Poetic Justice

FEB 16 – Oscar Wilde once wrote in The Decay of Lying that, “Life imitates art far more than art imitates Life.” What he meant by that was that art is the reality and life a mere mirror. As it strange as it may sound, the evidence appears to bear Wilde’s aphorism out.

Consider this for a start. In 1828, Morgan Robertson wrote a short novel entitled Futility, or the Wreck of the Titan.

The story was about an ocean liner called Titan which sinks in the North Atlantic after striking an iceberg. A scant 14 years later, real life followed suit with the ocean liner being none other than the R.M.S. Titanic.
The similarities between fact and fiction did not just end there. Both the Titan and the Titanic:

• were considered unsinkable;
• carried less lifeboats than was necessary;
• struck an iceberg; and
• sank.

Of course, I accept that one solitary incident like that could be explained away as mere coincidence. The problem is, there were and are many more incidents like that.

In 1915, D.W. Griffith directed a film entitled The Birth of a Nation. It did tremendously well at the box office, raking in almost US$10 million. Today, that sum sounds paltry but back then it was a princely figure and once we take into account of inflation, the US$10 million is equivalent to today’s US$200 million.¹  To put it in simpler terms, it is right up there with Mel Gibson’s Braveheart.²

The movie was not truly noted for its box office figures though. It was famous or perhaps more truthfully infamous for romanticizing the Ku Klux Klan (KKK) as saviours of white civilization. So effective was it at its task that the almost defunct group leapt back to life “from just a few thousand members to more than 100,000 within the same year”.³  Once again, life imitates art.

As for the piece de resistance, well I can only offer this: sometime in 1997, a then little known author wrote a series of books about a young dark haired and bespectacled wizard called Harry Potter. She built a fascinating world in the book replete with a Ministry of Magic, a school of magic and an antagonist who for various reasons ‘must not be named’.

It caught the attention of the world and spawned tremendous interest even over here. As fate would have it, things then took a bizarre twist.

Sometime in the late 2000s, someone in the Home Ministry took umbrage over the use of the word Allah by some communities in East Malaysia. With one magical stroke, the Almighty was relegated to ‘He Who Must Not Be Named’.

The story, of course, did not end there. The Muggle-like individuals, upset by the change, ran to the equivalent of the Wizengamot to make their objections known.

‘Wizards’ came from near and far to consider the merits of the objection and much were the deliberations over the arcane-like matter. Finally, a decision was handed down and it favoured that Muggle-like community.

Of course, I wish I am able to end just there but already an appeal has been lodged and whatever possible conclusion to the tale appears to have fallen squarely in the laps of a higher court, one which sometimes functions rather enigmatically, much like the Department of Mysteries but not quite content with that, fringe elements are already attempting to cast Silencio with their acts and deeds.

Perhaps, in doing so, they appear to be taking their cue from Wilde’s other aphorism that “Arguments are to be avoided; they are always vulgar and often convincing.” The thing is what the aphorism reads and what it actually means are two entirely different things.

1. http://en.wikipedia.org/wiki/Birth_of_A_Nation#Significance [↩]
2. http://www.imdb.com/boxoffice/alltimegross?region=world-wide [↩]
3. http://tinyurl.com/yzfr8r9 [↩]

OCT 21 — When a Malay wedding is over in some kampungs in Malacca, the custom is to welcome the groom into the family by placing charcoal on his face, thereby marking the conclusion of the groom’s journey. He is now part of the family and no more boundaries exists between the groom and the family.

So, it was interesting to see the reverse in action in a city like Shah Alam where, with one simple act in response to the proposal to relocate a Hindu temple, members of an entire community were made to feel unwelcome.

In place of the charcoal, there was a cow’s head and in place of an act to mark the removal of boundaries was another act that created boundaries instead of removing it.

Apparently the residents of Section 23 were unhappy and their unhappiness stemmed from a number of things, such as:

• the relocation would create traffic congestion as there was only one major exit from the neighbourhood to the highway;
• the temple was not in the plans when some of the residents bought their houses; the temple was being relocated to a predominantly Malay Muslim area;
• a protest memorandum had been sent to the Wakil Rakyat for the area pointing out that the temple would be 160m from the houses, 50m from a playground and 150m from Surau Al-Jannah coupled with a request for a public hearing but the same was turned down on the basis that the area was industrial land.

In other words, the impression given was that non-Muslim religious structures should be placed a suitable distance away as somehow such structures could be spiritually subversive.

