Month: October 2014

Analysing The Prosecution’s Reply

Today (31st October 2014) concludes day one of the highly anticipated reply by the prosecution to the many things that were brought up by Datuk Seri Anwar Ibrahim’s defence team. 

I have to be honest that as an objective person following the Sodomy II trial, I am disappointed by Tan Sri Shafee Abdullah’s performance.

I was sincerely hoping that he would bring his A game and rebut with facts every point the defence submitted. Shouldn’t he be darn good at what he does considering the Attorney General overlooked all the DPP’s under his charge?

Regarding Anwar’s alleged alibi witness, Shafee questioned why the witnesses would be scared of the police when the police only wanted to interview them. Seems like a valid question

However, years ago, in an unsworn statement from the dock, Anwar claimed that “Haji Hasanuddin bin Abd Hamid, had been harassed by the police for a total of thirty hours in the recording of his statements which were all video recorded.”

Solving this problem wouldn’t require one to be a rocket scientist. A simple review of the videos from the interrogation would allow the courts to see whether or not Anwar’s allegation about the witness being harassed is baseless

Another thing I failed to comprehend is how the defence never filed for a subpoena to compel Haji Hasanuddin to appear before the courts. Considering his ownership of the unit where the alleged sodomy took place, and the possibility that he could provide Anwar with an alibi, what he has to say is imperative

Tan Sri Shafee Abdullah failed to address the issue of the meeting between Saiful and Datuk Seri Najib, as well as two other police officers prior to the alleged sodomy. Najib admitted to meeting Saiful for about an hour at his residence

It’s legally not wrong to meet up with high ranking officials. However, it’s a bit fishy considering that Saiful was Anwar’s former aide, and Najib was on the side of the political divide.

What’s even more odd is that the meeting concerned scholarships yet was held at Najib’s private residence. The fact that Shafee did not thoroughly address this meant that the door on the likelihood of Anwar’s political conspiracy theory remained open

Moreover, Shafee in his rebuttal, questioned how investigating officer Jude Pereira would have had access to fresh semen samples if indeed the latter had tampered with the evidence. This is a well thought out point, but is still subject to Anwar’s political conspiracy theory which was not refuted

If indeed there was a conspiracy to end Anwar’s political career, it wouldn’t be surprising that Anwar’s semen was found on an underwear not worn by Saiful on the day of the alleged sodomy. Powerful people can make things appear or even make them go away

Supt. Jude Pereira placed the DNA evidence in a steel cabinet instead of in proper refrigeration facilities (fact). On top of the DNA evidence being retrieved after 36 hours of the alleged sexual assault taking place (fact), it was also left open to degradation

Just because Jude Pereira mitigated the mistake by turning on the office air conditioner to keep the samples cool, this doesn’t negate the fact that negligence has occured. Pereira’s blatant failure to perform his duty could very well have affected the credibility and admissibility of the DNA evidence

Shafee’s reply to the lack of evidence regarding the use of the K-Y Jelly is laughable. The lead prosecutor held that there was no carpet stain because the jelly could’ve been spilled on a towel instead

Why is this possibility in contradiction with Saiful’s testimony that some of the jelly spilled onto the carpet? Where is this mysterious towel Shafee speaks of? How come it wasn’t admitted as evidence to support the claim that the controversial K-Y Jelly was used during the alleged sodomy?

Moving on, Shafee brought up the possibility that Anwar and Saiful had a “relationship” as the latter was given allowances and perks during his tenure as Anwar’s aide.

Shafee’s primary justification was that Saiful was a school dropout yet was able to afford expensive suits, was given generous allowances, and was sent on overseas trips

Citing Saiful’s testimony, Shafee said the former aide to the opposition leader earned a basic salary of RM1,000 but was given US$1,000 as allowance for a trip to Singapore and HK$1,000 dollars when he was sent there

Objectively speaking, the amounts mentioned aren’t exorbitant, though it is worth taking note of. Isn’t it completely normal for employees to be given allowances when they are sent on overseas trips? Some company trips are even completely sponsored!

Does this imply that the supervisor/manager has a relationship with the particular employee? Not in most circumstances! Anwar just needs to satisfactorily justify why the allowances were given and it will no longer be an issue

Next, Shafee attempted to reconcile the inconsistency in Saiful’s testimony regarding the duration of the alleged sexual assault. During the trial, Saiful said that the alleged sodomy lasted for five minutes. However, initially, Saiful mentioned that it was for thirty minutes

Today, Shafee told the court that the 30 minutes included the time to take a shower. Am I the only one who thinks this is ludicrous? Why would anyone include the time taken to take a bathe when asked about how long he/she was sodomised?

