“We can only truly respect highly the man who is not seeking himself” Goethe to Rat Schlosser.
The substance of a civilized person is to be found in a noble soul. The nobility of one’s soul is not an inherited trait nor is it conditioned by formal things – like dress, manners and titles.
In my view, no one is born noble. Civilization is cultivated attitude. It is inherent in a person’s attitudes towards life and towards others. It is an intrinsic part of a person’s being. It is a self reflective attitude that makes one examine one’s reasons for being alive. A person who understands his purpose for living and who has empathy for others begins the journey towards being civilized.
People who have lived comfortable lives cannot even begin to understand the essence of nobility. The Guatama Buddha proved this. He had to forsake everything that is material to find himself. The cloak of materialism obscured and hid reality from him. Not the reality of the external world – of others. But the reality of what was within him. It was in suffering he confronted himself. Nobility does not come from rank or position – it comes from within. Friedrich Nietzsche in his book “Beyond Good and Evil” wrote something very profound that has influenced me greatly,
“The spiritual arrogance and disgust of every man who has suffered deeply — how profoundly men can suffer almost determines their order of rank — his chilling certainty, with which he is thoroughly soaked and coloured, that thanks to his suffering he knows more than the cleverest and wisest can know, that he has known and at some point been “at home” in many terrible far-off worlds, about which “you know nothing!” . . . this spiritual and silent arrogance of the sufferer, this pride of the one chosen to know, of the “initiate,” of the one who has almost been sacrificed, finds all kinds of disguises necessary to protect himself from contact with prying and compassionate hands and, in general, from everything which is not his equal in pain. Profound suffering ennobles; it separates.
One of the most sophisticated forms of disguise is Epicureanism and a certain future courageousness in taste adopted as a show, which takes suffering lightly and resists everything sad and deep. There are “cheerful men” who use cheerfulness because it makes them misunderstood — they want to be misunderstood. There are “scientific men” who use science because that provides a cheerful appearance and because being scientific enables one to infer that the man is superficial — they want to tempt people to a false conclusion. There are free, impudent spirits who would like to hide and deny that they are broken, proud, incurable hearts; and now and then even foolishness is a mask for an unholy, all-too-certain knowledge. Hence, it follows that it’s part of a more sophisticated humanity to have reverence “for the mask” and not to pursue psychology and curiosity in the wrong place.”
I say without reservation and equivocation that he is right. Only those who have suffered and endured difficulty will understand the pain of others. It takes our soul to a different plane and enriches it. It rebrands our view of the world and of others and despite our other shortcomings, makes us feel in a more real way. But even those who have suffered, have a choice. To find the nobility within their soul, and live an enriched live. Or to succumb to the mask. Respect for the mask. That has been the history of human civilization. It is an altogether sad indictment of the human condition – we must strive towards a better existence. One that is rooted in the substance of what is civilized and great.
“Civilization is the progress toward a society of privacy. The savage’s whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men.”
AYN RAND, The Fountainhead
What is freedom? What does it mean to be free? How civilised are we in a world where there exists such great wealth and yet we allow such devastating suffering to exist?
A person cannot claim to be civilized if they do nothing to improve the conditions of life of the destitute and the downtrodden. Most people I know believe themselves to be civilized. Because they speak politely, dress well, eat with etiquette and generally are unoffensive. They spend their lives lamenting the ordinariness of their accomplishments and brood over why some have it so good, like the Sultan of Brunei or the Queen of England.
They aspire towards a better life for themselves – don’t they deserve it! I find such people despicable – and I am afraid may be one of them. Just juxtapose these two images and see if you can find what wrong with the picture that emerges.
What noble ideas I had when I was younger. I believed and still do that to be civilized one has to believe in a ‘human race’. One in which each and every human being has the opportunity to live a free from poverty. Empowered to pursue their dreams and realise their full potential as individuals. A world in which each individual is treated with the same respect for his individuality and enjoys the same quality of life. People are uncivilized and vulgar to the extent that they allow others to suffer without rendering any assistance – regardless of how polite they are, how they dress or how they eat.
Capitalism without conscience has perverted human condition and what is happening on Wall Street today is a vindication of those who believe this to be the case. It is a case of ‘false’ wealth created by the greedy for the even more greedy. A case of an edifice without a base. How easily it crumbles. These people have led enterprises that have derided the human condition.
What is it that makes us civilized? Is it the way we dress, good manners, our aesthetics or things like that? Or is it our profound respect for others. We always talk about respect as being an important part of our own self esteem. So why are we less circumspect when it comes to others. Why do our views and values take precedence over those of other people? Is it arrogance that makes us think that somehow our position in any given matter is better. Does that fact that many people agree with our views make our views any better compared to a view that has little or no popular support? This is what I am thinking about these days. I have been accused by many of being arrogant. I think it is because I always think my views are superior. But is it arrogance to believe in ones own position on any subject, to be steadfast in defending it and to be generally happy with that?