This could not be further away from the truth and one needs only to look at how things were before to ascertain this. Take a look at:

• Pitt Street in Penang which boasts of having a mosque (Masjid Kapitan Keling), a temple (Goddess of Mercy Temple) and a church (St. George’s Church) all on one street;
• Jalan Tukang Emas in Malacca which boasts of having a mosque (Masjid Kampung Keling) and a temple (Sri Poyyatha Vinayagar Moorthi Temple) all on one street with another temple (Cheng Hoon Teng Temple) a mere stone’s throw away.

For that matter, take a look at the Old City located in Jerusalem. The entire area is no bigger than 0.9 sq km. Yet, it houses a number of iconic religious structures for those who subscribe to Judaism (Temple Mount and the Western Wall), Islam (Masjid Al-Aqsa and Dome of the Rock) and Christianity (Church of the Holy Sepulchre).

Clearly, in the past, Muslims never took the view that there was anything spiritually subversive or abhorrent about non-Muslim religious structures being built in the vicinity of a mosque or a predominantly Muslim residential area. Not if we go by past evidence.

Today, it seems some Malaysian Muslims are suddenly uncomfortable with the idea of having non-Muslim structures close by. The incident in Section 23 Shah Alam was not an isolated event.

There was a prior incident which took place in 1998 in Kampung Rawa, Penang. There, the issue was about a temple built supposedly too close for the comfort of some Muslims.

Yet, even when the Kampung Rawa temple was moved to accommodate some of the objections, a couple of thousand Muslims from the mosque still decided to confront a few hundred Hindus at the temple. Apparently, the peals of temple bells were still considered disruptive to prayers being held in the mosque.

All of this supposed discomfort or issues are puzzling from a religious standpoint as it stands in stark contrast with the Quranic position on the issue.

The Quran affirms clearly that non-Muslims have the liberty of conscience. [Two verses in particular come to mind: If it had been thy Lord’s will, they would all have believed, — all who are on earth! wilt thou then compel mankind, against their will, to believe! (10: 99) and Let there be no compulsion in religion. (2: 256)]

However, it pays to keep in mind that liberty of conscience is interlinked with the liberty to practise whatever is permissible within the chosen religion. This without a doubt includes the right to go to temple or church.

So can any Muslim worth his salt truly deny a non-Muslim from going to his temple or her church?

Of course, some might say in response: “None of the residents are actually disputing the right of Hindus to practice their faith. The real dispute is whether Hindus should be able to practise their faith in a temple located within a Muslim majority area.”

The problem is one can’t quite look at the issue as if it was a numbers game. After all, Malaysia is a Muslim majority country and if we accept the “numbers” argument as a valid premise to determine location of temples, some Hindus might suddenly find themselves being “spiritually displaced” with temples being located far from a Hindu’s place of residence. Surely, this can’t be appropriate.

That said, it must also be pointed out that it is not as if there is an absolute absence of reason in the protestors’ actions. Some of the grouses such as the one about traffic congestion are legitimate complaints from a planning law perspective and as such, need to be dealt with by the authorities appropriately.

However, the real quarrel is not so much against anyone pursuing whatever legal rights they believe they are entitled to but more against the head of a cow, an animal considered sacred to Hindus, being used during the course of the protests. More so when the protests were over the relocation of a building meant to cater to the needs of the Hindu faithful and when it is kept in mind that resolving a planning dispute normally requires things other than a cow’s head.

Whatever the case, it is likely that Malaysian Hindus are in a state of unease. The fates of their temples appear uncertain under both Barisan Nasional (think Kampung Rawa) and Pakatan Rakyat (think Section 23).

Clearly the authorities need to reconsider their approach and engage the relevant stakeholders BEFORE emotions come to a boil. Much like the Malay proverb: ibarat menarik rambut dari dalam tepung, rambut seharusnya tidak putus dan tepung tidak berselerak.

Where religion is concerned, diplomacy and cautiousness certainly seem warranted.

AUG 28 — It has been more than 50 years since our independence. Yet, today, we are still apparently debating how race fits (or doesn’t fit) in with our nation.

In our pre-independence days, the notion of race was probably somewhat irrelevant. We found a common enemy in the British or even the Japanese. Race then was immaterial. It was principally “Us” against “Them”.

Today, when the government even considers or decided — depending on which news report you go by — to remove “race” from official forms and document, it is big news.

