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.

This is what happens when...

This is what happens when...

by James Chin, The Malaysian Insider

MARCH 4 — ... you have narrow-minded Fascists running the country. I don’t know about you but I am increasingly frustrated by the rise of fundamentalists, religious bigots and Fascists in this country.

While our neighbours — Indonesia, Singapore and Thailand — are becoming more progressive and moving forward, we seem to be stuck in Bolehland.

The cause is well-known, what we lack is political will to do something about it.

Politicians are afraid of being accused of being un-Islamic and they try to out-do each other to see who is more conservative and more narrow-minded.

Don’t believe me? Read the following from Bernama:

Malaysian teachers say ‘no’ to sex education

KUALA LUMPUR: Malaysian teachers are saying “no” to teaching sex education in schools. They lack professional training in teaching the subject, National Union of Teaching Profession (NUTP) secretary-general Lok Yim Pheng said Tuesday.

She said while the union fully supported the Government’s move to provide sex education in schools, “sadly, the teachers lack formal training in the complexity and sensitivity of the subject and are not confident to teach it.”

Lok said the teachers were afraid they might be sued by the parents “if they were to make mistakes in imparting the knowledge of sex to the pupils.”

Malaysia is a multiracial, religious and cultural nation with each ethnic group having its own notion on the subject, which makes teaching more challenging, she noted.

So no sex education please, we are Malaysians!

The end result, read this:

Oriental Daily reported that a youth had asked a salesgirl for help to buy condoms at a convenience shop.

The 17-year-old had gone to the counter and told the salesgirl he wanted to buy condoms at the shop in Kajang on Friday night.

When the salesgirl asked him the size, he dropped his pants and told her that was the size he wanted.

When the salesgirl screamed, the youth ran away. He was detained after the salesgirl lodged a police report.

Or this:

Tangled in web of sex myths

KUALA LUMPUR: Malaysian women demonstrated the depth of their ignorance by emerging the most ill-informed in a recent survey on sex-related issues conducted across Southeast Asia.

A majority of women in Malaysia believe, among other things, that sexual intercourse during menstruation cannot lead to pregnancy, wearing brassieres can cause breast cancer and that they can enlarge their breasts by touching them.

Some are confident that riding a bicycle will cause them to lose their virginity and that bleeding after sexual intercourse confirmed a woman’s virginity.

The Kotex BodyLife IQ survey was carried out among 1,800 women aged between 16 and 24 in Malaysia and other Southeast Asian countries. In Malaysia, the women surveyed were from a cross-section of all races.

In Malaysia, the survey results show:

- Only three per cent of women can answer all questions about their bodies;

- 60 per cent believe they can enlarge their breasts by touching them;

- 57 per cent do not know where their hymen is;

- 56 per cent believe having sex during menstruation cannot lead to pregnancy;

- 55 per cent believe that wearing brassieres can cause breast cancer;

- 41 per cent believe bleeding after sex confirmed a woman’s virginity;

- 24 per cent believe women can lose their virginity by riding a bicycle; and,

- 21 per cent think eating a lot will hasten their menstruation.

Since many young people cannot get proper information on sex, where do you think they turn to?

Read this:

75 pct Malaysians learn bedroom sex secrets from Internet

Kuala Lumpur, October 13 (ANI): As many as 75 per cent of Malaysians have Internet to thank for providing them information on sex, a new poll suggests. According to the Durex Sexual Wellbeing Survey, men were ahead when compared to women in using the World Wide Web to surf about bedroom passion.

Other sources included magazines with as many as seventy-three per cent of the respondents relying on them, reports The Star Online.

Sixty-five per cent turned to books, 56 per cent to friends and peers, and 43 per cent to their partners.

Sex education at school made up for only 36 per cent. (ANI)

Is it any wonder that all the Ah Beng selling DVDs has a ready market for porn DVDs? Is it any wonder that the number of teenage pregnancies are on the rise? A lot of social and political issues in this country are caused by religious Fascists who are trying to impose their worldview on the majority.

If we don’t stand up to these people, your children will inherit a Malaysia ruled by the Bolehland Taliban.

