The Politics of Myopia 2 (Continuation)

Equality

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.

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I WROTE THIS ON THE 4TH OF SEPTEMBER 2004 – THE STAR ONLINE

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.

Back to Square One – Revisiting Squalor

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.

DROP IT

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.

Our Social Contract Crossroad

The most important issue confronting our nation today is what is our ‘social contract’? A social contract may loosely be defined as an agreement forged between the state and the individuals that constitute that state. The term social contract describes a broad class of philosophical theories whose subjects are the implied agreements by which people form nations and maintain a social order. This means that the people give up some rights to a government in order to receive social order.

As Jean Jacques Rousseau famously wrote in The Social Contract,

“Man is born free, but everywhere he is in chains.”

The liberal view is that governments are constituted among men to safeguard their liberties and not to oppress them. The need to preserve social order therefore should not be used as an excuse to usurp and diminish the freedoms of the individual. The social contract should be designed to set us free within the framework of order, peace and harmony. Malaysia is a multi-racial and multi-ideological state. Our political system has evolved from a fairly stable autocratic substantially one party coalition system to a two party coalition.

There have been many interesting versions of what exactly constitutes the Malaysian social contract. I am of the view that a social contract to be relevant and useful must be an evolving and dynamic thing. It makes little sense to talk of what the founding fathers intended if such intentions have since been reshaped by the actual history of our nation.

Our political system is a legacy from our colonial masters – the parliamentary system of government. This is the system adopted by most commonwealth countries and it is a system that whilst creating stable governments – is susceptible to great abuse. Largely because there isn’t any Separation of Powers between the legislature and the executive. This can be compounded further by a pliant and controlled judiciary. Sounds a familiar story?

To put it candidly, this means without an effective opposition, the government of the day can basically do whatever it likes.

Today, we are at the crossroads of creating a better political system – a system where there is a working opposition and a government subject to accountability. However, I am not convinced that the players are fully aware of this political opportunity. The moment has succumbed to political opportunism.

We had a largely free and fair election, leading to the presence of a strong opposition in parliament and 5 states in opposition control. Two things flow from this – 1. The Barisan Nasional has an opportunity to act as a responsible opposition within these five states and understand the need for a strong opposition within a parliamentary system of government where there is no Separation of Powers between the executive and the legislature. In most instances parliament acts to rubber stamp decisions made by the executive. 2. The opposition has the opportunity to do the same. Create a positive force for change and accountability on the issues that matter and impact peoples’ lives daily.

What in fact has happened is – 1. The Barisan Nasional’s immediate response is that of being a sore loser. Many place the blame with Abdullah Badawi and see his removal from office as the solution. There is very little emphasis on the ideological changes that are required to make Barisan Nasional relevant again.

What we see is lip service to important ideological and institutional changes that are fundamental to Barisan Nasional’s long term relevance. Shooting the messenger rather than the message seems to be the preferred response. 2. The opposition on the other hand appears to want to press home whatever advantage they have quickly rather than by developing credibility by showing their capabilities. This whole issue of getting MPs to cross over is a short term political game where there can be no winners in the long term. Why Anwar wants to form a government in the near future is anyone’s guess but I would have preferred that he showed some respect for the peoples’ mandate. His mandate is to form an effective opposition. Any government formed by MPs crossing over is a fraud on the people. If I were the PM, I would dissolve parliament if that were to occur and call for fresh elections. Is such turmoil in the best interests of the country? Given our present economic woes, I should think not. It is a time for all parties to stop playing politics and address the broader issues of nationhood and good governance.

Several issues need to be addressed with urgency:

1. The succession issue within UMNO, should be dealt with by UMNO. My only advise is recognize the following:

• Abdullah Badawi has given this nation a new birth of freedom by allowing free and fair elections.
• He has freed Anwar during his watch.
• He has given people the opportunity to voice their dissent without stifling the media.
• He has promoted greater transparency and accountability within the government. Some say not enough – but we have to start somewhere and he has provided the start.
• He has allowed and encouraged much needed reform within the judiciary.

2. Najib’s wife has been accused of complicity in the Altantuya murder. She should be allowed the same latitude as any accused person. The presumption of innocence should apply equally to her and the AG should be convinced there is sufficient evidence before charging her. An accusation in itself, regardless of whether it is by way of statutory declaration or not, is insufficient. Same standards should be applied to Raja Petra. His allegations have to be thoroughly investigated given the gravity of the accusations.

3. Same standards should apply to Anwar in relation to the sodomy accusation against him. The police should examine carefully the complaint and objectively determine the prima facie truth of it, having regard to any statement and alibi provided to Anwar before calling for DNA evidence.

4. Those Hindraf leaders under detention should be freed immediately, as a sign of respect to the Malaysian Indian community and in recognition that many of the views expressed were legitimate. This was certainly the view reflected by the majority of the Malaysian Indian community in the recent elections. Whilst I fully condone the Home Minister’s position that law and order should be respected, sometimes peaceful civil disobedience is the time tested solution to correct many social injustices. Certainly this is the path chosen by our founding fathers and great social architects like Mahatma Gandhi, Martin Luther King and Nelson Mandela.

5. A law prohibiting party hopping should not be enacted. This is undemocratic and interferes with a person’s freedom of association. People should be free to join any political party if they have a change in ideology or beliefs. However, the should be a law requiring an Member of Parliament or State Assemblyman who hops to another party to vacate his seat. This is because his mandate is voided when he switches parties.

6. The constitutional guarantee of the freedom of religion and worship should be reinforced with clear legislative guidelines on the jurisdiction of Syariah law. Whilst recognizing the social fact that the majority of Malaysians are Muslims and therefore the need to recognize Islam as the official religion, it is nonetheless imperative that a secular constitution is upheld as an integral part of the Malaysian social contract ensuring peace, prosperity and harmony.

The Barisan Nasional Government has over the years defended this ‘social contract’ even though there have been times when overzealous politicians from within UMNO have pushed for a change in the status quo and a move towards the creation of an Islamic state. PAS on the other hand is a political party astutely committed to changing and redefining this social contract. They have steadfastly promoted the ideal of an Islamic state and have indicated that if and when they are voted into power they will amend the Constitution and introduce an Islamic state. The Pakatan Rakyat in this context faces a serious ideological divide, DAP and PKR are ideologically committed to a secular Constitution, whilst PAS has a divergent position.

We have a nation that is progressive, cultured and prosperous. We now have to create institutions that can protect individuals regardless of their political beliefs. We have to take a no nonsense stand against abuse of power and corruption to ensure a great future for all Malaysians. Let us make Vision 2020 – A vision of a progressive nation that is developed in every sense – not a nation that has a first world infrastructure but a third world mentality.

Let me conclude by sharing another quote from Jean Jacques Rousseau,

“As soon as any man says of the affairs of the State “What does it matter to me?” the State may be given up for lost.“