I return to the question – What is it to be civilised? I think a civilised human being is one who accepts that nothing about his existence is permanent. Empire builders are not civilised. They have no concept about the meaning of their existence. We meet empire builders of every description daily. They are the politicians who cannot quit power and overstay their welcome – building material wealth for themselves, their children, their grandchildren and so forth for posterity until the end of time. They are the corporate giants, who don’t realise that in the entire scheme of things their contribution will be measured by different benchmarks. They are all the people who yearn for and seek dominion and control over the lives of others – seeking to imprint (by compulsion if necessary) a part of their values and ideas. To shape the destiny of others, failing to realise how little control they have on their own destinies. Whether you are a pauper or a billionaire your impact on your own life is determined by your own mortality and the lessons you are willing to learn during your tenure on Earth.
Let me begin by examining the various juristic traditions and their justifications and possible motivations. I think a good starting point is a theory that asserts that LAW IS POWER.
John Austin’s Positivism
Austin more than any other jurist provided a compact and systematic formulation of a conception of law which allowed an escape from the tradition bound theory implicit in classical English common law thought. He offered a way of looking at law that made legislation central rather than peripheral. Perhaps an indication of the times in which he lived, the gradual secularization of the state and the ascendancy of Parliament over the King and the Church. His legal theory recognized the reality of the modern state as a massive organization of power. Tearing down mercilessly pretensions about justice and its relationship with law.
I repeat a sentiment expressed earlier,
“The science of jurisprudence is concerned with positive laws, or with laws strictly so called, as considered without regard for their goodness or badness.”It is important to understand that the primary motivation for Austin in his jurisprudence was his disenchantment with the English common law. He was generally hostile about judge made law. His teacher, Jeremy Bentham, once wrote that judge made law is like waiting for one’s dog to do something wrong and then beating it. The common law had a reactive focus rather than a pro-active one. It was not a progressive system of law. By contrast, Austin saw Roman law, especially as interpreted and developed by continental civil jurists as the epitome of a rational legal order vastly superior to the English common law in its organization and coherent development. He says of it, “ Turning from the study of the English to the study of the Roman Law, you escape from the empire of chaos and darkness, to a world which seems, by comparison, the region of order and light.”
The Command Theory
The proper “Province of Jurisprudence” is positive law and the ‘key in the sciences of jurisprudence and morals’ is the ‘command’, Austin claimed. For this reason his theory is referred to as ‘The Command Theory of Law’.
“A law in the most general and comprehensive acceptance in which the term, in its literal meaning, is employed, may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”Hence put succinctly: “LAW IS THE COMMAND OF A SOVEREIGN”
The command is basically an order that is validated by the political system and enforced by the use of sanctions. Hence the idea of command is closely linked to the force that is used to compel compliance.
Austin defines law as a species of command, like Hobbes before him. Austin is direct and straightforward in his characterization of law. For him power is central to law. Thus the sanction is an important part of the command. Austin says that the must be an actual likelihood of a sanction being imposed. This is because for Austin it is the sanction, which supplies the motive for compliance.
Therefore what Austin is saying is that people obey laws because of their fear of sanctions. Austin goes on to say that ‘the greater the sanction and the greater the likelihood of it being applied, the greater the obligation’ under the law. This is essentially a simple idea – Austin is saying that because the penalty for murder is life imprisonment and the penalty for a traffic offence is a fine, people feel under a greater obligation not to commit murder. Similarly he is saying that people are more likely to stop at the red traffic light at 12 noon, then at 2am in the morning because the likelihood of detection is greater at 12 noon.
The distinctive feature of law is that it law is the command of the ‘Sovereign’ not anyone else.
He says, the sovereign is “a determinate human superior, not in a habit of obedience to a like superior, (and who) receives habitual obedience from the bulk of a given society…..that determinate superior is sovereign in that society, and that society…..is a society political and independent.”
Austin’s concept of the sovereignty is highly controversial. Positive law is the command of the sovereign. The sovereign is an actual person or an assemblage of persons who do not habitually obey anyone but who are habitually obeyed by everyone in an independent political society.
Austin says there are two marks of sovereignty: first, the sovereign must be ‘habitually obeyed’ by the ‘bulk’ of the society (a condition of general efficacy), this being the positive mark of sovereignty, second, the sovereign does not habitually obey anyone else, this being the negative mark of sovereignty. He says two consequences flow from this definition, the sovereign is legally indivisible (the positive mark) and the sovereign is not capable of being legally limited (the negative mark).