**James Chin is a Malaysian academic. The views expressed here are his own and do not reflect the views of institutions he is associated with.

The true Dato Sallehuddin Hashim (DSH)

The true Dato Sallehuddin Hashim (DSH)

By Yeop Kacak

Was he a corporate player as he has been trying to portray himself? Ask the shareholders of TMI (Turnaround Management Incorporated Sdn Bhd). They would not agree as he had saddled them with debts and empty promises and TMI is in bad shape. TMI should turnaround itself and its subsidiaries, Marang Resort and Furniture Village.

DSH had conveniently picked decent and certainly not the least gullible of characters from his ex-school so that he can manipulate and exploit their good nature and intentions to his maximum advantage. Mr. Amin Al Rashid (Class of 68), Mr. Abdullah Hamid. (class of 69) and Mr. Zaharuddin Alias (class of 70) and together with DSH are all shareholders of TMI. All have been cheated, abused, used and manipulated by DSH whom they described as an ‘evil genius’ and someone who used his intelligence in the most negative and destructive way.

He prides himself as a corporate player. The truth is he was never transparent and he will cheat at the slightest opportunity. He always boasts of his so-called success with Trenergy Berhad but he was only a front of a tycoon, who had initially recruited Mr. Zaharuddin Alias who then co-opted DSH who eventually cheated all the shareholders and the tycoon. DSH had not only lied to his partners that he was paid less than half of the RM40 million by the tycoon, but he (DSH) did not pay the shareholders their dues and had also left the company’s debts unsettled – that’s the corporate player that he brags.

DSH is a dangerous character because he says he is not scared of anyone. He said, “Why should I when I am not even scared of God”. He is not honest and anybody who crosses his path will learn that his vindictiveness is pathological. Worse, he is a gambler; he’s reported to have lost hundreds of thousands of dollars in Las Vegas. This explains, despite the millions from the Trenergy deal, he has been a pauper for years. That’s why he desperately needs the job in Selangor and was turned down by the Menteri Besar who knows him better.

He is a clown, an actor and an entertainer. The people in the party say that he is hot-tempered. This is news to his ex-classmates. None of his ex-classmates will say that he is hot-tempered. It was purely acting on his part. He was not sincerely fighting for the principles the party is fighting for. How can he be when he is rotten to the core?

His close friends from MCKK who knew him well never want to be involved in any business with him. They don’t even trust a ringgit of their money with him. His nickname is Chandran because out of a hundred words he said, they only believed less than ten which is a tragedy for such a brilliant man whose verbal talent is indeed extraordinary.

The best job for a brilliant man with a twisted and conniving mind and with a pathologic vindictive nature is a dirty job. He would be a very dangerous candidate for any normal job as the MB of Selangor had read correctly.

The most corrupt institution in the country

‘The most corrupt institution in the country’ — Martin Jalleh

MARCH 2 — Umno is rotten to the core; it is rotten from its lowest level to the highest.

The year 2009 began with the chairman of Umno’s disciplinary board, Tengku Ahmad Rithauddeen, proposing a radical (or desperate) solution to reduce rampant money politics in Umno — get rid of its Youth and Puteri wings! The Umno elite, Datuk Seri Najib Razak included, found the proposal ridiculous and rejected it.

Datuk Zaid Ibrahim advised Tengku Rithauddeen to retire and resign from the board since his efforts in reining in corruption in Umno had proven to be futile. Lim Kit Siang went one step further saying, as a result of Tengku Rithauddeen’s failure to weed out corruption, the whole of Umno should be uprooted altogether!

On Jan 30, 2009, a group of Umno Youth members protested against both Tengku Rithauddeen for his proposal and also the Malaysian Anti-Corruption Commission (MACC) for its intervention in “party matters”. It rattled Tengku Rithauddeen so much that he resignedly replied: “We will do our job; MACC will do theirs.”

In March, two Umno members threatened to apply for an injunction to postpone the Umno general assembly until all allegations of money politics were investigated. They highlighted their report on the misuse of power on the (then) PM and Deputy PM and the more than 1,000 reports of graft in Umno.