No doubt, some saw the proposal/decision as a good thing. Sadly, it is not. Not when there was a caveat, or rider, printed in practically each and every report I read, that Bumiputera privileges are to remain. There are three points that I wish to make in this regard.

Firstly, there is great value in affirmative action programmes in transforming the economic and educational opportunities of its recipients. This is all the more true specifically when it is well thought-out and appropriately implemented. This was the case originally in Malaysia. Yet, somewhere along the line, we somehow appeared to have lost our way.

So much so, today, we are left to question why the privileges are applied only to one segment of the community. If we are truly intent in forging a colour-blind nation, we must keep in mind that poverty, for one, has never been and will never be the exclusive province of one particular race.

Secondly, we must recognise that any affirmative action programme ultimately is a response to a statistically evidenced state of inequity. In other words, for any affirmative action programme to continue, it must be backed up by statistical data. Yet, from the news reports on the present move, none has been presented to justify the insistence that the privileges should remain.

If we are genuinely intent on addressing the race question in some meaningful way, as the proposal/move suggests, then our affirmative action programmes need to be more egalitarian and even handed in their scope. Otherwise, we are wasting our time on mere cosmetics.

Thirdly, if we are truly intent on forging greater national unity, let’s not make the mistake of thinking that the root cause lies with any affirmative action programme. It does not.

Ultimately, all affirmative action programmes are given life by policies drawn up by our politicians. The apt question to ask therefore is whether our present political system “breeds” political leaders attuned to needs of all Malaysians irrespective of their race. Let’s consider this question from the perspective of the party presently making up the federal hovernment, i.e. the Barisan Nasional.

Clearly, the coalition is made up of a number of component parties. Umno supposedly represents the Malay interest, MCA the Chinese and MIC the Indians — all clearly pointing to the fact that our nation’s political battle lines are drawn along ethnic lines.

Of course, some might rightly ask what is wrong with such a formula. Well, what happens when we start demarcating political concerns along ethnic lines is that our political representatives are “trained” to look at issues from race-tinted lenses. Umno can’t talk about “Indian” issues as it is within MIC’s domain, MCA can’t tackle “Malay” issues as that is within Umno’s domain and so on and so forth.

Unfortunately, this is not merely confined to intra-party politics or inter-coalition politics but sometimes manifests itself in government policies. That the special privileges continue to be applied in its present form, long outliving the 15-year shelf-life period recommended by the Reid Commission, constitutes the best evidence of this assertion.

Fundamentally, the race question is actually not as complicated as it is made out to be. For Muslims, the answer to the race question is found in Surah Al-Hujurat verse 13:

“O mankind! We created you from a single (pair) of a male and a female, and made you into nations and tribes, that ye may know each other (not that ye may despise (each other).”

This Quranic position is by no means unique and is in fact shared by the major faith traditions of the world.

If we look for earthly inspiration, there is perhaps none better than the knockout blow dealt by Martin Luther King to the race question. This was what he said on the occasion of his Nobel Peace Prize acceptance speech in 1964:

“I refuse to accept the view that mankind is so tragically bound to the starless midnight of racism … that the bright daybreak of peace and brotherhood can never become a reality.”

Which is why for all its simplicity, it is more than a little strange that 50 years later we are still working out how to deal with the race question. No doubt there is May 13 in our nation’s history. But, to my mind, it is exactly because we experienced May 13 that we need to rise above the question of race and treat all Malaysians as fellow citizens and fellow human beings — socially, culturally, economically and politically.

After all, for every horror story that we may have heard about that dark blot on our nation’s past, I am sure you will find an equally compelling counter-narrative about families who sheltered or warned someone, who no doubt looked little a different to them, but ultimately was just as human as them.

This at the end of the day is the answer to the race question — we may all look different from one another but we are all human just the same.

Each of us deserves, as human beings of equal stature and dignity, the fullest space and opportunity to be all that we can be.

So, to the powers that be, let it be more than just a proposal/decision to remove “race” in some silly form.

Selamat Hari Merdeka!

This post is dedicated to the late Yasmin Ahmad, a wonderful soul who recognised that we are all just human and kept reminding us of our humanity. Merdeka will certainly not be the same without her.

(Malaysian Insider: 28.08.2009)

AUG 7 — Much has been said and written about last Saturday’s Gabungan Mansuhkan ISA (“GMI”) rally.

Most notably, the discussions centred on the question of whether traders along Jalan Tuanku Abdul Rahman in Kuala Lumpur are entitled to file a suit and seek damages against the demonstrators for losses they supposedly sustained on the day of the rally.