Something to think about
Although it appears that commands flow from the sovereign, when Austin’s definition of the Sovereign is closely analyzed, it becomes clear that it is the ability to command habitual obedience that makes someone the sovereign. Therefore the question is: Is it because a person is habitually obeyed that he is able to command, or is it because he is able to command that he is habitually obeyed?
(To be continued)
The history of the world is a history of conflict. Marx conceived this conflict as a ‘class struggle’. The struggle for the emancipation of the workers – the struggle towards an egalitarian society. Marx looked up law as an instrument of class oppression, it functioned to bolster the position of the capitalist and keep in check class antagonisms. Whilst there is some measure of truth in what Marx says, I do not think that even Marx could have rationalised the wholly irrational world that has come into being over the past 50 or so years. Today, we live in a world defined by conflict and limited by ignorance.
A CONFLICTED WORLD
Recent events around the world have prompted me to reexamine the question – what is law? Does the liberal claim that law is a purposive activity have any merit, and if so, what exists in countries where the law is not purposive but is used as an instrument of tyranny. There is always the status quo and that is juxtaposed against forces that what to change the system.
Some of the major conflicts around the world today are:
1. Sri Lankan civil war
2. War in Afghanistan
3. Iraq war
4. War in Darfur
5. War in Somalia
6. Conflict in Burma
7. Arab-Israeli conflict
8. Armed conflict in Colombia
9. Communist and Islamic insurgency in the Philippines
10. Internal conflict in Peru
11. Turkey-PKK conflict
12. Somali civil war
13. Kashmir conflict (India/Pakistan)
14. Casamance conflict (Senegal)
15. Conflict in the Niger Delta (Nigeria)
16. Ethnic conflict in Nagaland (India)
17. Insurgency in Oganden (Ethiopia)
18. Kivu conflict (Congo)
19. Chechen War (Russia)
20. Insurgency in the Maghreb (Algeria, Mauritania & Morocco)
21. Balochistan conflict (Pakistan)
22. Sa’dah insurgency (Yemen)
23. South Thailand insurgency
24. War in Chad
25. Mount Elgon insurgency (Kenya)
26. Fatah-Hamas conflict
27. Tuareg rebellion (Mali)
All of these conflicts cannot be examined by reference to any one juristic tradition. Their causes are manifold and the political and ideological backdrop ever changing. So what is law and can it exist in these circumstances? And can there be a duty to obey law in such conflicted systems and if so, what is legal obligation.
In International Law there seems be little problem in trying people for large scale genocide under the broad umbrella of ‘crimes against humanity’. In 2002, the International Criminal Court (ICC) was established in The Hague. The Rome Statute provides for the ICC to have jurisdiction over genocide, crimes against humanity and war crimes. The definition of what is a “crime against humanity” is stated in Article 7 of the treaty as follows:
“Crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder;(b) Extermination;(c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;(f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
This is further explained in the Rome Statute Explanatory Memorandum which states that crimes against humanity are particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. However, murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the category of crimes under discussion. On the other hand, an individual may be guilty of crimes against humanity even if he perpetrates one or two of the offences mentioned above, or engages in one such offence against only a few civilians, provided those offences are part of a consistent pattern of misbehavior by a number of persons linked to that offender (for example, because they engage in armed action on the same side or because they are parties to a common plan or for any similar reason.) Consequently when one or more individuals are not accused of planning or carrying out a policy of inhumanity, but simply of perpetrating specific atrocities or vicious acts, in order to determine whether the necessary threshold is met one should use the following test: one ought to look at these atrocities or acts in their context and verify whether they may be regarded as part of an overall policy or a consistent pattern of an inhumanity, or whether they instead constitute isolated or sporadic acts of cruelty and wickedness.
The problem with this is that it presupposes some broad juristic principle calling for the preservation of humanity. This then is based on some preconceived idea of what the ‘legal obligation’ to preserve ‘humanity’ consists of. I for one am unconvinced. Please do not misunderstand my position – clearly there are many individuals who have perpetrated untold tortures and genocide against defenseless people who are richly deserving of condemnation. The problem I have with this is this – invariably all those individuals who are brought to trial are deposed and powerless at the time of their trial –
- President of Nazi Germany Karl Dönitz and Prime Minister Hideki Tojo of the Empire of Japan in the aftermath of World War II.
- Former Yugoslav President Slobodan Milošević was brought to trial for war crimes and genocide, but died in custody on March 11, 2006, before the trial could be concluded.
- Saddam Hussein, who was sentenced to death for the atrocities he committed against the Iraqi people during his tenure as President.
- Radovan Karadzic, the former Bosnian Serb leader.
