Loyal Followers

Tuesday, March 27, 2012

Trading Populism Rather Than Common Sense*

*By Farish A. Noor

Malaysians can guess that elections are around the corner when the stupid-o-meter goes off the scales and our national political discourse slips into irrationality faster than normal. Though our public representatives seem inclined to present themselves as being more stupid than nature intended, their capacity to make a hash of things is an embarrassment not only to themselves, but for other Malaysians as well; and in the process Malaysia makes the funny pages in newspaper reports abroad to boot.

We have already witnessed several decades of the political parties of the land trying to out-Islamise each other, claiming the holier-than-thou mantle for themselves. We have also witnessed parties claiming that they were 'more Malay', 'more Chinese' and 'more Indian' than the other; at the cost of maintaining and reproducing the ethnic-cultural cleavages that continue to divide Malaysians. Now it seems that parties are competing to show how 'anti-Israeli' they can be, and we await the expected results as more froth rather than substance will be added to the already overheated political environment.

I was therefore somewhat disappointed (though not much) to read that some opposition MPs intend to table a motion for a bill to end all ties with Israel, whether direct or indirect. According to the report I read, the MPs stated that the law 'should include the banning of use of (Malaysian) ports by any company that has a trade interest with the Zionist regime'. I had to read that sentence several times as my eyeballs have vacated their respective sockets at first glance. (re: http://www.freemalaysiatoday.com/category/nation/2012/03/26/have-laws-to-ban-all-ties-with-israel/)

To ban the use of Malaysian ports by any company that has a trade interest with Israel?

Pray tell, how many companies or countries do not have trade relations with Israel?

Or trade relations with any country for that matter?

In the context of today's interconnected global economy, are there any countries that do not have direct or indirect trade links with any other countries? Can any country isolate itself from longitudinal linkages that may go in all directions, leading to the unlikeliest of destinations or origins?

Note that my qualm here has nothing to do with Israel per se, and everyone has the right to their opinions of what and how to characterise the Israeli state and its actions towards the Palestinians. I have made my own opinions clear in many forums and discussions in Malaysia and elsewhere. But what concerns me here is the view that Malaysia must, and can only say no, to any kind of dealing no matter how indirect and far-off with other economies.

Practically every major economy that Malaysia trades with - America, Japan, China, India, Korea, Taiwan, Singapore, United Kingdom, Germany, France, etc has trade relations with Israel, and some of them dont even bother to hide it. If country X were to buy Malaysian palm oil from Malaysia and then sell it to Israel (while grabbing a commission as go-between) does that count as a direct or indirect relation? And what if Israeli products are sold to Malaysia through another intermediary country (that likewise bags a commision), would that be direct or indirect trade? Do these people understand how economies work, for heavens sake?

My concern - which extends to all Malaysian parties, of both coalitions - is that they seem to have become captives of their own rhetoric and pyrotechnics. Furthermore they seem, in their race to out-do each other, to have painted themselves into a corner. Politics is not about saying No all the time; but rather the art of rendering the seemingly impossible possible. Smart and pragmatic politics is about creating opportunity structures and opportunity windows where the country's interests will be forever served and protected, and not burning bridges when one day one might need them.

So imagine this hypothetical situation, related to the uttermost evil country in the world, Bongonia. In Bongonia they eat babies alive. They flay kittens, exploit children, traffic old people, listen to Celine Dion. No country in human history is as evil as these dastardly Bongonians. But by some quirk of history or geography, Bongonia also produces the rare substance called Nasibrianium. Nasibrianium is such a rare resource that it, and only it, can be used in the latest hi-tech gadgets like thinking massage chairs and self-parking cars. Every country on the planet needs and wants Nasibrianium, and will do anything to get it, including overlooking the human rights abuses that take place in Bongonia. America has even sent Madonna as its special emmissary to wash the feet of the President of Bongonia, to secure contracts for Nasibrianium. China is thinking of selling all their pandas to Bongonia because that is the favourite dish of the Bongonians, just to get their hands on some Nasibrianium. 