A mind-bloggling question I struggled with since the beginning is why Anwar never testified from the witness stand where he can be cross examined? If he was truly innocent, it wouldn’t be an issue to testify under oath right?

After all, this trial is a matter of life and death (metaphorically speaking) for Anwar. Being sent to jail would signal the end of his political career and possibly the demise of Pakatan Rakyat

So many unanswered questions remain. It is no surprise that the Sodomy II trial is a highly controversial one! I look forward to round two of the prosecution’s submissions.

*Read this amazing article at The Malaysian Insider


Proving Beyond Reasonable Doubt

In light of the ongoing Sodomy II trial, the following are some basics of the criminal justice system that we should be informed or even reminded of

(i) It is the job of prosecution to prove that the accused committed the offence. This is in line with the legal maxim semper necessitas probandi incumbit ei qui agit (translated: “the necessity of proof always lies with the person who lays charges”)

(ii) The defence merely needs to raise certain discrepancies regarding the case, and the accused would be acquitted, provided the court is satisfied that otherwise, the conviction would be an unsafe one

(iii) The prosecution needs to prove beyond reasonable doubt that the accused committed the offence. It is a higher burden of proof than that of civil law (i.e. on the balance of probabilities) because the liberty of the accused is at stake (in Anwar’s case, five years imprisonment or more)

Datuk Seri Anwar Ibrahim’s defence team led by former Federal Court judge, Datuk Seri Gopal Sri Ram started off well. They raised a myriad of questionable issues, thus casting a lot of doubt in the prosecution’s case

The first concerned Anwar’s alleged alibi. Sri Ram said that the defence did not pursue the alibi because the police had intimidated the main alibi witness, who is the owner of the condominium.

If indeed the accusation is true, it would further mar the already damaged reputation of our police force as such scare tactics would prevent Anwar from getting a fair trial (contrary to Article 10 of the Universal Declaration of Human Rights of which Malaysia is a signatory but has yet to ratify)

Secondly, there was no evidence of sexual penetration. This claim by Sri Ram was based on medical reports. If it can be conclusively proven that there was an absence of sexual penetration in the anus, there can be no sodomy.

However, the testimonies of expert witnesses tend to contradict one other, thus the difficulty in reach an absolute conclusion whether or not there was in fact sexual penetration

Next is regarding the lubricant. It was not mentioned in the police report made by Saiful and popped up for the first time during the trial. Perhaps Saiful forgot to mention it because he was traumatized?

Oddly enough, the lubricant was not on list of exhibits during trial and was even mishandled by the investigating officer who gave it back to Saiful instead of keeping it as evidence. Considering the controversy surrounding the lubricant, I am of the opinion that the lubricant shouldn’t be taken into account

Saiful’s credibility is undoubtedly questionable. He insisted that during the ordeal, some K-Y Jelly spilled onto the carpet. However, the police investigation revealed that no stain was found on the carpet. There’s clearly an inconsistency in his testimony

Besides that, Sri Ram pointed out the ridiculousness in which the underwear Saiful wore was washed but the latter’s anus was left untouched, hence preserving the DNA evidence. On top of that, Anwar’s semen was found on underwear not worn on the day of the alleged sodomy. I’m no conspiracy theorist but the possibility of the evidence being planted exists

Moreover, it was alleged that Saiful met with Najib and other police officials two days prior to the sodomy complaint. If indeed such a thing happened, even a reasonable man would wonder if something fishy is going on.

Moving on, let us consider the photograph of Saiful at Anwar’s house. The picture was taken a day after the alleged sodomy whereby Saiful and Anwar met up for a discussion and tea session. Which mad person would hang out the next day with the very person who unconsentually sodomised him?

Since Saiful admitted to being there, there is no question that the photograph was doctored or anything of that sort. Ergo, it is material evidence which should be admitted as it could very well affect the outcome of the case

It is interesting to see what prosecutor Datuk Seri Muhd Shafee Abdullah has up his sleeve. He will have to bring his A-game if he doesn’t want Anwar to walk out a free man at the end of this trial

The Federal Court needs to be constantly reminded that it is a court of law, and NOT a court of politics. Therefore, any political influence should be tossed aside. The courts are to decide without fear or favour!