- Former Liberian President Charles G. Taylor was also brought to the Hague charged with war crimes; his trial was provisionally scheduled to begin in April 2007, but was postponed until June 2007 to allow the defense more time to prepare, and is now ongoing.
The jurisprudence in all this:
The position of many modern day lawyers mirrors the views expressed by the English positivists of the 19th century. The English jurist John Austin famously said, ‘ The most pernicious laws and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals ……. An exception, demurrer, or plea, founded on the law of God was never heard in a Court of Justice’.
On this view, law is an instrument of political power and it reflects whatever political base exists in a country. Accordingly, when a system loses its political efficacy, it ceases to have any validity and the new system is valid. This means that the people who now have the POWER will call the shots and in my view the many prosecutions for crimes against humanity is an illustration of this fact, rather than any claim based on fairness or morality. The whole idea that ‘justice’ is being served by the work of the ICC is an oversimplification of the forces at work.
A crime against humanity” occurs when there is a widespread or systematic attack directed against any civilian population – isn’t that what happened when the United States and their allies invaded Iraq. When the Soviet Union invaded Afghanistan and more recently when Russia invaded Georgia. When China invaded Tibet. We see this again and again around the world. The United States, the most powerful country in the world and ideologically the most democratic is guilty of many crimes against humanity, the manner in which prisoners are treated in Guantanamo are particularly odious offences in that they constitute a serious attack on human dignity, grave humiliation and degradation of all the human beings held there. The ultimate defense is that they are engaged in a war against terror. What about the terror that they have caused in the world against millions of innocent civilians? Does the death of 3,000 Americans on September 11 in New York justify the actions taken in retaliation for it.
CLEARY WHAT THIS REPRESENTS IS NOT THAT RIGHT IS MIGHT, BUT RATHER THAT MIGHT IS RIGHT. This is essentially the positivist mantra.
Yet justice more than any other concept has been the most closely associated with law. Positivism holds that law and justice sometimes can and is a paradoxical dichotomy.
(TO BE CONTINUED)
My early upbringing as a Hindu made me think hard about the ‘truth’ in the karma theory. My mother was a very religious woman and was indoctrinated with a ritualistic and dogmatic view of Hinduism, which she sought to indoctrinate me with. Until about 15, I tried to see things her way but the practice of Hinduism, particularly the ritualistic elements, drove me to seek an answer elsewhere. I mean no disrespect to the Hindu people but I just cannot accept this view of God.
THE MYSTERIOUS GOD
I wish to classify all religions that explain God by virtue of partial explanations – religions of the mysterious God. I shall use for the purposes of exposition a hypothetical religion, I shall call – Mysteryism. In mysteryism God is hidden from normal epistemology. The universe is divided into two spheres of good and evil and God is the protector of the “good”. Doing “good” is an essential part of finding a way to God and what is “good” is dictated by God. God chooses a few messengers and over time communicates this “good” to the entire human race through these messengers – the chosen ones. There is a complete mystery about how and why these individuals have been chosen and no coherent connection between the various individuals. These messengers spread a message that portrays God in a contradictory way. First an image of God as a kind, benevolent, loving and forgiving God. A God that teaches us to love our enemies and forgive those you trespass and sin against us. This is juxtaposed to the image of a God who merciless tormentor of sinners – the punishment for not following his commands is eternal damnation. The doctrine would assert something like, “Unbelievers, the fearful, liars, sexually immoral people and many others will be cast into the Lake of Fire…. the cowardly, unbelieving, abominable, murderers, sexually immoral, sorcerers, idolaters, and all liars shall have their part in the lake which burns with fire and brimstone, which is the second death.” Not a very pretty picture.
BUT there is a saving grace normally, even right at the very end, if you repent you shall be forgiven and all is well.
The problem with this is that normally the requirement is that you should embrace the religion of Mysterysim and accept all its central tenets as a pre-condition to being forgiven. Mysteryism would assert that all people who have been in one or more of the above mentioned categories of “bad” at sometime in their lifetime, can repent of all these things, and be washed clean by God. “God will wash us clean if we turn from it, and believe. He will wash us many times while we are learning to overcome sin”.
So I have this mental image of a good man living in a place, where the people have never heard of Mysteryism. The man is humble and spends all his life in the service of his family and the villagers. He has never embraced Mysteryism because he has never heard of it, or even if he has heard of it, he is not convinced enough to abandon his own belief system, which has a multigenerational foundation and which he has inherited.
Now he dies and because he does not embrace Mysteryism as his faith, he is unbelieving and therefore shares the same berth as murderers, sexually immoral, sorcerers, idolaters, and all liars, and therefore is condemned to burn in fire and brimstone for eternity.