In such a situation, what will Malaysia do? Stand on its high horse and proclaim 'Never'!, while losing whatever tactical-strategic-technological-economic leverage it might get, no matter how small? Or just say No, but buy the Nasibrianium anyway through third parties who have sold the stuff with commission, and after stamping the 'safe for Malaysian sensibilities' stamp on it? My mind boggles at times, and it is boggling now as we speak. Sigh.

End.

Tuesday, March 20, 2012

It’s Not Child’s Play

There are three very unfortunate incidents which took place in Malaysia in the past 10 days. No, I am not talking about cows or politicians.

All of them involved very young children. And all of them involved death. Even a gruesome one!

Nurul Nadirah Abdullah was 5 years old. She was asked to go to a store located a block away from her flats. She was never seen again. Until her burnt body was found some days later, that is.

Around the same time Nurul’s body was discovered, an 18 year old mother was having a picnic at Taman Tasik Titiwangsa. She was oblivious to the whereabouts of her 2 year old toddler son. The next morning, his body was found in the lake. Breathless, having obviously drowned a day earlier.

While the 2 year old was grappling for air in the lake, a 22 year old mother in Kota Baru was washing clothes. Her 15 month old son, Nik Mohd Iqbal Azim Nik Roslan slipped out of her house unnoticed. Later, his body too, was found floating in Sungai Kuala Besar. Do I need to say whether he was breathing?

It is a worrying trend. And if I may be permitted to say so, these incidents are reflective of our society’s lackadaisical attitudes towards what we perceive as “small matters” (pun not intended).

Each festive season, hundreds of us, Malaysians, die on the roads. We take traffic safety for granted. We do not give a second thought on whether or not to beat the traffic light, jump queue, drive in the emergency lanes, speed, hog the right lane, ride motorcycles without wearing a helmet or tailgate others. It is almost a culture of lawlessness in itself. Those who follow traffic laws are considered either as a moron or a selfish no-gooder. We are almost expected to break traffic laws in this country.

That lackadaisical attitudes cost numerous lives. And not to mention untold grief and difficulties to many. Ultimately, it cost millions to the government every year.

Now, we are showing symptoms of complete and utter disregard for the safety of our kids.

I have always advocated a scientific analysis of traffic offenders and accidents in this country. That way, we could possibly see a trend. What car do these people normally drive? What income group do they belong to? What kind of homes do they live in? What work do they do? What kind of work/family environment do they have?

These data may be compiled and studied. Then we would know the exact target group of whatever safety campaign we wish to launch.

The same thing could be done in respect of the three cases.

The three incidents above involved very young kids. The parents obviously belong to the lower income group. They are all Malays. And the one most glaring fact from all three cases is the fact that all the mothers involved are very young.

For instance, the mother of the 2 year old found at Tasik Titiwangsa is only 18 years of age! Which means she had had a baby at the age of 16. One wonders at what age she got married. And where was the father when the incident happened?

There must be a serious re-look at the age of marital consent in this country. Granted, in Islam, a girl as young as 11 could arguably be given to marriage. In a country where young marriages make front-page news, one wonders whether our society is getting a little bit wonkers in matters concerning marital responsibilities; parental responsibilities and the suitability of young-aged marriages.

A girl of 15 years of age is still grappling with hormonal changes in her body. She gets married. She gets pregnant. She has her marriage and husband to take care of. She stops schooling. What income can she be earning? Her 20 year old husband is finding it hard to keep a job. Then she gets a baby at 16. What kind of life is she having? What kind of life can she give her baby? A picnic at Taman Tasik Titiwangsa. And a body found floating.

I may be stereotyping. But three cases in a week are far from mere coincidences.

Oh, there was another piece of news last week. Over the radio I heard the Animals Act 1953 was going to be amended. Currently, the penalty for cruelty to animals, under section 44 of the Act, is a fine of RM200 or six month imprisonment or both.