According to Lord Hewart in R v Sussex Justices, ex parte McCarthy, “it [… ] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Therefore, the highest court of our land should only uphold conviction if and only if the prosecution successfully proves beyond reasonable doubt that Anwar sodomised his former aide, Mohd Saiful

* This awesome article also appeared at The Malaysian Insider, Malaysia-Today, and Malaysiakini

DPM, Enough Double-Talk

“This racial understanding must be protected and strengthened so that the aspiration of making Malaysia a role model for other countries can become a reality soon” (Tan Sri Muhyiddin Yasin, Christmas 2011)

“I believe in racial tolerance as it is integral to peace in Malaysia. It can be retained if mutual understanding, respect and cooperation continue to be practised” (Tan Sri Muhyiddin Yasin, Chinese New Year 2013)

“I hope the Festival of Light of the Indian community in Malaysia will overcome all darkness which obstruct unity among the various races so that we can enjoy life in harmony in the spirit of tolerance which is
important for a multiracial country like Malaysia” (Tan Sri Muhyiddin Yasin, Deepavali 2014)

Aren’t the aforementioned excerpts from past speeches by our beloved Deputy Prime Minister (DPM) touching? They are full of racial tolerance and promotes moderation, in view of our multi-racial society.

The quotes above are exactly what the average Malaysian has always wanted and still wants to hear! Whoever makes our DPM’s speeches deserves a raise!

Sad to say, Tan Sri Muhyiddin Yasin (and many other politicians) practices double-talk. During racial/religious festivals, we get to hear wonderful 1Malaysia speeches (such as those above). Other times, we hear the usual divisive mantra

In 2009, Malaysia’s DPM blamed BN’s loss at Bukit Gantang (parliamentary seat) and Bukit Selambau (state seat) on the ungratefulness of the non-malays towards the Government. In an interview with Mingguan Malaysia, he said:

“Ini yang mungkin menyebabkan sukar BN mendapat sokongan walaupun kita fikir bila mereka hendak sekolah Cina dibantu, kita bantu, sepatutnya mereka membalas budi.”

“Pada waktu itu, kita pun tidak berharap
sokongan kaum Cina akan meningkat 40
peratus dan sebagainya cuma kita berharap ada peningkatan sedikit tetapi apa yang berlaku ia mencatatkan penurunan, macam tidak ada penghargaan terhadap apa yang kita lakukan.”

Rough translation:
This (the removal of former Perak MB, Nizar Jamaluddin) could have made it difficult for BN to get support although we thought that when they wanted aid for Chinese schools, and we helped, they would have repaid the favor

At that time, we didn’t expect support from the Chinese to rise to fourty percent and all. We hoped for a mininal increase in support but what happened was that a decrease was recorded, as if there was no gratefulness towards what we have done

Eh, why the change in tone? If Muhyiddin was one who always treasured racial unity, he wouldn’t have blamed a specific race or community of people for BN’s loss.

Doesn’t he know that doing so would lead to dissatisfaction towards the Chinese? Why the double-talk?

A year later, Muhyiddin found himself in the limelight when he said the following:

“I am a Malay first but I want to say that being a Malay does not mean that you are not a Malaysian.”

“How can I say I am a Malaysian first and a Malay second. All Malays will shun me and say it’s not proper as Indians will also say they are Indian first,”

Our dear DPM doesn’t even believe in being a Malaysian first! Those prioritising their respective race may end up developing a superiority complex (e.g. malay supremacy) in which they feel those of other races are inferior to them

Tan Sri Muhyiddin Yassin was also quoted in 2010 as saying that anyone was free to form an association, including Chinese or Indian versions of the Malay rights group, Perkasa. He added that it would be acceptable as long as it was formed with good intentions

Again we see emphasis on one’s race over being Malaysian first. Groups championing the rights of any particular race definitely falls under the category of an ‘obstruction to unity among various races’

Groups like Perkasa stand up for Malay rights at the expense of other races [e.g. “…when their (Malaysian Chinese) power spreads, then it will threaten national security and the May 13 incident will return” – Ibrahim Ali]. If we wanted to promote unity amongst everyone, shouldn’t we be encouraging the establishment of NGOs that fight for the rights of Malaysians?

In 2012, the Deputy Prime Minister pointed out that the Chinese-dominated DAP was now looking to increase its Malay membership, suggesting that it would be poaching supporters from the same pool as PAS, whose members are predominantly Malay Muslims.

“And now we hear DAP wants to encourage Malays to join its party.

“My question is, if Malays enter DAP, who will enter PAS?”

There are so many things wrong with Muhyiddin’s statements. First of all, is it wrong for Malays to join DAP? Constitutionally and legally, no. Socially, it’s not wrong and has even become somewhat of a trend (e.g. Dyana Sofya, Melati)

Morally, it’s arguable since a significant amount of people (including Muhyiddin, as per his 2011 opening speech in the AGMs of Umno Wanita, Youth and Puteri) believe that DAP is anti-malay and anti-islam.