By contrast, you now have a cowardly, unbelieving, abominable, murderer who is sexually immoral and rapes and kills children. This man right at the end repents and embraces with full faith Mysteryism – he is spared this condemnation and is welcomed by God, who forgives him.
There is something seriously wrong with this – don’t you think! God is a schizophrenic. Furthermore, shouldn’t a loving God just give the sinners a good, stern, talking to and say something to the effect of “I love you in spite of your sins” and then send them to his Kingdom? What is the need for eternal inferno if God is supposed to be loving? No truly loving God would create a place of eternal torment such as Hell. There are all sorts of rationalizations such as “God allows us to choose because He loves us” and “a loving Parent sometimes has to punish,” but these don’t hold up to rational examination. But therein lies the mystery – only God knows the answer.
“Where is God in all this suffering?” – Nicodemus
The principle of equality, as I said before is enshrined in our Constitution. But what does the principle involve? The philosophical concept of equality is controversial and contested. Equality is not necessarily fairness. We live in a world of great inequality and clearly one of the primary functions of law in a society is to redress this inequality.
Harry Blackmun put it succinctly, “In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently”. In this context, the New Economic Policy and other plans of affirmative action is certainly desirable to reconstruct the structure of society. The unique feature of the NEP is that it is racially driven. The failure of this model is that while, the beneficiaries of such affirmative action will have an opportunity to participate in the mainstream of society, signaling the end of the ‘Malay Dilemma’, other neglected classes will be disenfranchised and become a ‘New Dilemma’ for society. The HINDRAF rallies proved this amply. Today, many Malaysians of Indian origin are so disenfranchised, that they have became removed from the mainstream of Malaysian society. This represents a very serious problem in the realization of a just and equitable civil society. But that’s only part of the problem, the ‘Malay Dilemma’ has not been completely resolved. The NEP has seen Malays have a greater stake in the economy, but that is only qualitatively, NOT quantitatively. It represents a lot of wealth in the hands of a few – a new kind of Malay aristocracy has been created. The rise of a formidable opposition and the continued support for Anwar Ibrahim and PAS is clear evidence of this. If the Malays are not united as many politicians claim, it is because many of them perceive and recognize the failure of the NEP in creating a more egalitarian Malay community.
The Bogus Clarion Call
“The Malays must be united or they will be threatened by other races and lose their special rights” – this is the kind of rhetoric used by Malay politicians to garner support for themselves. The problem with this is that it is factually wrong and intellectually stunted. The Countess of Blessington once remarked, “Prejudices are the chains forged by ignorance to keep men apart”.
This is so true in the present scenario. I do not for one moment think that any particular race group is a threat to another in our country. Malaysians are by and large not racists. We have been living together for hundreds of years NOT only since independence. As Martin Luther King Jr. said, “I refuse to accept the view that mankind is so tragically bound to the starless midnight of racism and war that the bright daybreak of peace and brotherhood can never become a reality”. Malaysians have enjoyed such a brotherhood for many years. It is not a perfect brotherhood but one in which, like members within a family, there has been considerable give and take. We share a common destiny, many non Malays are also non Chinese and non Indians. They have been so far removed from their historical roots that they are no longer really Chinese or Indian. All of the present generation of non Malays are born and bred Malaysians. This divide between Malays and non Malays is really arbitrary, the reality is that we live very similar lives and are confronted by very similar problems.
Our constitutional reality is best expressed in the words of Sara Harrington, who said, “While the legal, material, and even superficial requirements to eradicate racism are well known, its psychological and more deeply spiritual requirements have been persistently neglected-namely, the oneness of the human family. It is this principle of oneness that needs to be the driving force behind the struggle of uniting the races.”
We have to make real this common destiny and understand that, “The good we secure for ourselves is precarious and uncertain until it is secured for all of us and incorporated into our common life” – Jane Addams.
This past week has seen several incidents that seem to indicate to me that after more than 50 years of independence, our nation is still perched on the dangerous cliff called ‘racism’. Our moral integrity as human beings hanging on for dear life, as the political forces of myopia diligently plot our fall.
Selangor Menteri Besar Tan Sri Khalid Ibrahim’s suggestion for UiTM to open up 10% of its intake to other races was met with a generally hostile response since the move was seen as challenging the special rights of the Malays. The general argument is that if UITM opened its doors this would lead to a situation where many Malay institutions will disintegrate. This would lead to the special rights of Malays being eroded.
Racism has been a part of our culture since the country’s inception. It’s very much an open secret. The secret part of it is largely due to the provisions of the Sedition Act which make it an offence to incite or inflame racial sentiments. Yet over the past one week, I have heard prominent Malay politicians say things like, “Don’t push the envelope with the Malays or be prepared to face the consequences – you don’t know what’s coming”. “Don’t challenge the Malays.”
