Free Port
There is now talk of restoring Penang's Free Port. Its abolition was one of the irrational and irresponsible acts of Tunku Abdul Rahman, accompanied by a silly statement that the free port benefited only the Chinese. Result: the ten ships seen in the harbour each day sailed off to Singapore (who should remember this and build a monument to him)
Saturday, May 19, 2012
Friday, May 11, 2012
Image
When the authoritarian controllers of the university don't like a student activity they label it as an act "tarnishing the image of University Malaya" They should instead have condemned attacks on students with tear gas and water cannon as barbarities spoiling the "image" of the country, where the police state continues its brutal suppression of liberty and helps define 1Malaysia as a 1Police State.
To those who mourn the death of mamak mee, cheer up! A new stall has come into a Tanjong Tokong hawker centre which fries a good version of the stuff. It's not up to the class of the Northam Road stall but nevertheless it's better than what we have been offered these past few years.
When the authoritarian controllers of the university don't like a student activity they label it as an act "tarnishing the image of University Malaya" They should instead have condemned attacks on students with tear gas and water cannon as barbarities spoiling the "image" of the country, where the police state continues its brutal suppression of liberty and helps define 1Malaysia as a 1Police State.
To those who mourn the death of mamak mee, cheer up! A new stall has come into a Tanjong Tokong hawker centre which fries a good version of the stuff. It's not up to the class of the Northam Road stall but nevertheless it's better than what we have been offered these past few years.
Saturday, April 14, 2012
Dignity
“A stiff custodial sentence will redeem the dignity of the Federal Court,” so said that judges who had a shoe thrown at them. This something new and like all revolutionary concepts it came from wonderfully inventive Malaysia. So now beware, there is a new law, though not from Parliament; so keep in mind the “dignity” of the court, a dangerous area because it has not been defined by the Penal Code.
But can we blame the judges for talking like policeman rather than judges? Ever since Dr Mahathir removed their judicial power they have been reduced to mere arms of the government.
It is good to be reminded of some of what the hopeful Raja Aziz Addruse and Logan Sabapathy said in 2008 about Dr Mahathir’s destruction of Article 121 of the Constitution..
I
“... the tacit concession by Government that wrong had in fact been done in 1988, significant reforms could be achieved to great effect.
”A query however arises as to what it is that we aim to achieve. Though there is universal acceptance of the need for reform, there seems to be no consensus about the ultimate objective of any such endeavour. Though a â˜more competent or â seemingly less corrupt or â ˜more efficient judiciary are all satisfactory aims in themselves, we must keep in mind that as aspirations they are ambiguous. The exercise requires the kind of strict benchmarking that would allow us to establish a Judiciary that inspires confidence both nationally and internationally. We should also not be distracted from the fact that the difficulties we face go beyond the Judiciary into the wider system of the administration of justice.
“It would thus appear that for any meaningful progress in this regard, we must first determine the objective of reform, having regard to the standards that we wish to achieve. As we see it, any undertaking would only be of value to the nation if its ultimate aim were to be the establishing of a framework that would once again allow for the Rule of Law. By this we mean a system in which everyone is made safe from arbitrary governance by subjecting all persons to the law.
Though some might argue that the Rule of Law is in place, pointing to the existence of laws and institutions that constitute the wider system of the administration of justice, an honest and objective assessment would make it patently clear that this is no longer the case. Serious doubts have been cast over the competence and integrity of the key institutions. No less significant is the very low level of public confidence in the system as a whole, such confidence being a necessary prerequisite to its effectiveness. We are in the midst of a serious crisis of confidence such that decisions of the courts and the authorities, be they the police or the Attorney General, are doubted virtually as a matter of course. It is regrettable that the current state of affairs in this country is such that many now believe that governance is arbitrary.
“In view of this, an intention to address those factors that have led to the belief that governance is arbitrary for there being no effective Rule of Law must be central to any campaign for reform. This in turn brings into relief the need to build a consensus as to the level of influence the Executive should be permitted to have, if at all. The Government’s apparent reluctance to dilute its involvement in the appointment of judges despite having very publicly endorsed the need for an independent judicial appointments commission points to a continued desire on the part of those who form the Government that the Executive should be allowed to shape due process. Mirroring attitudes of the Executive arms of governments in other jurisdictions, our Executive’s desire for influence must not be dismissed as being idiosyncratic to merely those who make up the incumbent Government.