Some legal eagles were consulted and quotable quotes began to fly quick and furious on the possibility of such actions being grounded on nuisance and negligence.

However, in the midst of all this riveting and compelling narrative, I was a little puzzled that little mention was made about the police use of their weapon of choice — tear gas and water cannons. Well, little negative mention that is.

The media has actually gone on to report that the police were “congratulated” by the “authorities”. (Suffice to say, my puzzlement has given way to something else.)

No matter. Let’s start by asking some rhetorical questions — rhetorical only because answers to them could be obtained from reports from here and there.

Was the assembly peaceful? Yes, at least until the police started firing tear gas and water cannons. (Source: Reports by observers from the Human Rights Committee of the Malaysian Bar, Aug 2)

So, why did the police opt to fire their weapons of choice? The police were apparently forced to use tear gas “… disperse some 10,000 people from participating in gatherings organised by the Abolish the ISA Movement (GMI) …”. (Source: Bernama, Aug 1)

Was the order to disperse essential because there were two rival groups (i.e. pro-ISA and GMI) vying to deliver a memorandum regarding the use of the ISA and this was a possible threat to public order? No, because by 2.15 pm, the pro-ISA rally was cancelled. (Source : The Star, Aug 1)

So, when did the police start using tear gas and water cannons? At approximately 2.27pm onwards. (Source: The Star, Aug 1)

This much is now clear. Tear gas and water cannons were used merely to force the participants to disperse from a peaceful assembly. That was the crime — a peaceful assembly.

No matter. Let’s now consider the propriety of the “sentence” — tear gassing and water cannons:

Is it appropriate to use tear gas? The most common form of tear gas is o-chlorobenzylidenemalononitrile (CS) and chloroacetophenone (CN).

According to a study conducted by a number of medical doctors, including those from Harvard Medical School and Duke University Medical School, and reported in the Journal of the American Medical Association:

CS has a number of toxic effects. Broadly speaking, “… oral toxicology studies have noted the ability of CS to cause severe gastroenteritis with perforation. Metabolic studies indicate that absorbed CS is metabolised to cyanide in peripheral tissues.”

More worryingly, the same study also expressed caution at the fact that “… studies have not adequately examined the possibility that CS at less than high concentrations can cause lasting pulmonary effects.”

CN is said to be “… more likely to cause permanent corneal damage on contact with the eye and primary and allergic contact dermatitis …” (Source: Journal of the Americal Medical Association Vol. 262 No. 5, Aug 4, 1989)

Is appropriate to use water cannons? Water cannons have been known to cause serious internal injuries and even broken bones. (Source: Wikipedia)

Was tear gas merely used on demonstrators? No. Tear gas, like any airborne chemical agent, is indiscriminate in its effect. It affects anyone coming in close contact with it. Case in point — Masjid Jamek batik trader Fusaini Kuno complained of irritation in his eye when the police fired tear gas without any warning. (Source: Malay Mail, Aug 3)

Were water cannons merely used on demonstrators? No. Water cannons, like tear gas, cannot target indiscriminately. (Source: Wikipedia)

Consequently, it is manifest that the “sentence” is inappropriate given its propensity to cause harm, known or unknown.

This is why since 1981 and 1987 respectively, Britain no longer considers CS gas (tear gas) and water cannons as suitable tools for crowd control.

So, what actually happened that Saturday? A number of Malaysians felt very strongly that the ISA should be abolished — not amended.

They were so impassioned by their convictions that they took to the streets to peaceably express their sentiments and did so pursuant to an express right guaranteed by the Federal Constitution.

They did just that and nothing more. Until the police tear gassed them and used water cannons on them and so much more.

So, should the police be “congratulated” for their actions? Well, to paraphrase Lord Scarman’s words from his report on the Brixton Disorders, not if their tactics aggravated a public order situation. What more when the assembly was peaceful.

This does however leave us with one final tantalising question — should the traders sue the demonstrators or should the traders sue those who would be more worthwhile to pursue? Maybe it is time to call those legal eagles again.

(Malaysian Insider : 07.08.2009)

Iran sometimes seems like a nation in a perpetual state of revolution. In the early 20th century, between 1905 to 1911, there was the Constitutional Revolution which gave birth to a Constitution with constitutional rights for the people of Iran, the creation of a parliamentary system and a constitutional monarchy.