I think I have been living in a fantasy world (but I am convinced I am not alone). I don’t and never have thought of my friends by reference to their racial denomination. A Malay, a Chinese, an Indian, etc. They are my friends, Ahmad, Peter and Samy. I have never attached any special significance to their race because it really does not matter. People are good or bad, or sometimes a bit of both. Race does not prequalify a person to any special claim or right in relation to character, integrity or virtue. In my mind the average Malaysian does not think about race either. Most people are thinking about how to improve their conditions of living and surviving mostly, in what is a grossly inequitable world.
Embracing cultural diversity, with tolerance, respect and understanding should be the fundamental principle of any nation that aspires towards greatness. These laudable principles would probably be applauded by many but the question is how do we deal with this complex, emotive and at times, divisive ethos without causing further conflict or merely treating it in a superficial manner? My main concern is that we must deal with our multiculturalism in a manner which avoids tokenism.
This is the course that the Malaysian leadership has embraced over the past 40 years. At least in my living memory. A path of tokenism.
For Malaysia to be truly Asia (as the song goes) our society must embrace multiculturalism wholeheartedly as something that strengthens us not the contrary. It requires a tolerance of difference and a pluralistic view of culture. For these attributes to be part of a society’s psyche there must first exist empathy and a willingness to examine one’s own perspectives in the light of alternate perspectives. Our education system lies at the heart of this process.
Educators are in a unique position to foster and facilitate those personal characteristics necessary to accept change open-mindedly and with a willingness to incorporate the aspirations of all for the wellbeing of all. This sort of attitude to life is one which must evolve. It requires a particular approach to life and learning – a sincere and courageous quest for truth and meaning in all facets of one’s learning. A pluralistic view of life can only be gained through a desire to understand and respect the experiences of others, and this can only be achieved effectively when it is incorporated automatically into one’s reflections about life.
It is shameful when the very education system and educators who should be promoting critical thinking and open mindedness, skew the system to achieve very short term and myopic political aims.
Racism as a social toxin, the origin of which can only be found by delving deeply into the social unconscious. Differences of opinion on the complex issues of religion, law, morality and customs will always exist between varying cultures. We have to be respectful of each other and develop a sense of conviction that we have a common history and a common destiny. We must believe in the power inherent within us to remove some of the barriers and render those that remain more transparent, thus providing a glimpse into the thoughts and feelings of those who live on the other side. There is no antidote to the toxin but we could help pave the way for an increase in tolerance and an enrichment of our lives, gained through an everwidening range of possibilities from which to choose when determining our beliefs, codes of behaviour, and our direction as a society.
“Affirmative action” means positive steps taken to increase the representation of Malays in areas of employment, education, and business because they have been historically disadvantaged. In my view this is both necessary and desirable to create social equilibrium. Nothing will endanger our society more greatly than our unwillingness or inability to provide opportunities for people who are socially disadvantaged.
This is different from saying that because I come from a particular race group, I am entitled to certain rights even though I don’t need such preferential treatment. Such an assertion will make a sham of the fundamental principle of equality enshrined in Art. 8 (1) of our federal constitution. The principle of equality is the most fundamental of human rights and has been described as the “starting point of all liberties”. International human rights law reflects this belief. Art.3 of the Universal Declaration of Human Rights, 1948 (UDHR) declares that all human beings are born free and equal in dignity and rights. The UDHR is not a treaty but it embodies a moral authority and sets out a common standard of achievement of all peoples and nations. The UDHR is the root document from which the international human rights treaties have grown.
(TO BE CONTINUED)
THERE is never a wrong time to stand up for the right thing. I wish to express my admiration for the learned judges who preferred to err on the side of caution and to free Datuk Seri Anwar Ibrahim.
I have taught legal philosophy to many students over the last 20 years. In recent years it has become a purely academic exercise for me. It is when practice meets principle that the legal system begins to come alive and be real to the man in the street. Since Anwar’s conviction, it became impossible to defend some of these principles – the most cardinal of which is the “presumption of innocence.” Many reconciled the position and earlier decisions on the basis of political reality and expediency – I could not.
I have always been of the belief that the law provides an independent test of guilt or innocence – it is not based on truth (since often, the truth is pliable), it is based on evidence. This is the principle upheld by the Federal Court in Anwar’s case. When I read of Anwar’s acquittal yesterday, I found myself believing in the legal system once again.
The rule of law requires the subjection of every individual within the legal system to the same rules of evidence, the same burden of proof – the drug pusher, the murderer, the snatch thief, the sodomist and anyone else accused of a crime. I do not know whether Anwar committed the crime of which he stood accused, but in my mind the allegations were not proven “beyond a reasonable doubt.” That is the standard we set in a court of law, or else, anyone can be imprisoned purely on belief, speculation and conjecture.