“It also becomes apparent that the reform initiative must be approached on at least two equally important levels; the legal framework and human resource.
“The former is crucial in ensuring that the fundamentals of the system are strong. This can be seen in the impact that the controversial amendment of Article 121(1) of the Federal Constitution in 1988 has had. The amendment did immeasurable damage. Not only did it affect the psyche of judges, already battered by the attack on the Judiciary, it set the foundation for a reshaped perspective on the role the Judiciary was to play in promoting the Rule of Law. In its 2007 decision in PP v Kok Wah Kuan, the Federal Court in effect held that the doctrine of separation of powers was not relevant to constitutional law in this country. In a previous decision handed down in 2002, Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan , the Court had for all purposes and intents concluded that it was Parliament that was supreme and not the Constitution. These decisions, and others of a similar nature, have in many ways lent to the arbitrariness we have seen these past two decades. ..”
But can we blame the judges for talking like policeman rather than judges? Ever since Dr Mahathir removed their judicial power they have been reduced to mere arms of the government.
It is good to be reminded of some of what the hopeful Raja Aziz Addruse and Logan Sabapathy said in 2008 about Dr Mahathir’s destruction of Article 121 of the Constitution..
I
“... the tacit concession by Government that wrong had in fact been done in 1988, significant reforms could be achieved to great effect.
”A query however arises as to what it is that we aim to achieve. Though there is universal acceptance of the need for reform, there seems to be no consensus about the ultimate objective of any such endeavour. Though a â˜more competent or â seemingly less corrupt or â ˜more efficient judiciary are all satisfactory aims in themselves, we must keep in mind that as aspirations they are ambiguous. The exercise requires the kind of strict benchmarking that would allow us to establish a Judiciary that inspires confidence both nationally and internationally. We should also not be distracted from the fact that the difficulties we face go beyond the Judiciary into the wider system of the administration of justice.
“It would thus appear that for any meaningful progress in this regard, we must first determine the objective of reform, having regard to the standards that we wish to achieve. As we see it, any undertaking would only be of value to the nation if its ultimate aim were to be the establishing of a framework that would once again allow for the Rule of Law. By this we mean a system in which everyone is made safe from arbitrary governance by subjecting all persons to the law.
Though some might argue that the Rule of Law is in place, pointing to the existence of laws and institutions that constitute the wider system of the administration of justice, an honest and objective assessment would make it patently clear that this is no longer the case. Serious doubts have been cast over the competence and integrity of the key institutions. No less significant is the very low level of public confidence in the system as a whole, such confidence being a necessary prerequisite to its effectiveness. We are in the midst of a serious crisis of confidence such that decisions of the courts and the authorities, be they the police or the Attorney General, are doubted virtually as a matter of course. It is regrettable that the current state of affairs in this country is such that many now believe that governance is arbitrary.
“In view of this, an intention to address those factors that have led to the belief that governance is arbitrary for there being no effective Rule of Law must be central to any campaign for reform. This in turn brings into relief the need to build a consensus as to the level of influence the Executive should be permitted to have, if at all. The Government’s apparent reluctance to dilute its involvement in the appointment of judges despite having very publicly endorsed the need for an independent judicial appointments commission points to a continued desire on the part of those who form the Government that the Executive should be allowed to shape due process. Mirroring attitudes of the Executive arms of governments in other jurisdictions, our Executive’s desire for influence must not be dismissed as being idiosyncratic to merely those who make up the incumbent Government.
“It also becomes apparent that the reform initiative must be approached on at least two equally important levels; the legal framework and human resource.
“The former is crucial in ensuring that the fundamentals of the system are strong. This can be seen in the impact that the controversial amendment of Article 121(1) of the Federal Constitution in 1988 has had. The amendment did immeasurable damage. Not only did it affect the psyche of judges, already battered by the attack on the Judiciary, it set the foundation for a reshaped perspective on the role the Judiciary was to play in promoting the Rule of Law. In its 2007 decision in PP v Kok Wah Kuan, the Federal Court in effect held that the doctrine of separation of powers was not relevant to constitutional law in this country. In a previous decision handed down in 2002, Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan , the Court had for all purposes and intents concluded that it was Parliament that was supreme and not the Constitution. These decisions, and others of a similar nature, have in many ways lent to the arbitrariness we have seen these past two decades. ..”
