The courts' 'Yg Arif' might say, "Potato Chips, of course!!"

Some months ago, my learned friends, Fahri Azzat and Amer Hamzah appeared in the Court of Appeal to argue an appeal. They were representing a man who was found guilty of sodomising a boy. He was sentenced to 60 years of imprisonment and 22 stroke of caning although he maintained that the sodomy acts were consensual.

During the appeal, the two lawyers brought up constitutional issues which have never ever been brought up before. As these issues were never brought up before, it follows that there has never been any judicial pronouncement on those constitutional issues. Those issues are:

• the law provision which makes the act of sodomy is unconstitutional as it transgresses the right to privacy, which is a part of our fundamental liberties;
• the act of criminalising and penalising the act of sodomy, when it is consensual, amounts to an act of discrimination and inequality, especially against men with homosexual tendency. As discrimination on the basis of, among others, gender, is prohibited by the Constitution, it follows that the criminalisation of consensual sodomy is unconstitutional;
• the caning sentence is also discriminatory in nature as under the law women cannot be caned.

Now, I am not going to touch on whether the arguments were correct or not. But these arguments were taken up for the very first time in our legal history. Furthermore, they were taken up in the second highest Court of the land, namely, the Court of Appeal.

It goes without saying that the Court of Appeal should have seen it fit to hear the arguments in totality. Then it should consider the arguments in depth. Then it should decide on the arguments. After that, it should write a proper and well reasoned grounds for its judgments so that the people know what it was thinking and how it came to such thinking.

That decision would have been one of the most important decision in our Constitutional law. It will serve as a precedent and as a guideline to all of us Malaysians, to the police, the AG Chambers, to legal practitioners, law lecturers and law students alike.

Guess what happened? Fahri was cut short in the middle of his constitutional issues/points. The learned Judge asked him to stop arguing midway through his arguments. He was asked to go to the next point. After hearing the both of them, the Court of Appeal dismissed their case there and then.

Quite obviously, the Court of Appeal did not think much of the various constitutional issues - which touched on the people's constitutional rights - which were raised for the first time.

It was reported that one of the learned Judge said, "are you saying that (homosexuality) among consenting adults is legal? In other words, what happens in the bedroom is none of the government’s business?" during the hearing.

Needless to say, no written judgment was given until the time I am writing this (5th March 2010).

As that particular criminal matter originates from our Sessions Court, no further appeal to the Federal Court could be made.

In my opinion, the failure to give a reasoned judgment in a matter involving such important constitutional issues is a loss opportunity. It reflects a nonchalant attitude towards every argument which is deemed "new" or "unconventional" by the Court.

We are therefore stuck in conservatism and the law - which is supposed to develop as time passes by in order to reflect a currency of approach - lies stagnant within the robes and wigs that Judges wear.

On the other hand, the Court of Appeal in the UK sat to hear a question on whether the snack product Pringles is similar to a crisp and made from the potato and therefore subject to standard-rate VAT.

After a long and laborious arguments, the UK Court of Appeal considered what was branded as an "Aristotelian question" and came up with a judicial pronouncement which is not only well reasoned but also a delight to read.

The learned Judges thought that "the issue of classification should not be given an “over-elaborate, almost mind-numbing legal analysis”. The report on that case went on to say:

Lord Justice Mummery, agreeing, noted the “urbane” submissions of Cordara (the Queen Counsel representing Pringles), which referred to “the potato as a fiscal contaminant” and drew attention to the “essential characteristics of the paradigm potato crisp”. The judge rejected the argument that Pringles also have 33 per cent fat, and if a product has a number of significant ingredients it cannot be said to be “made from” one of them. Lord Justice Mummery pointed out that “most children, if asked whether jellies with raspberries in them were ‘made from' jelly, would have the good sense to say ‘Yes', despite the raspberries”.

The report on that potato chips case can be found here.

And so there we have it.

In Malaysia, questions on the constitutionality of the criminalisation of homosexuality and the punishment of caning are just brushed aside without any known reason.

But in the UK, the Court of Appeal had sat to hear "Aristotelean question' on what constitutes potato chips and came up with a written and well reasoned judgment on that question.

Sodomy, caning and potato chips. Which one is more important?

Abdul Gani’s decision not to press charges against Al-Islam reporters without extracting public apology indefensible and dangerous precedent inimical to 1Malaysia concept

Abdul Gani’s decision not to press charges against Al-Islam reporters without extracting public apology indefensible and dangerous precedent inimical to 1Malaysia concept

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Statement by Tengku Razaleigh Hamzah

Statement by Tengku Razaleigh Hamzah

I think Umno should apply this gag order properly and, from today onwards, also stop altogether talking about Allaryaham Tun Razak (Hussein). Umno Baru would consider him a traitor.