The legal system is not judged on the hundreds and thousands of cases justly and fairly tried but on those occasions when it falters. It is okay to falter, provided we have the courage to pick ourselves up and put it right.
The great American judge Learned Hand said half a century ago in Central Park, New York: “Liberty … lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it. While it lies there, it needs no constitution, no law, no court to save it.”
Another great English judge, Lord Lester of Herne Hill, said: “It is so easy to destroy the ancient trees of liberty; so difficult to replace them once they have been cut down.”
Today, we have shown the world that liberty is alive and well in Malaysia. God bless Malaysia.
I AM AFRAID THESE SENTIMENTS ARE IN SERIOUS DANGER OF BECOMING OBSOLETE GIVEN THE CURRENT REVISITATION OF THE SAME INJUSTICE AGAINST ANWAR.
Just when I thought our country would undergo transformational change politically, it looks like its time to ‘wag the dog’ again! This morning Anwar Ibrahim is being charged with sodomy again. This is inspite of the fact that similar unsubstantiated charges filed 10 years ago against him were overturned by the Supreme Court of Malaysia.
The initial conviction itself was in my opinion unsafe by any juristic standard. Suffice to say no prosecution should be allowed to ammend a charge several times, especially when it relates to the time and place where offence is alleged to have taken place. To compound matters, the victim denied ever being sodomized.
Today many world leaders have expressed concern over the path our country has taken. For me, this is not as important as the fact that a majority of Malaysians feel Anwar has been framed.
THE RULE OF LAW
The prosecution will argue that regardless of the sentiments expressed by the public, the legal process is not about public opinion or popularity. The rule of law demands that everyone be subject to the law regardless of position or rank. As Thomas Fuller said more than 300 years ago, “Be you never so high, the law is above you.”
The idea of the rule of law is seriously contradicted by the idea that the Attorney General has an unfettered descretion on which cases to prosecute and which cases not to. It is important to understand that although the power may seem arbitrary, it is conditioned by public opinion, juristic and ethical considerations. Any AG who disregards these considerations is perpetrating tyranny and injustice.
All criminal prosecutions are brought in the public interest. Laws are made and enforced to uphold the public good and the criminal legal system is an integral part of that process. When the criminal justice system is hijacked to promote a political agenda – the system begins to decay. It loses its moral authority and people lose faith in the legal system.
This Government has shown a willingness to address decades of erosion of public confidence in the legal system by addressing the critical questions of (1) Judicial integrity and (2) corruption within the legal system. Now, after taking one step forward, we are about to take many steps backwards, regressing to the ‘Mahathirian Era’.
I fully concur with the views expressed by John Berthelsen from Asia Sentinel, who wrote,
“Mahathir Mohammad, the long-serving prime minister who quit in 2002, had a single ambition – to reach developed-nation status by 2020. But you cannot be a first-world country with a legal system whose main characteristics are shared by the likes of Zimbabwe , Burma and North Korea . Mahathir, of course, bears a major part of the blame for the legal system, starting from his destruction of the judiciary in the 1980s. But what is going on now, six years after he was succeeded by Abdullah Ahmad Badawi, is nothing more than the United Malays National Organisation’s manipulation of the system a la Robert Mugabe in Zimbabwe . This has nothing to do with ideology but with the dubious necessity of maintaining a political party in power.”
THE CASE AGAINST ANWAR – THUS FAR
The last time around, it was wafer thin. Let us examine whether things have improved this time around:
1. Alibi – derived from the latin language, it means to be somewhere else. A person who can prove he has an alibi proves that he was in another place when the alleged crime was committed. A valid alibi is an absolute defence, until someone invents a machine that allows a person to be at two places at the same time. Since Anwar has provided the police with an alibi, the first issue is to examine why they have rejected his alibi.
2. There are statements that Anwars semen was found on the victim’s underwear. This is very strong evidence, if true. But evidence of what? Evidence that there was some kind of sexual interaction ranging from masturbation to sexual intercourse. But sodomy would require proof of penetration – unnatural sex. Merely finding semen stains on underwear is not proof beyond a reasonable doubt of sexual intercourse. The fact that Anwar was imprisoned so many years and that the police already have his DNA samples, makes this type of forensic evidence quite unreliable and open to allegations of a ‘frame up’.
THE DECISION TO PROSECUTE
The decision whether or not to prosecute is very important. Great care must be taken in the interests of the victim, the suspected offender and the community at large to ensure that the right decision is made. A wrong decision will seriously undermine the confidence of the community in the criminal justice system.