Saturday, March 31, 2012
Hanging
31 March 2012
The Death Penalty
The speech by Steven Thiru, treasurer of the Malaysian Bar, at the Public Seminar on the Abolition of the Death Penalty in Malaysia at the KL Convention Centre is significant as it marks a change in the attitude of the Bar.
We have, for a considerable time, advocated the abolition of the death penalty. We hold to the belief that life is sacred and every individual has an inherent right to life, which is enshrined in Article 5(1) of our Federal Constitution. We take the view that the right to life is a fundamental right which must be absolute, inalienable and universal, irrespective of the crime committed by the accused person.
There is no empirical proof or data that irrefutably establishes that having the death penalty is effective (as compared to other forms of punishment) in deterring heinous and serious crimes. The retentionist credo that the death penalty deters crime is unsupported by compelling research. The retentionists nevertheless continue to call for the imposition of the death penalty, especially in relation to murder, rape and incest. However, the reality is that the death penalty would have dire repercussions on the efforts to prosecute and prevent the incidence of these crimes and the protection of rape survivors, and also the reduction of victimisation of the survivors under the legal process. For example, as the prosecution of rapists depends on the existence of a complaint by a rape survivor, the death penalty may discourage rape survivors from reporting the matter, especially if the perpetrator is a family member.
Moreover, drug-related offences and addiction have been on the rise in Malaysia since the 1983 amendment to the Dangerous Drugs Act 1952, which imposed the mandatory death penalty. This weakens the case for the death penalty, because more than half of the known outstanding death sentences are for drug offences (479 out of the 696 inmates on death row as of 22 February this year), followed by murder (204) and illegal possession of firearms (13). [Shaun Ho/The Star, June 28, 2011] The mandatory death penalty has obviously not had the desired effect intended by Parliament.
The vast majority of arrests for drug trafficking are that of non-violent and low-ranking “little fish” in the drug market. The most recent report of the Global Commission on Drug Policy observes that these “little fish” “…are most visible and easy to catch, and do not have the means to pay their way out of trouble. (They cannot afford bribes or bail, for example.) The result is that governments are filling prisons with minor offenders…and with no impact on the scale or profitability of the market.”
These “minor offenders” are usually poor, young, desperate and/or very impressionable. This is well illustrated by the much-publicised case of Yong Vui Kong who is on death row in Singapore after being arrested and convicted for being in possession of 47.26 grams of diamorphine when he was just 18. He represents one of the many thousands of small fish (in an elaborate international or domestic web) that are caught by governments every year and a victim of the growing drug mule recruitment drives in Southeast Asia and East Asia. [As stated by the International Narcotic Control Board (INCB)]
Further, both in Singapore as well as in Malaysia, there is a legal presumption that the accused who is in possession of drugs in excess of the proscribed weight limit is guilty of trafficking, and that the accused is deemed to know what he/she is carrying. The burden of proof is therefore on the accused to prove his innocence. This is a reversal of the universal legal standard of the prosecution bearing the burden, which is described in the famous case of Woolmington v DPP as the golden thread in all criminal cases. Thus, it follows that once a person is convicted for possession, the judge is compelled to hand down the death sentence.
No legal system in the world is fail-proof or error-free. Despite the best efforts of all those involved in the judicial and legal system, errors still abound due to human frailty. Groups such as the Innocence Project in the USA work to bring about post-conviction DNA exonerations, and to date 273 people in the United States have been exonerated by DNA testing, including 16 who served time on death row. In Malaysia, some of us will still recall the famous 1970s case of Karthigesu, who was wrongly convicted for murder and later acquitted. Needless to say, the opportunity to right a wrong will not be available if the death sentence had been meted out. Then, we as a society are collectively responsible for having sent an innocent man or woman to their death. It will be cold comfort to the deceased person’s loved ones for us to hold that the system is not free from error and that every now and then, there are those who fall in between the stools! The burden of imposing a sentence of death is therefore great and leaves no margin for natural human error.