For it was he who ordered me to design the Petroleum Development Act in such a way that the Malay heartland states of Kelantan, Terengganu, Johor and especially his beloved Pahang, would benefit directly from offshore oil beyond three nautical miles through the mechanism of 5 per cent cash payments made directly to the state consolidated fund. What a troublemaker he was.

It is this same payment, that Umno Baru insists, through every government channel, that Kelantan and Terengganu have no right to receive, on the grounds that the oil is found beyond 3 nautical miles offshore.

Naively, Tun Razak did not forsee that Umno Baru would have better uses for this money than the impoverished Malay folk of the East Coast.

More than RM20 billion has been paid out in Terengganu’s name over the years, yet the people of Terengganu remain impoverished because the money has not gone to them.

They are expected to console themselves watching millionaires frolic in yachts and admiring a crystal mosque they cannot pray in.

We should also put a gag order on speaking about the late Hussein Onn. He, at least, was a man of principle, and an absolute enemy of corruption and the abuse of power. He was such a threat to Umno Baru that he, like the late Tunku Abdul Rahman, was shut out from it, and died outside the party.

Tengku Razaleigh Hamzah
Member of Parliament, Gua Musang

The Contemporary Malay Dilemma

The Contemporary Malay Dilemma
By faroukaperu

I read Tun M’s ‘Malay Dilemma’ in secondary school and didn’t think much of it then (I suppose I was too immature). I then read, about 10 years later, Bakri Musa’s ‘The Malay Dilemma Revisited’. Bakri’s scathing critique of the government’s policies and race and the negative aspects of Malay culture stays with me till now. Now, about 9 years after reading Bakri, another favourite Malay thinker of mine, Azly Rahman’s opined about the Malay Dilemma in his blog yesterday.

Azly, in his ‘The Newest Malay Dilemma’, believes that the real malay dilemma is about mind control. How we’ve been sold a bill of goods about slogans and visions all designed to blur us while we’re still being exploited by robber barons and emerging dynasties. I concur with this but wish to add, if I may, my two cents.

To me, Tun M, Bakri and Azly have put forward good points in their works but if you ask me, what is the Malay dilemma, I would have to say our dilemma is our positions on race and religion. We have effectively become the most bigoted people in the world, even daring to ban others from using words to express their faith.

Why are race and religion a dilemma at all? They don’t have to be but they are for the very simple reason of politics. In our political expressions, the Malays are limited to the racialist UMNO and the religious fundamentalists PAS or the ill-fated PKR (who are still full of UMNO and PAS types as well). Our politics is never about policy. It’s about identity. We constantly flex our imagined political muscle to the non-Malays and non-Muslims because our politicians tell us to do so. In the meantime, outrageous amounts of money flow into certain pockets while many Malays are still mired in poverty. Yet when it comes to ‘hak orang Melayu’ or ‘mempertahankan Islam’, we still see Malays dutifully doing their bit for these reprobates.

Truly, we are puppets in their dastardly scheme.

What do we need to do to get over this dilemma?One solution I would say is phrased in a word, PRIVATISATION. While the word seems to have a different connotation than the usual privatisation of the utility agencies for example, the effect remains the same. Rather than the government styling itself as they protectors of race and religion, we need to have a government that is completely neutral in such matters. All at once, we will render race and religion ‘organic’ in the sense that proponents of such ideologies would understand the realities of economics and rethink their activities. Even racists and religious fundamentalists need to buy stuff and they’re not paid for things like BTN or religious classes, we’ll see how many volunteer.

Secondly, we need to make it obligatory for any political party to adopt a policy of non-discrimination for membership. This is what I call the Onn Jaafar effect. Onn Jaafar wanted to open UMNO membership to non-Malays but was overturned and forced to leave. It does seem unimaginable but once this happens, we will find a sweeping political and religious reform overtake the nation. Those people who rely on cheap racist and religiously bigoted slogans would be simply neutralised.

Thirdly, we need to have language and religious education that understands the realities of Malaysia. All Malays should learn English, Mandarin and Tamil up to at least conversational level. Besides that we need to take classes about other religions than Islam. We need to understand that other people value their respective faiths too and our bigotry tends to overlook that.

Lastly and I think most importantly, we need to implement philosophy as an actual subject in secondary schools. Philosophy equips us with the thinking tools we need to see through the puppetry of our politicians. Moreover, it gives us the ability to constantly grow as individuals who can negotiate their way through any reality which confronts them.

The dilemma of the Malay to me is this crippling position we have on race and religion. We still cling to this Ketuanan myth and live the Hobbesian fear of ideological attacks at every turn. In truth, we are potentially rational beings as any Malaysian or human being. We simply need to leave these myths behind and embrace the truth about ourselves.