Consider this. Under the Act, any person who, among others, wantonly or unreasonably do or omit to do any act, which in turn causes any unnecessary pain or suffering, or, being the owner, permits any unnecessary pain or suffering to any animal is regarded as having committed cruelty to animals.

That Act is now proposed to be amended in order to carry a stiffer penalty.

Now, tell me, if a person had left a cat in a car under the hot sun to die while he/she goes shopping at Tesco, wouldn’t she be found guilty under section 44 of the Animals Act?

Susbtitute a 15 month old baby for the cat. He/she wouldn’t be guilty, right?

Why? Because the 15 month old baby is not an animal.

Go figure.

Monday, March 19, 2012

1Maid 1Kerja

First it was 1Maid 1Kerja. Now it is this.

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What’s next?

Friday, March 09, 2012

For want of a nail, a shoe was lost…

In  his book, “The Due Process of Law”, at page 6, the great Lord Denning, recounts a delightful story.

“On every Monday morning we hear litigants in person. Miss Stone was often there. She made an application before us. We refused it. She was sitting in the front row with a book-case within her reach. She picked up one of Butterworth’s ‘Workmen’s Compensation Cases’ and threw it at us. It passed between Lord Justice Diplock and me. She picked up another. That went wide too. She said, ‘I am running out of ammunition’. We took little notice. She had hoped we would commit her for contempt of court – just to draw more attention to herself. As we took no notice, she went towards the door. She left saying: ‘I congratulate your Lordships on your coolness under fire’.”

Of course, in our Federal Court recently, shoes went a-flying towards the Bench rather than books.

When I first read about the shoe-throwing incident in our Federal Court, my first reaction was to think, why wasn’t the shoe-thrower arrested and made to answer a contempt charge? To my mind, the act of throwing shoes at the Judges was surely contemptuous. And for the Court to let it be, without taking any action against him scandalises the Federal Court. Even worse than that, other people, including some disgruntled lawyers in the future might choose to do the same after having seen a precedent being set where the culprit was left scot free. Frankly, I myself, have had the discomforting thought of throwing my bags at some Judges before.

Later I read that a police report was lodged against the Jimmy Shoe. Then yesterday, I read that Mr Shoe-go-lucky was summoned to the Court to answer a contempt charge. The same Judges sat to hear the contempt proceeding, found him guilty and sentenced him to 12 month jail.

In passing the sentence, Federal Court Justice Suriyadi was reported to have said:

"You hold a religious position which is held in high esteem by the public. However, you showed characteristics of being barbaric and violent.

"You showed disrespect to the court."

(Full report is here.)

The power of the Court to punish contemptuous act was first laid out by Wilmot J in R v Almon in 1765. Such power, according to Wilmot J, was necessary to vindicate the authority of the Court. It was a power which forms the foundation of the Court as an institution.

It was therefore thought that the power to commit people for contempt of Court was an incidental power of the Court in order to protect the dignity and authority of the Court.

In modern democracy, it has been argued that such view is obsolete. It is now argued that the necessity to protect the dignity and authority of the Court as stated in R v Almon rested on the premise that in the olden days, the Court was an appurtenance of the King, from whom the Court derived its powers. Thus, protecting the dignity and authority of the Court was anomalous to protecting the  King’s dignity and authority.

This position, in a modern democracy, is of course not applicable anymore as in a democracy, the Court, just like any other machinations of the State, derives its dignity and authority from the people.

Being so, it is now argued thus:

“In a democracy, on the other hand, it is the people who are supreme, and therefore they are the superior entity, while all State authorities (including Judges) are inferior entities, being the servants of the people. Hence in a democracy there is no need for Judges to vindicate their authority or display majesty or pomp. Their authority will come from the public confidence, and this in turn will be an outcome of their own conduct, their integrity, impartiality, learning and simplicity. No other vindication is required in a democracy by Judges, and there is no need for them to display majesty and authority.” (Contempt of Court: The need for a fresh look - Justice Markandey Katju ,Judge, Supreme Court of India).

The whole premise of the power to punish for contempt of Court in modern times have therefore been substantially changed. While the power was said to exist for the vindication of the Court and protection of its dignity and authority before, currently the power is held to protect the administration of justice instead.