Next, is it socially unacceptable for non-malay muslims to join PAS? Not at all actually. What about Indian Muslims? I’m sure PAS has at least a  few! How can our DPM have such a skewed view that a Chinese must join DAP while a Malay must join PAS

PAS even has a non-muslim wing! I don’t see UMNO having a non-malay or non-muslim wing! Why isn’t racial-unity-promoter Tan Sri Muhyiddin Yasin advocating UMNO’s membership to be opened to non-malays? (similar to what was proposed by Dato Onn Jaafar)

Just a reminder to our DPM and every other politician out there, spare us the empty rhetoric! It’s time that you ALL walk the talk! The rakyat (people) are paying attention and will hold you accountable for every word spoken

*You can also find this at The Malaysian Insider , Malaysia Today , Free Malaysia Today

The Relevancy of the Pendatang Dispute

In The Malaysian People’s Movement Party (Gerakan)’s recently concluded 43rd National Delegates Conference, Johor delegate Tan Lai Soon made a remark that “except for the natives of Sabah and Sarawak and the Orang Asli, everyone else in Malaysia is a pendatang (immigrant)”

Tan backed his claim by saying that “when Umno members say that the Chinese are pendatang, they obviously forgot that they were also pendatang from Indonesia”

Tan was most probably referring to former information minister Tan Sri Zainuddin Maidin who wondered why the Chinese were annoyed when they were referred to as “pendatang” because they identify themselves by speaking in their own dialects, and continue to isolate themselves by not mastering the national language.

Needless to say, Tan came under fire for making such a radical statement. Despite his apology, he has been suspended from his party, and may face criminal charges as a coalition of Malay NGOs called Pertubuhan Pembela Islam (Pembela) lodged a police report over the issue.

Gerakan Deputy president Datuk Dr Cheah Soon Hai attempted damage control and insisted that Tan’s remark was not the party’s stand. Cheah went on to say that Gerakan is a party of all races and that no Malaysian is a pendatang

Let us all ask ourselves the following questions. Does identifying whether the Malays were/are pendatangs:

(i) help improve racial relations?
(ii) propel our country to greater heights?
(iii) solve the social ills that plague our society?
(iv) curb crime?
(v) reduce our fiscal deficit?
(vi) improve the living standards of Malaysians?

Any reasonable man would be able to tell you that the answer to the aforementioned questions is a simple ‘no.’

Delving into whether Malays are/were pendatangs is akin to opening a Pandora’s box. It would have severely detrimental and far-reaching consequences

What matters is that Article 153(2) of the Federal Constitution  guarantees the special position of the Malays and the bumiputeras of Sabah and Sarawak. Let us learn to respect that.

It is also a fait accompli that the non-malays and non-bumiputeras were once immigrants, in the sense that their ancestors came from different parts of the world, for different purposes (mainly to make a living). Let us learn to acknowledge that

But let us take note that was way before we achieved independence! Many of the non-malays and non-bumiputeras are at least second or third generation Malaysians. Therefore, the question of ‘who is a pendatang’ is no longer relevant!

Malaysia has been an independent nation for 51 years! That’s over half a century! It is shocking that after so many years, we are still divided by history

History should bring us to the realisation that we Malaysians are stronger together! As cliche as it sounds, there is so much truth in the idiom ‘united we stand, divided we fall’

Instead of focusing on what pulls us apart, why not focus on what brings us together? Things like sports, fighting corruption, eradicating poverty, combating crime, and addressing wastages of taxpayers’ monies

I beseech both sides of the divide to ceasefire! Stop dishing out ‘pendatang’ remarks (or any divisive/racial/derogatory remark for that matter).

We are ALL here to stay. It is time to wake up and smell the coffee! The sooner you realise it and celebrate our diversity, the quicker our nation can progress

*This awesome piece was featured by The Malaysian Insider , Malaysiakini

The Regression Of Our Society

Yesterday, the video “Samseng attack GHAH @ Speakers Square Penang” by youtube user Advotool Media came to my attention. For those of you who did not watch it, basically, Gerakan Hapus Akta Hasutan (GHAH)’s Penang coordinator Ong Jing Cheng as well as a few others were heckled and pushed around during their peaceful gathering at Penang’s Speaker’s Square

“Unacceptable, abhorrent, repulsive, barbaric, uncivilized, undemocratic, illegal, insolent, untenable, quixotic, unscrupulous, boorish, cockamamie, craven, dastardly, egregious, odious, and asinine” were some of the words that flashed through my mind as I watched the seven minutes and thirty seconds video 

Aren’t the troublemakers worried about the civil and criminal repercussions of their actions? The few that instantly came to mind were: psychic assault, battery/physical assault, and the use of criminal force otherwise than on grave provocation (s.352 of the Penal Code)

The Coalition of Penang Islamic NGOs even had the gall to say that they were merely asserting their freedom of speech! It seems as though as our society is regressing instead of progressing!