In 1963, the nation witnessed the White Revolution where the Shah of Iran - Shah Mohammad Reza Pahlavi – non-violently made a series of progressive economic and social reforms. One consequence of the reforms was that it antagonized the clergy and landed elites. This ultimately led to the 1979 Iranian Revolution,  arguably the nation’s most notable revolution, which saw the Shah of Iran being overthrown. (Notable also because of the many books, such as Azar Nafisi’s Reading Lolita in Tehran : A Story of Love, Books and Revolution and Afschineh Latifi’s Even After All This Time : A Story of Love, Revolution and Leaving Iran, and movies, such as Martjane Satrapi’s Persepolis (although it was a graphic novel before it was a movie),  were made to convey the upheavals caused by that particular revolution.)

Then there is the recent 2009 Iranian Election Protests where civil unrest followed suit after the results of the 2009 Presidential Elections were announced. To date, over 200 people were arrested, militia violence appears to be running unchecked and as yet, the number of casualties are unknown.

Granted, it doesn’t take too much intelligence to consider why foreign countries would prefer to have a destablised Iranian government as a nuclear-able Iran would be a game changing event for Middle Eastern politics. So in that sense the authorities allegations of foreign involvement cannot be simply dismissed. Nevertheless, the violence presently ravaging the country and the people of Iran is something to be deplored against.

So, let’s hope good sense prevails. In that spirit, take a peek at this cover of Ben E. King’s Stand By Me as sung by legendary Iranian singer Andranik “Andy” Madadian and Jon Bon Jovi together with Richie Sambora and Don Was. Jon even sings the first verse is in Farsi. Incidentally, the song is not for sale and is freely downloadable. Enjoy.

P.S. The mp3 can be legally downloaded for free here.

It seems there are many ways this debate can manifest itself. Here is a new one:

MUI may decide that swine is halal or haram, but as far as a vaccine is concerned, the institution which has the right and competence to assess its substance is the health ministry.

See here to read more about it.

I was in Jakarta, Indonesia last week to attend a forum on Civil Society in Solidarity with the Palestinian People. The forum was made particularly interesting, I thought, by the presence and participation of a number of Israelis.

Some were journalists, some were members of civil society and one was even running for a seat on the Knesset – a legislative branch of the Israeli government. What was immediately apparent, though, was that they were not shy of putting forward their views.

Amira Haas, for example, pointed out that the solution to Israeli-Palestinian conflict involved more than mere formulas like having a “two State solution” i.e. Israel and Palestine. The reality is that it also involved considering how resources like water was going to be divided between the Israelis and the Palestinians. According to her, Israel is resistant to the idea of a two State solution as it means giving up privileges it has acquired over the years and losing control of the future of the area. The loss of control isn’t too hard to imagine as there would be probably be a large influx of refugees into Palestine if the two States solution was realized.

Another Israeli, Dr. Gershon Baskine expressed the view that Palestinians should be demanding for membership of Palestine at the UN. Quite cleverly, he pointed out that the request should be made by Mahmoud Abbas (a.k.a. Abu Mazen). Implicitly, Gershon was endorsing the position adopted by Mahmoud that he was entitled to extend the terms of his Presidency in accordance with the Palestinian Constitution, a sticking point with those aligned with Hamas.

His suggestion does not highlight the political fragmentation between the Fattah and Hamas and understandably so given the present scenario on the ground. The fact is, what with the wall and the various policies impelemented by Israel on the Occupied Palestinian Territories including East Jerusalem, Palestine is practically on the brink of non-existence. As such, it Palestinians may be drawn to focus resources into the more compelling problems afflicting the state.

Much was also said about the US President’s recent speech in Cairo, particularly that it heralded a new approach towards Palestine and the Israeli-Palestinian conflict. However, eventhough I may be a minority in this respect, I remain highly skeptical about Obama’s ability to exert any influence over the Israeli-Palestinian conflict.

Well, not unless there is a radical change in how the US media reports on the conflict and not unless there are concerted efforts to educate the public. Israel realizes this and is already ramping up a post-Cairo PR campaign to ensure that the Zionist narrative remains foremost in the minds of the Americans.

The supreme irony of it all is that Israel was initially envisioned to be a sanctuary for persecuted Jews. Yet, today, Israel is probably one of the most consistent and flagrant persecuters in the world.