In AG vs. BBB (1980) 3 All ER 161 (170), Lord Salmon said:

“The description `Contempt of Court’ no doubt has a historical basis, but it is nonetheless misleading. Its object is not to protect the dignity of the Courts but to protect the administration of justice.”

Even as early as 1968, in R vs. Commissioner of Police (1968) 2 QB 150 Lord Denning found it necessary for the Court to break away from the notion that it was protecting its own dignity or authority. His Lordship stated:

“Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it.For there is something far more important at stake. It is no less than freedom of speech itself.”

The most telling part of Lord Denning’s judgment in that case, however, is this: 

“All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.” (emphasis is mine).

Many of us will remember the Spycatcher case. It’s official name is Attorney General v. Guardian Newspaper 1987(3) All.E.R. 316. What happened there was Peter Wright, a former spy, wrote a book, entitled The Spycatcher, chronicling his days as a British spy. The government took an injunction against the book. The case went up right to the highest Court in Britain, the House of Lords. In a 3-2 majority decision, the House of Lords granted an injunction against the publication of the book for national security reason.

The next day, some newspapers published pictures of the 3 majority Judges upside down with the caption “YOU FOOLS.”

One of the three Judges in the majority decision, Lord Templeman, was asked why contempt proceeding was not initiated  against the newspapers. He just smiled and was quoted as saying:

“Judges in England did not take notice of personal insults. Though he believed he was not a fool, others were entitled to their opinion.”

It is quite obvious that now that the power to punish contemptuous acts is not utilised to either vindicate the Court or to protect its authority. Nor is it used to instil respect to the Court.

In current days, the Court vindicates itself by being independent, by coming up with highly stimulating and intellectual analysis of the facts and the laws in cases before it and by determining cases judiciously, far from being bias and without fear or favour. Respect and awe for the Courts are no more foisted unto the people by exercising the might of judicial power such as imposing a 12 month imprisonment on a lay person who appeared in Court without any legal Counsel fighting against Counsel for various government agencies. In fact that might work negatively.

One striking aspect of yesterday’s proceeding is the fact that all three Judges, at whom the shoes were thrown, sat to hear the contempt charge and proceeded to sentence the contemnor.

Admittedly, the act was contemptuous. And admittedly too, the three Judges have the power to hear the contempt case and sentence the contemnor.

Justice must not only be done, but also must be seen to be done. This judicial pronouncement has been so frequently mentioned so much so that it has become a legal maxim of sorts.

In my humble opinion, and I say this with the greatest of respect to Federal Court Justices Zulkifli Makinuddin, Suriyadi Halim Omar and Zaleha Zahari (for whom I have the greatest of respect), it would have served the above maxim far better in the public eye if her Ladyship and their Lordship had recused themselves from sentencing the contemnor or even from hearing the contempt charge by themselves.

The shoes were thrown at their Ladyship and Lordships personally. It is not only the Court or the Bench which was insulted (and perhaps attacked) by the contemnor. Their Ladyship and Lordships themselves, personally and individually, were attacked and insulted. Surely, in the eye of the people, the Judges involved cannot say with an amount of credibility that no emotion or personal feeling was involved in the conviction and subsequent sentencing of the contemnor.

Perhaps Lord Denning’s story at the beginning of this article could serve all of us with some food for thought.

Just perhaps.

By the way, the title to this article is part of an old English proverb which goes like this:

For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the message was lost.
For want of a message the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.

Wikipedia explains that the proverb “describes a situation where permitting some small undesirable situation will allow gradual and inexorable worsening.”

Can we learn something from this proverb?

Perhaps we can.

Tuesday, March 06, 2012

Making An Ass of the Law

 

Mr Brownlow: “In the eyes of the law, you are the more guilty of the two, for the law supposes that your wife acts under your direction.”

Mr Bumble: "If the law supposes that ... the law is a [sic] ass - a [sic] idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience."