The execution of human beings by the State is seen as an “example of barbarity” and legitimises the taking of human life. Geoffrey Robertson QC in his book “The Justice Game” observed: “The court approved death penalty is wrong. And a system which is committed to the righting of wrongs cannot be used to perpetuate it.” [at p. 103 (Chatto & Windus, London 1998)] Today, in all Commonwealth countries, except Malaysia and Singapore, the mandatory death penalty has been declared to be a “cruel and unusual punishment.” The US Supreme Court in the 1972 case of Furman v Georgia [408 US 238 (1972)] remarked that “Death sentences are cruel and unusual in the same way that being struck by lighting is cruel and unusual”. It is also now quite clear that there is a trend worldwide to abolish the death penalty. It is perhaps best exemplified by the admission made by Justice Blackmun, who was once a strong proponent of the death penalty, in the 1994 US Supreme Court case of Callins v Collins [510 US 1141]: “From this day forward, I no longer shall tinker with the machinery of death … I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.”
The Global Overview on the Death Penalty for Drug Offences 2010, conducted by International Harm Reduction Association, found that there remains 32 states that provide for the death penalty for drug-related offences. Out of these 32, 13 have the mandatory death penalty. Malaysia is one of them.
In the course of the ongoing “Save Yong Vui Kong” campaign, Malaysia’s de facto Law Minister, Dato’ Seri Mohd Nazri Abdul Aziz, said that it was time for Malaysia to abolish the death penalty. At the same time, he did add that our country lacked the political will to change things. Perhaps it is time to generate that political will and fibre amongst our politicians. In this regard, the Malaysian Bar is pleased to note the creation of a cross-party caucus in Parliament that seeks to promote support for the abolition of the death penalty, and its decision on 27 June 2011 to move a resolution in Parliament to end the mandatory death penalty for drug-related offences. Where there is political will, there is a way.
The death penalty has no place in any society that values human rights predicated on the rule of law, justice and mercy. In the wake of the collapse of the apartheid regime in South Africa, Justice Ishmael Mahomed, the former Chief Justice of Constitutional Court said, “Death is different. The dignity of all of us, in a caring civilization, must not be compromised by the act of repeating, systematically and deliberately, albeit for a wholly different objective, what we find to be so repugnant in the conduct of the offender in the first place.” [The State v Makwanyane & Mchunur HRLJ 16 [1995] p. 195]
UCCA
The decision of the court of appeal that the University and University Colleges Act was unconstitutional was welcome indeed. Mr Justice Hishamudin quoted Justice Brandeis of the US Supreme Court: “... The greatest menace to freedom is an inert people; that public discussion is a political duty...”
THE IGP
says the rights groups are a threat to social norms; this human rights waves is a threat. Those promoting civil liberties were promoting a new religion. IGP forgets that he is not a colonial IGP but a civil servant and that the people are his boss.
THE “BLUE MANSION”
is now listed as one of the world’s top ten buildings. If that is so the first thing they must do is to get rid of the 1920's Italian floor tiles and restore the terracotta.
MAT REMPITS
Datuk Jasmin Mohamed an assemblyman has criticised the state government for not having provided recreational facilities for the young. He should have suggested that the Turf Club sets up a track running alongside the race course for the motor cycles to run on non race week-ends.
AN AFGHAN’S WORTH
RM150,000. That’s the US compensation for an Afghan killed by a US soldier
The Death Penalty
The speech by Steven Thiru, treasurer of the Malaysian Bar, at the Public Seminar on the Abolition of the Death Penalty in Malaysia at the KL Convention Centre is significant as it marks a change in the attitude of the Bar.
We have, for a considerable time, advocated the abolition of the death penalty. We hold to the belief that life is sacred and every individual has an inherent right to life, which is enshrined in Article 5(1) of our Federal Constitution. We take the view that the right to life is a fundamental right which must be absolute, inalienable and universal, irrespective of the crime committed by the accused person.