A cursory glance at the 2004 ICJ decision in the Palestinian Wall Case reveals that very clearly. Fifteen judges heard the case and by and large it was a 14 votes for and 1 vote against. Yet, even that 1 ‘dissenting judge’, voted affirmatively to confirm that Israeli-settlements on Occupied Palestinian Territories are illegal.

In fact, this much is also clear if we look at the reports tabulated by Amnesty International, Human Rights Watch and B’tselem, specifically the statistics involving the deaths of children.

Two in particular struck me i.e. the one involving 16-year-old Jackline Abu Shbak and her 15-year-old brother Iyad. Both were shot dead with a single bullet to their head in front of their mother.

Twenty minutes before being shot, New York Times reports that Jackline spoke to her father about scoring 97% in her exams and Iyad was telling his Dad that he misses him very much.

So, how did Israel transition from being a sanctuary for the persecuted to what it is today? I really don’t know. All I know is that from where I am sitting, that transition seems pretty complete.

Introduction

Khairy Jamaluddin is a man with an immense belief in himself, best reflected perhaps by the opening lines of his response to the recent Malaysian Insider editorial titled “Najib and Khairy’s unconvincing Perak script“. Nevertheless, the problem with self-belief is that, at times – at times mind you – it can also be an Achilles heel as self-belief over-estimates the value of subjectivity, at the expense of objectivity.

Crossovers are a Legal Right But …

No doubt crossovers are a legal right guaranteed by Article 10(1)(c) of the Federal Constitution. That much is elementary. However, the mere fact that crossovers are a right does not mean that whenever an individual elects to crossover, a ‘moral waiver’ automatically attaches to the exercise of that ‘right’ and no questions need to be asked. There are proper questions to be asked and depending on the answers to those question, only then can the right be said to exist in an unabated form.

A fair question to ask, for example, would be whether there were any undesirable elements involved in the crossover. Clearly, where the individual in question crosses over because of some form inducement or duress (both being criminal in nature), crossovers are not a right and should not be taken to be a right.

Such concerns are not merely rooted in some theoretical idea far removed from the real world. The reality, as noted by the Supreme Court of Jammu in the case of Mian Bashir Ahmad And Etc. vs State Of J. & K. And Ors, is that crossovers “generally take place not because of genuine proddings of conscience but because of personal aggrandisement and rank opportunism. They have become a pernicious form of political corruption threatening the functioning of the parliamentary democracy contemplated by the Constitution”.

The problem about the Perak crossovers is not so much that it went Barisan Nasional’s way but more in terms of the fact when the crossovers took place, two of the three Assemblymen who crossed over, i.e. Mohd Osman Jailu (Changkat Jering) and Jamaluddin Mohd Radzi (Behrang), were still facing charges for corruption.

Seen in that light, the fair question to ask would be whether the Assemblymen could exercise their right to crossover in a free and meaningful manner, given the “Sword of Damocles” hanging over their heads?

Granted, the Member of Parliament did take issue with the propriety of the 2 Assemblymen having seats on the Perak Executive Committee. However, that question is irrelevant and certainly trivial when compared to the former.

The Case of Arlen Spector, Quentin Davies Etc.

The final thing to be pointed out regarding the Member of Parliament’s reply is that the present issue cannot be resolved by arguing that ”because crossovers are acceptable in other countries, crossovers should be acceptable in Malaysia“. The Malaysian experience, thus far, have been to test the propriety of crossovers against Article 10(1)(c) of the Federal Constitution. This would be the fair and appropriate manner to test the issue of crossovers.

Of course, the Member of Parliament quite cleverly pointed out that when anti-hopping laws were being proposed “not a single political party in Malaysia vigorously pursued the introduction of such a legislation”. It was clever because, broadly speaking, Article 10(1)(c) could only be qualified by laws passed by Parliament and that too only on grounds of security, public order or morality. The impression given was thus two-fold: firstly, because there was no concerted effort by Parliamentarians to promulgate legislation against the right to crossover, the right exists in an unabated form – seemingly without any restrictions – and secondly, it is Parliament and Parliament alone which determines the legality of a crossover.

The reality, however, is that the Courts still retains a supervisory function over all matters. Explicit recognition of this principle of “not folding their arms and sitting back free from responsibility” can be found within the Reid Commission report where the Commission stated:

“The guarantee afforded by the Constitution is the supremacy of the law and the power and duty of the Courts to enforce these rights and to annul any attempt to subvert any of (the rights) whether by legislative or administration or otherwise.”