Nine days before the Umno elections, the disciplinary board barred Malacca Chief Minister Datuk Mohd Ali Rustam from contesting the post of party deputy president after three of his “agents” were allegedly found guilty of being involved in money politics in the run-up to the elections.

But Ali continued as an Umno member and CM. Even Tun Dr Mahathir Mohamad was stumped by this: “Isa was thrown out because he was involved in money politics… he also lost his position as a minister. But here we have a very strange decision. He was found to be corrupt but he can remain as the Chief Minister…”

Khairy Jamaluddin, who was a candidate for the post of Umno Youth head, was also found “guilty” by the board, but was only given a warning. He won the post and was heckled by an Umno mob who yelled “Khairy! Rasuah!” and “Penipu!” during his acceptance speech.

Another candidate for the post of Umno Youth head, Datuk Seri Mohamad Khir Toyo, was cleared by the board of all corruption charges. People expected Khir to be found clean, or Umno would be without an opposition leader in Selangor of his calibre and he would not look good in his new role as a “champion of good governance”!

Several MBs and CMs who lost in the party elections blamed it on money politics. They claimed that delegates seemed more drawn to the “distribution of gifts” than what they had done for their states. (Only one of the MBs and CMs succeeded in securing a place on the 25-seat supreme council.)

It was also time for Pak Lah to retire. As a parting shot to the party that ended his presidency/premiership prematurely he warned that “…materialism has seeped into the party, making a number of party members greedy and avaricious, hence creating the negative perception that Umno is a corrupt party”.

When setting up his new Umno supreme council Najib sought to be “inclusive” — he included the losers in the Umno elections and whose integrity had been questioned such as Tengku Adnan Mansor (of V.K. Lingam video clip fame), Ali (money politics) and Tan Sri Rafidah Aziz (approved permits)!

In April, Najib became the PM. Many agreed with the assessment of Tengku Aziz — a former chairman of Transparency International — of Najib’s People’s Cabinet, as a team “totally uninspiring (and) of recycled political expendables, many with personal records of integrity that will not bear close scrutiny.”

Indeed, Najib’s supposed strong resolve to start afresh with his new Cabinet was in reality a successful spin by his camp for about 80 per cent of those appointed ministers were spent characters, self-seeking sycophants with stained records, or what Dr M called “unsavoury characters”.

Umno’s anti-corruption charade continued in full force. In August, Umno fielded a disbarred lawyer in the Permatang Pasir by-election. It prompted Tengku Razaleigh Hamzah to ask: “Is Umno so short of people that we have to find a lawyer disbarred for financial dishonesty to stand?”

In October, Tan Sri Mohd Isa Abdul Samad became Umno’s candidate in the Bagan Pinang by-election. Najib’s nebulous defence of the decision was that “the offence committed by Isa was not an offence under the law”. The Chief Commissioner of the MACC had in January 2009 declared categorically that “money politics is corruption”!

The DAP’s Wong Ho Leng gives an accurate implication of Isa’s win: “Isa’s win would translate into an endorsement of corruption within Umno and the government that it leads. It lays bare the fact that Umno has no better leader to win a by-election than one who has been condemned by Umno itself to have been corrupt.”

PKR’s Azmin Ali sarcastic take on Isa’s victory was that Umno does not have to do any reform nor worry about money politics anymore. They can still win anyhow!

Consider columnist M. Bakri Musa’s invaluable insight: “To Umno folks, the party has replaced Allah as the source of bounty and benevolence… Corrupt leaders are forgiven not by Allah but by the party. Isa Samad had his political corruption sentence reduced, and then he was rewarded to be the party’s election candidate. Khairy had his ‘money politics’ conviction essentially pardoned, and then blessed by being head of Umno Youth”!

The year ended with Dr M quoting in his blog a former senior Umno leader’s lamentation: “Umno is rotten to the core. It is rotten from its lowest level to the highest. What’s left are remnants of people with self-interest who still hope of being rewarded for supporting Umno. They are not nationalists and cannot be trusted.” According to Dr M, this leader intended to jump ship to PAS! — aliran

* Martin Jalleh is a well known political commentator and writer.

* This article is the personal opinion of the writer or publication. The Malaysian Insider does not endorse the view unless specified.