If that is done, then candidate A could not and should not have been the winner. Therefore, the result would be vitiated and another election must be called.

That is how it works.

The second issue which I would like to deal with is this.

The aforesaid report in Free Malaysia Today goes on to say:

On that note, the Pandan MP said that the electoral laws in Malaysia are skewed to allow and tolerate discrepancies, unless it hits a criticial level that can alter the election results.”

I do not know as a fact whether YB Rafizi did say that. On the assumption that he did say that, I would like to respond to that statement.

It is NOT CORRECT and NOT TRUE that electoral laws in Malaysia are “skewed” to allow and tolerate discrepancies.

Our election rules are mainly contained in an Act called the Election Offences Act 1954. This Act is mainly based on the Common Law principles and the provisions of the United Kingdom's Representation of the People Act 1948 (which later became the Representation of the People Act 1983). The provisions of our laws are not only similar to the UK provisions but also to the Indian provisions.

So, our electoral laws are not peculiar to us. In hearing election petitions, our Election Courts are normally referred to authorities and judicial precedents from the UK and Indian Courts. Sometimes we refer even to the Canadian and Australian cases. If our laws are said to be skewed to tolerate discrepancies, then the UK and Indian laws are also skewed as such!

In a report dated 11th December 2012 by a Law Commission in the UK, consisting of eminent jurists, namely, The Rt Hon Lord Justice Lloyd Jones (Chairman), Professor Elizabeth Cooke, Mr David Hertzell, Professor David Ormerod and Frances Patterson QC, the Commission among others, states:

In our consultation paper we summarised the jurisdiction of the parliamentary election court as:

i. reviewing the votes in a scrutiny, potentially declaring another candidate elected as the person having the most lawful votes; or

ii. examining the validity of the election, potentially resulting in an MP being unseated and a new election being called. Here, we distinguished between:

(a) invalidity for breaches of the rules by electoral administrators;

(b) a successful candidate's corrupt or illegal practice; and

(c) a successful candidate's disqualification from office.”

That is precisely what our Election Courts are empowered to do too. Section 32 of our Act says:

“32. The election of a candidate at any election shall be declared to be void on an election petition on any of the following grounds only which may be proved to the satisfaction of the Election Judge:

(a) that general bribery, general treating or general intimidation have so extensively prevailed that they may be reasonably supposed to have affected the result of the election;

(b) non-compliance with the provisions of any written law relating to the conduct of any election if it appears that the election was not conducted in accordance with the principles laid down in such written law and that such non-compliance affected the result of the election;

(c) that a corrupt practice or illegal practice was committed in connection with the election by the candidate or with his knowledge or consent, or by any agent of the candidate;

(d) that the candidate personally engaged a person as his election agent, or as a canvasser or agent, knowing that such person had within seven years previous to such engagement been convicted or found guilty of a corrupt practice by a Sessions Court, or by the report of an Election Judge; or

(e) that the candidate was at the time of his election a person disqualified for election.”

As we can see, the provisions are identical. (The power of “scrutiny”, ie, to recount votes is contained in section 50 of our Act.)

The Law Commission further states:

Administrative breaches

How a breach of a rule pertaining to administration of the poll should affect its validity involves a balancing act between giving teeth to the rules and achieving a certainty in electoral outcomes. The law has therefore placed some restraints on the consequences of breach. As our consultation paper explained, a challenge based on ground 2(a) above is essentially founded on the breach causally affecting the outcome of the election. In contrast, a candidate's corrupt or illegal practice or disqualification vitiates the validity of the election irrespective of the effect on the result.

The law's restraint is judicial in origin. Section 23(3) of the 1983 Act states that no UK Parliamentary election shall be declared invalid if it appears that: (a) the election was so conducted as to be substantially in accordance with the law as to elections; and (b) the act or omission did not affect the result.

Considering identical provision in the Representation of the People Act 1949, Lord Denning MR in Morgan v Simpson re-stated its wording in positive form; a breach of the rules must affect the outcome of the election in order to result in its nullity. An election will be held not to have been conducted substantially in accordance with the law as to elections if there was a "substantial departure" such as to make "the ordinary man condemn the election as a sham or a travesty of an election by ballot". The bar was thus set very high for an administrative breach to invalidate an election irrespective of its impact on the result.”

Again, that is PRECISELY the position in Malaysia. In respect of procedural non-compliance, we need to prove that such non-compliance must affect the result or outcome of the election. Please see section 32 (b) as reproduced above.

In so far as corrupt or illegal practices are concerned, these are divided into two categories:

a) where the corrupt and illegal practices were committed by the candidate himself or his agent, or with his knowledge or consent, the result is automatically vitiated regardless of whether such acts affect the result or not. (section 32 (c)).

b) where the corrupt and illegal practices have so extensively prevailed, the result would only be vitiated if they may be reasonably supposed to have affected the result of the election. Here, we do not have to show that the acts were done by the candidate, his agent or with his knowledge or consent.

What is being emphasized under sub-paragraph (b) above however is “reasonableness.” The question is, after looking at the totality of the evidence, is it reasonable for the Court to suppose that the result has been affected by the acts.

In respect of non-compliance of the rules or procedures, the question, as Lord Denning puts it in Morgan v Simpson:

Was there “substantial departure" such as to make "the ordinary man condemn the election as a sham or a travesty of an election by ballot". The bar was thus set very high for an administrative breach to invalidate an election irrespective of its impact on the result.”

That IS the position in England and that IS the position here.

Our election laws are not skewed to tolerate discrepancies. Our laws are based on the English laws as well as other respected jurisdiction within the Commonwealth.

In fact I dare say that our election laws are even better than the English laws. That is because here, we have an automatic right to appeal against any decision of the Election Court to the Federal Court (where at least 3 Judges will sit). In England, the decision of the Election Court is not appealable. A judicial review may however be asked for. But that is not automatic as judicial review may only be invoked if the High Court grants leave to do so.

When our laws place a high burden on us and do not always work in our favour or do not support our cases, it does not speak well for us to say that our laws are skewed.

Now, numerous election petitions are filed. Pakatan Rakyat is challenging many election results where the Barisan candidates had won. Conversely, Barisan Nasional is also challenging many results where the PR candidates had won.

I will bet my last dime that the Pakatan Rakyat lawyers will argue the same thing as the Barisan Nasional lawyers’ would in defending the results of the election which favour the PR candidate. In other words, all the above arguments which I have set out, will also be used by PR to defend the result of the election where the PR candidate had won.

Now, doesn’t that give new meaning to “fair is foul and foul is fair?”