There is no empirical proof or data that irrefutably establishes that having the death penalty is effective (as compared to other forms of punishment) in deterring heinous and serious crimes. The retentionist credo that the death penalty deters crime is unsupported by compelling research. The retentionists nevertheless continue to call for the imposition of the death penalty, especially in relation to murder, rape and incest. However, the reality is that the death penalty would have dire repercussions on the efforts to prosecute and prevent the incidence of these crimes and the protection of rape survivors, and also the reduction of victimisation of the survivors under the legal process. For example, as the prosecution of rapists depends on the existence of a complaint by a rape survivor, the death penalty may discourage rape survivors from reporting the matter, especially if the perpetrator is a family member.
Moreover, drug-related offences and addiction have been on the rise in Malaysia since the 1983 amendment to the Dangerous Drugs Act 1952, which imposed the mandatory death penalty. This weakens the case for the death penalty, because more than half of the known outstanding death sentences are for drug offences (479 out of the 696 inmates on death row as of 22 February this year), followed by murder (204) and illegal possession of firearms (13). [Shaun Ho/The Star, June 28, 2011] The mandatory death penalty has obviously not had the desired effect intended by Parliament.
The vast majority of arrests for drug trafficking are that of non-violent and low-ranking “little fish” in the drug market. The most recent report of the Global Commission on Drug Policy observes that these “little fish” “…are most visible and easy to catch, and do not have the means to pay their way out of trouble. (They cannot afford bribes or bail, for example.) The result is that governments are filling prisons with minor offenders…and with no impact on the scale or profitability of the market.”
These “minor offenders” are usually poor, young, desperate and/or very impressionable. This is well illustrated by the much-publicised case of Yong Vui Kong who is on death row in Singapore after being arrested and convicted for being in possession of 47.26 grams of diamorphine when he was just 18. He represents one of the many thousands of small fish (in an elaborate international or domestic web) that are caught by governments every year and a victim of the growing drug mule recruitment drives in Southeast Asia and East Asia. [As stated by the International Narcotic Control Board (INCB)]
Further, both in Singapore as well as in Malaysia, there is a legal presumption that the accused who is in possession of drugs in excess of the proscribed weight limit is guilty of trafficking, and that the accused is deemed to know what he/she is carrying. The burden of proof is therefore on the accused to prove his innocence. This is a reversal of the universal legal standard of the prosecution bearing the burden, which is described in the famous case of Woolmington v DPP as the golden thread in all criminal cases. Thus, it follows that once a person is convicted for possession, the judge is compelled to hand down the death sentence.
No legal system in the world is fail-proof or error-free. Despite the best efforts of all those involved in the judicial and legal system, errors still abound due to human frailty. Groups such as the Innocence Project in the USA work to bring about post-conviction DNA exonerations, and to date 273 people in the United States have been exonerated by DNA testing, including 16 who served time on death row. In Malaysia, some of us will still recall the famous 1970s case of Karthigesu, who was wrongly convicted for murder and later acquitted. Needless to say, the opportunity to right a wrong will not be available if the death sentence had been meted out. Then, we as a society are collectively responsible for having sent an innocent man or woman to their death. It will be cold comfort to the deceased person’s loved ones for us to hold that the system is not free from error and that every now and then, there are those who fall in between the stools! The burden of imposing a sentence of death is therefore great and leaves no margin for natural human error.
The execution of human beings by the State is seen as an “example of barbarity” and legitimises the taking of human life. Geoffrey Robertson QC in his book “The Justice Game” observed: “The court approved death penalty is wrong. And a system which is committed to the righting of wrongs cannot be used to perpetuate it.” [at p. 103 (Chatto & Windus, London 1998)] Today, in all Commonwealth countries, except Malaysia and Singapore, the mandatory death penalty has been declared to be a “cruel and unusual punishment.” The US Supreme Court in the 1972 case of Furman v Georgia [408 US 238 (1972)] remarked that “Death sentences are cruel and unusual in the same way that being struck by lighting is cruel and unusual”. It is also now quite clear that there is a trend worldwide to abolish the death penalty. It is perhaps best exemplified by the admission made by Justice Blackmun, who was once a strong proponent of the death penalty, in the 1994 US Supreme Court case of Callins v Collins [510 US 1141]: “From this day forward, I no longer shall tinker with the machinery of death … I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.”
The Global Overview on the Death Penalty for Drug Offences 2010, conducted by International Harm Reduction Association, found that there remains 32 states that provide for the death penalty for drug-related offences. Out of these 32, 13 have the mandatory death penalty. Malaysia is one of them.