Consequently, the question of whether crossovers are acceptable within the Perak context, can certainly be a live matter for the Courts to resolve and not one for Parliament alone – subject of course to the caveat that there is a fit and proper case being brought before it and such issues are duly ventilated before it.

I intended to write a post on this but a fellow member of the Bar, Art Harun, has written a far better piece and posted it up on his blog. So, instead of reinventing the wheel, allow me to direct my esteemed readers to:

1. Perak Ramblings
2. What are you staying?
3. What are you staying part 2?

For those who were tuning out as the Perak debacle became more and more convoluted, Nizar succeeded in his suit at the High Court and a number of declaratory reliefs were granted by the learned High Court Judge. On hearing this, Zambry’s solicitors made an oral application for stay and this was refused by the High Court judge.

Zambry’s solicitors then went to the Court of Appeal and obtained a stay against the declaratory orders made by the High Court judge. The question is – can anyone obtain a stay of a declaratory order? In his posts, Art Harun considered that very question and rightly expressed the view that one can’t obtain a stay of a declaratory order.

While we are on this topic, I thought it sensible to point out another particularly comprehensive analysis given by Justice RS French [incidentally the Chief Justice of the High Court of Australia (the apex Court in Australia)], regarding the nature of declaratory reliefs, albeit within the Australian context, but which nevertheless remains quite applicable.

Of particular import is His Lordship’s reference to a decision made in Arnhem Land Aboriginal Land Trust v Northern Territory of Australia [2007] FCAFC 31, given on 16 March 2007 where the Full Court of the Federal Court refused to grant a CONSENT ORDER staying a declaratory judgment as “… the basic logic [is] that there is nothing about a declaratory order that can be stayed.”

All I can say is that from where I stand, it looks like we are in for some stormy weather come 18th. May, 2009 – the date fixed for the hearing of Nizar’s stay application at the Court of Appeal.

The job of being a Prime Minister is an unenviable task. There is on the one hand the need to forge a national identity, which by itself can be rather challenging even if one attempts this in one’s own house. On the other, there is also for example the need to ensure that security and social order – sometimes premised on polarizing grounds – is maintained throughout the nation. Recent events illustrate that conundrum best with many now poking fun at the 1 Malaysia concept presented by the present Prime Minister.

By recent events, I am referring to the fiasco in the Dewan Undangan Negeri in Perak where the iconic image will forever be of the (former) Speaker Sivakumar being dragged out of the Dewan Undang Negeri and the arrest of the activist Wong Chin Huat.

So much has been said about the Perak fiasco, nay debacle, that there is really no point by boring one and all by going over old ground. Nevertheless,  this much needs to be said about the former, what is presently happening are mere symptoms of the real problem.

Presently, an elected representative is entitled to change his allegiance without qualification as the Courts opted, rather ironically if one really thinks about it, to uphold freedom of association as a fundamental constitutional right. No complaint can rightly be made about the right of a representative to change his allegiance.

However, the same cannot be said when the representative opts to change his allegiance without being legally compelled to seek a fresh mandate from his constitutency. It is this absence of such a legal impediment that is the root cause of the present problem in Perak.

As for Wong Chin Huat’s arrest pursuant to the so called sedition charge, keep in mind that the Sedition Act, 1948 is a pre-Merdeka legislation. Since 1957, each Malaysian citizen has the right to vote. By extension, as expanded elsewhere, we are constitutionally entitled to agitate for change so long as the same is done in a peaceful and civil manner.

However, lets not get too pedantic by focussing only on the legal arguments of the arrest, there is one particular fundamental question to consider – what is so seditious about calling fellow citizens to wear black?

It wasn’t too long ago, albeit in a nation removed a few times from us, when a frail looking gentleman with quaint-looking glasses called upon all Indians to weave and wear the khadi. When Gandhi made that particular call, it was made an India then governed by the British. Today, his actions are herald as an example as far as civil disobedience is concerned.

The apt question to ask is if it is a right or even acceptable for a citizen to exhibit civil disobedience through their apparel when their Government is made up of non-citizens, then shouldn’t it be similarly a right, if not more so, for a citizen to do so when the Government is made up of fellow citizens which they have elected?

No doubt, the caveat to this is that the same must be done in a peaceful and civil manner and it is significant to note that in Wong’s case, there was no evidence that he was calling for more than just civil disobedience. For that reason, it becomes all too easy to question the propriety of his arrest.