An initial consideration is whether the evidence is sufficient to justify the institution or continuation of a prosecution. A prosecution should not be instituted unless there is admissible, substantial and reliable evidence that the oofence has been committed. When deciding whether the evidence is sufficient to justify the institution of a prosecution the existence of a bare prima facie case is not enough.
Once it is established that there is a prima facie case it is then necessary to give consideration to the prospects of conviction. A prosecution should not proceed if there is no reasonable prospect of a conviction being secured.
THE COURT OF PUBLIC OPINION
Public opinion is very important factor in any healthy democracy. The Court of public opinion helps society make a better judgements about their government and the shape of their civil society. Negative public opinion in any matter is usually a good barometer of what the Government needs to fix. The strength of public opinion in Anwar’s matter makes it clear that people are fed-up with this brand of below the belt politics and are eager for a more enlightened form of politics. Where we shoot the message and not the messenger. It is important for those in positions of power to respect and abide by public opinion. Public opinion exposes our ugly deeds and bring us to account, examine and see where we stand. Respect for public opinion is the very basis of civil society.
Public opinion could also incite some into acting disorderly in society. Disorderly in such a way that could be against the norms of society, simply because they seek the revelation of the truth. I could name some of these dissidents, Mahatma Ghandi, Nelson Mandela, Tunku Abdul Rahman. All of them stood against standing governments with a view to altering the status quo. In all, God has given every man his sound mind and conscience, to think and judge wisely. So, not all judgement is right. But extract the truth out of Public opinion and at least you will be on the path of democracy.
THE BROADER PICTURE – THE PENAL CODE
The offences related to this prosecution can be found in Section 377 of the Penal Code, as follows:
377A Carnal intercourse against the order of nature.
Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.
377B Committing carnal intercourse against the order of nature
Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.
377C Committing carnal intercourse against the order of nature without consent, etc
Whoever voluntarily commits carnal intercourse against the order of nature on another person without the consent, or against the will, of the other person, or by putting the other person in fear of death or hurt to the person or any other person, shall be punished with imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping.
377CA Sexual connection by object
Any person who has sexual connection with another person by the introduction of any object into the vagina or anus of the other person without the other person’s consent shall be punished with imprisonment for a term which may extend to twenty years and shall also be liable to whipping. [Exception: This section does not extend to where the introduction of any object into the vagina or anus of any person is carried out for medical or law enforcement purposes.]
377D Gross Indecency
Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years
A very good friend of mine, send me an email which proferred the following analysis which I fully concur with.
It would appear to me that by virtue of section 377B and 377D, the following would be TRUE:
(1) a husband can be jailed up to 20 years & liable to whipping if his wife performs oral sex on him. It is, however, not a crime if he performs oral sex on her.
(2) a husband can be jailed up to 20 years & liable to whipping if he has anal sex with his wife, even with her consent or blessing.
(3) a pair of consenting male homosexuals who willingly perform oral sex on, or have anal sex with, each other can both be jailed for up to 20 years and liable to whipping. It is, however, not a crime for a pair of consenting female homosexual to perform any sort of oral sex or anal sex.
By virtue of section 377D,
(1) a couple who willingly spice up their sex life in any aspect other than the ordinary missionary pose in their own bedroom could be deemed as commission of act of gross indecency and can be jailed for up to 2 years.
(2) anyone who owns/buys any sex toy could be charged for “attempts to procure the commission of act of gross indecency” with another person and can be jailed for up to 2 years.
There is no clear definition of gross indecency, even kissing in the public can be summoned to Court – there was a case few years back where a chinese couple was charged with gross indecency as they kissed in the KLCC garden.
It is time for serious law reform in the Penal Code, law’s like this ignore the social realities that are prevalent in our society. It ignores the right of individuals to regulate their own affairs without intervention in areas, where their behaviour is not harmful to others and is consensual. I fully accept that the boundary lines are difficult to draw but we must make a start somewhere if we are truly to become a developed society that is torelant and respectful of everyone. Let me share the sentiments of the Wolfenden Committee in England that recommended the decriminalization of certain types of private conduct,
“Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business. To say this is not to condone or encourage private immorality”.
The conduct which Anwar stands accused is practised by many people in our country UNLESS we are hypocritical enough to say there are no homosexuals or transvestites in Malaysia. Should they all be going to jail for six years.
The fundamental question is this, how does that affect an individuals ability to govern the country. I am not for one moment suggesting that Anwar is guilty of the offence for which he stands accused – all I am saying is that it is irrelevant.
If indeed Saiful was sodomized, what was the neccessity to meet with the DPM and all manner of people before acting on it. He should have just gone to a police station on the very day he was sodomized and made a report.
This much is clear – the report and the accusations were orchestrated to achieve the best political mileage posibble and to stop Anwar in his tracks.