In the course of the ongoing “Save Yong Vui Kong” campaign, Malaysia’s de facto Law Minister, Dato’ Seri Mohd Nazri Abdul Aziz, said that it was time for Malaysia to abolish the death penalty. At the same time, he did add that our country lacked the political will to change things. Perhaps it is time to generate that political will and fibre amongst our politicians. In this regard, the Malaysian Bar is pleased to note the creation of a cross-party caucus in Parliament that seeks to promote support for the abolition of the death penalty, and its decision on 27 June 2011 to move a resolution in Parliament to end the mandatory death penalty for drug-related offences. Where there is political will, there is a way.
The death penalty has no place in any society that values human rights predicated on the rule of law, justice and mercy. In the wake of the collapse of the apartheid regime in South Africa, Justice Ishmael Mahomed, the former Chief Justice of Constitutional Court said, “Death is different. The dignity of all of us, in a caring civilization, must not be compromised by the act of repeating, systematically and deliberately, albeit for a wholly different objective, what we find to be so repugnant in the conduct of the offender in the first place.” [The State v Makwanyane & Mchunur HRLJ 16 [1995] p. 195]
UCCA
The decision of the court of appeal that the University and University Colleges Act was unconstitutional was welcome indeed. Mr Justice Hishamudin quoted Justice Brandeis of the US Supreme Court: “... The greatest menace to freedom is an inert people; that public discussion is a political duty...”
THE IGP
says the rights groups are a threat to social norms; this human rights waves is a threat. Those promoting civil liberties were promoting a new religion. IGP forgets that he is not a colonial IGP but a civil servant and that the people are his boss.
THE “BLUE MANSION”
is now listed as one of the world’s top ten buildings. If that is so the first thing they must do is to get rid of the 1920's Italian floor tiles and restore the terracotta.
MAT REMPITS
Datuk Jasmin Mohamed an assemblyman has criticised the state government for not having provided recreational facilities for the young. He should have suggested that the Turf Club sets up a track running alongside the race course for the motor cycles to run on non race week-ends.
AN AFGHAN’S WORTH
RM150,000. That’s the US compensation for an Afghan killed by a US soldier
Tuesday, February 21, 2012
50 years
We should remember that 50 years ago the US invaded Vietnam devastating the country, Lao and Cambodia. Who can ever forget that photo of the little girl running down the road, burning with napalm? Jimmy Carter put it cynically when he said "We owe Vietnam no debt because the destruction was mutual."
Is UMNO becoming fascist? It seems to be the trend judging from the growing attacks by ruffians on meetings that UMNO does not like.
Proton has done well. When we read statements like that we cannot help thinking how many more hospitals could have been built with that subsidy of 60 millions per annum that that expensive 81,000 cars a year toy cost. Dr M is no longer PM yet this face saving wasteful farce goes on.
Is UMNO becoming fascist? It seems to be the trend judging from the growing attacks by ruffians on meetings that UMNO does not like.
Proton has done well. When we read statements like that we cannot help thinking how many more hospitals could have been built with that subsidy of 60 millions per annum that that expensive 81,000 cars a year toy cost. Dr M is no longer PM yet this face saving wasteful farce goes on.
Tuesday, February 14, 2012
Shame
The government should be ashamed. There is no extradition treaty between our two countries yet Kasgari was deported. The government pretends it does not guess that Kashgari might be put to death. It should resign its membership of the Human Rights Council.
When a former chief justice referred to the amendment to Article 121 of the COnstitution which removed judicial power from the judges Dr Mahathir was once again heard in denial.That man again! When will he ever shut up!!
When a former chief justice referred to the amendment to Article 121 of the COnstitution which removed judicial power from the judges Dr Mahathir was once again heard in denial.That man again! When will he ever shut up!!
Saturday, February 4, 2012
Dr Toh Chin Chye
Dr Toh Chin Chye who died recently was a very timid man. When Lim Tay Boh (later a professor at the university) asked him to join the Malayan Democratic Union and had assured him that he would be in the secret list known only to me he refused (scared that he might be betrayed?) With Harry Lee he felt safe.
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