Introduction

The Sedition Act (“the Act“) is a curious piece of legislation which we inherited from when the British administration. Curious because, while the British have come and gone, the citizens of this country have been consistently told that the Act remains current. Most recently in 2006 by no less a personality than Zainuddin Maidin, Malaysia’s one time Information Minister. The question gains particular poignancy given the recent charge proffered against Karpal Singh for allegedly insulting the Perak Sultan. To gain some perspective to the issue, it may help to look back into history and consider how the Act came about.

Looking Back

The Act was passed in 1948 vide Ordinance No. 14 of 1948 and the 1940s, it must be said, were rather turbulent years for the country. In the early ’40s, Malaya was under British rule but by late 1941, this changed rather abruptly, with the landing of the Japanese forces on the beaches in Kelantan or Southern Thailand.

The Japanese occupied Malaysia till mid-1940s but this began to change on 15th. August, 1944 as a consequence of Japan’s surrender in World War II after the Hiroshima and Nagasaki bombings. Thereafter, circa September, 1945, the Federated Malay States (Selangor, Perak, Negeri Sembilan and Pahang), the Unfederated Malay States (Johor, Kedah, Kelantan, Perlis and Trengganu) and the Straits Settlement (Malacca, Penang, Singapore and Labuan) were placed under British Military Administration. (“BMA“)

Britain then set about looking for a more suitable constitutional arrangement for their administration. In October, 1945, the British first expressed the idea of the Malayan Union and despite the loss of political power it entailed for the Sultans, the British representative concerned – Sir Harold MacMichael – managed to obtain all their approvals to the Union. Soon thereafter, on 1st. April, 1946, BMA’s administration of Malaya ended and the Malayan Union came into being.

The Malays opposed the notion of the Malayan Union and their objections centred on:

“… the methods Sir Harold MacMichael used to acquire the Sultans’ approval, the reduction of the Sultans’ powers, and the granting of citizenship to non-Malay immigrants and their descendants – especially the ethnic Chinese, not only because of their racial and religious difference but also because their economic dominance was seen as a threat to the Malays.”

Consequently, they orchestrated a number of actions during those years and ultimately forced the British to abandon the idea of the Malayan Union. The entity ceased to exist on January 1948 and was replaced by the Federation of Malaya.

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This Saturday, 14.03.2009, eLawyer will be organizing a conference entitled “Blogging & Law”. More details can be found here. Hope to see some familiar faces at the conference and looking forward to seeing some unfamiliar ones.

UPDATE @ 15.03.2009: For those who couldn’t make it, a PDF copy of the PowerPoint slides I used during the presentation, can be found here.

I was in the midst of finalizing my preparations to judge a moot competition in Multimedia University Malacca. However, I was interrupted in my deliberations when my phone gently beeped twice to notify me that I had received an SMS.

It was shortly before Maghrib and it was from a dear friend informing me that his father, Tan Sri Yusoff Mohamed, had passed away. The news seemed rather surreal as I had just met Tan Sri Yusoff a couple of weeks ago albeit on a more happy and festive occassion held to celebrate the aqiqah of my friend’s newborn son.

As I was about to take my leave from the function, I remember promising him that I would drop by sometime soon and to which he merely gave me a wry smile. In retrospect, perhaps Tan Sri Yusoff knew more than he was letting on. What is certain however is that the legal world will be that much dimmer now that another legal luminary has been elevated to the Highest Court.

Al-Fatihah.

Bernama reports that the Sultan has ordered the Menteri Besar of Perak (and his State Executive Council) to resign. There will be no dissolution of the Perak State Legislative Assembly. In the upshot, Perak now has a BN-led State Government. See here for the official media statement by the Office of DYMM Paduka Seri Sultan Perak Darul Ridzuan.

The two articles referred to in the media statement are as follows:

“16(6) If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.”

and

“18(2) His Royal Highness may act in his discretion in the performance of the following functions (in addition to those in the performance of which he may act in his discretion under the Federal Constitution) that is to say-

(b) the withholder of consent to a request for the dissolution of the Legislative Assembly.”

The Perak Government’s reaction was to file a suit to declare that the Behrang, Changkat Jering and Jelapang state seats vacant. That and something about some massive rally.

The Kuala Lumpur Foundation to Criminalise War held a Forum for Palestine at the Crowne Plaza today. In his special address at the Forum, Tun Mahathir Mohamad gave an excellent primer on the creation of Palestine/Israel and the tragedy that is occassioned upon Palestine and her people. A transcript of the 4th Prime Minister of Malaysia’s speech can be found here.