The above is of course the oft-repeated scene from Charles Dickens’ Oliver Twist. Dickens has of course frequently been credited with the phrase “the law is a (sic) ass” although purists argue that the phrase was earlier published by George Chapman in 1654 in his play, “Revenge for Honour.”

Be that as it may, many of us (including lawyers) do believe in the accuracy of the phrase. Well, they are not to blame, really. Reading some of the laws passed and decisions made by the Courts around the world lend credence to the phrase. However, allow me to remind you that laws are made and interpreted by people.

Being so, it is not the law which is the ass.

Laws are passed for certain specific reasons and functions. They are supposed to reflect the society’s preference for or abhorrence of certain things or acts. We criminalise murder or rape, for example, because we, as a society, regard them as unacceptable towards our wellbeing as a society. However, when such good laws are given an interpretation or application which is bereft of rationality, than the law becomes an ass. Or rather, the law has been rendered an ass.

Quite often too, bad laws and rules are passed by the very people in whom we entrust the duty to regulate. In this case, again, the law is not to blame. The people who pass them are. And when we think that it was us, in the first place, who entrust these people to regulate us, than it is we who are to blame for the laws which make an ass out of all of us.

Thus we have people who try to ban Valentine’s Day celebration as apparently, our youths have the tendency to fornicate endlessly on 14th February every year. As evidence, well, just look at the number of baby dumping, say these moral Nazis.

Of course, in Perak, the poco-poco dance is banned. Why? Because the movements in the dance bear resemblance to the very evil Christian cross. Thus the Muslims who dance the poco-poco may unsuspectingly change their faith while doing so. While we are at it, why don’t we also change all T-junctions to roundabouts, please. Thank you for saving my faith.

Recently, we ban a sex education book written 40 years ago because apparently it may affect the moral of our kids. Well, I am sure for the past 40 years, the book has been the subject of surveillance in Malaysia. It has been found that all the babies born out of wedlock here are the result of that book. All the rapes and sodomies as well. And just count the number of baby dumping in Malaysia nowadays. I bet you it’s that book which is the cause.

Have you all noticed that our local radio would erase out the word “morphine” from Bruno Mar’s “It Will Rain?” Yes. In Malaysia, Bruno Mars would go “If you ever leave me baby; Leave some bzz bzz at my door…” (Why don’t we be a bit more creative? Fill in the blanked out lyric with some other words, like “cheese cake” or something, ya?).

We are even allergic to the word “morphine” nowadays. Now, please utter the word, “morphine, morphine, morphine, morphine.” Now, have you all become drug addicts? While we are at it, why haven’t we blanked out “ménage et trois” from Katy Perry’s “Last Friday Night”? Oh, I forgot, nobody in the censorship board understands that French phrase.

Last week the Erykah Badu concert was banned when pictures of herself with tattoos of “Allah” in Arabic was splashed by a newspaper. According to official statements, problems may arise if the concert were to go on.

Have we ever looked at the real problems before banning things?

Let’s analyse what the problem was in the Erykah Badu case. Apparently some Muslims were insulted by the tattoos. Okay. Let’s just accept that as a fact, shall we? Now, does the banning of the concert do anything to “de-insult” the Muslims? Obviously not. Next question – assuming she has that tattoos on her body, does the banning in any way make her take away the offending tattoos? Does the banning make her “repent” so to speak? No. Not in a million years. Next – does the banning make all her Muslims fan burn her CDs and refuse to listen to her songs and therefore save their “aqidah” from this very evil woman? No.

And the million ringgit question is, how will this “no-offensive-tattoos-on your-body” rule be enforced on all artists/performers/speakers/comedians/politicians/imams, local or foreign, after this? I can imagine an approval letter for a foreign artist to perform in Malaysia being issued from now onwards. It says:

This permit is conditional upon the performing artist subjecting him/herself to a full and most transparent body check-up. Any tattoos deemed offensive on, within or inside his or her body will automatically invalidate this permit.”

Ladies and gentlemen, we have landed at the KLIA. Go direct to jail. Do not collect your $200.