Under what sick and twisted logic does the freedom of expression allow you to physically and verbally abuse another person? Just as you have the right to speak responsibly, the other person does too!

The Coalition of Penang Islamic NGOs blamed the Pakatan Rakyat (PR) state government for promoting freedom of expression by opening up a Speaker’s Square.

The coalition’s general secretary was quoted as saying, “The move by the state government to allow a Speaker’s Square and to allow freedom of speech is causing havoc, fights and all sorts of incidents”

As we should know, the freedom of expression is enshrined in Article 10 of our Federal Constitution, and is subjected to the laws of our land on defamation, criminal intimidation, assult, insult, etc.

Therefore, the Penang Government’s act of opening a Speaker’s Square for people to speak their mind is in line with Article 10 and is a good step in enhancing democracy in our nation

Ahmad Yakuub’s statement that “every Sunday, from 6pm to 7pm, we (the public) are free to say what we want at the Speaker’s Square, it does not matter whether it is to instigate people” is nothing short of misleading

The Penang Government does NOT have the right to allow a person to speak freely and shield them from criminal prosecution. Hence, those who misuse the freedom at the Speaker’s Square to defame or instigate others will face the full brunt of the law

The use of the Speakers’ Square is subject to the following conditions:

1. All speakers are prohibited from using loudspeakers, megaphone and any other public address system.

2. Anyone who uses the Speakers’ Square to make speeches does so at his or her own risk.

3. The State Government and the Municipal Council of Penang Island will not be responsible for any prosecution or legal action by the Police or civil proceedings

Condition 1 was clearly violated as someone from the pro-Sedition Act camp used a megaphone to drown out GHAH’s Penang coordinator Ong Jing Cheng

Condition 3 clearly substantiates my point that one is still responsible for what he/she says at the Speaker’s Square. The Speaker’s Square is but a mere platform for a person to air his/her views, and for people to have debates and discussions. Speaking there DOES NOT confer an immunity upon the speaker

This is unlike the legal immunity of parliamentary privilege in which our elected representatives are granted protection against civil or criminal liability for actions done or statements made (subject to the rule of unparliamentary language) in the course of their legislative duties.

Such a right is necessary to ensure that even the most controversial issues get debated in Parliament

At the time of writing, no action has been taken against the perpetrators. The police has to be swift in castigating the individuals behind the vile act, regardless of whether a police report is/was made or not

The AG should also expeditiously prosecute those involved and make it a lesson to everyone that such behaviour is unacceptable and will not be tolerated!

If the IGP or the AG can’t do their job properly, it’s high time we replace them with competent individuals. Day after day it seems like our country is heading towards lawlessness!

Besides the initiation of criminal proceedings, Ong Jing Cheng and the British couple can and should sue the scallywags under the law of tort for the assault and battery they underwent.

* Read it also at Malaysiakini, The Malaysian Insider, Malaysia Today, The Malay Mail Online

A Redefined Perspective of Vernacular Schools

The issue of vernacular schools has popped up yet again. This time, UMNO Petaling Jaya Utara division deputy head Mohamad Azli Mohemed Saad suggested the abolishment of vernacular schools be debated at UMNO’s upcoming general assembly

Azli feels that Chinese schools [SJK(C)’s] are being used by the opposition to breed racial and anti-government sentiments

Cheras Umno division chief Datuk Seri Syed Ali Al Habshee hopped on the bandwagon and urged that the vernacular school system be replaced by a single-stream school system.

His main reasoning was that vernacular schools are “seen as the platform in creating the thickening racist sentiments among the people”

Contrary to popular belief, vernacular schools are NOT guaranteed under Article 152 of the Federal Constitution. Vernacular schools are but mere products of that very provision.

Articles 152(1)(a) and (b), clearly states that no person shall be prohibited from using, teaching and learning any other language, unless for official purposes; and that nothing shall prevent the right of the federal government or any state government from preserving the use and study of language of any other community in Malaysia

Technically speaking, Article 152 is not infringed IF vernacular schools are called to shut down because it is not the one and only way for a person to learn his/her mother tongue (though it is by far the best way), or any other language

Legal talk aside, let us consider the allegations that vernacular schools are being used to breed racial sentiments and that national schools are better at promoting national unity

As per Chow Siew Hon [deputy president of the United Chinese School Committees Association (Dong Zong)], 14%, or some 80,000 of the 600,000 pupils enrolled in chinese schools were non-Chinese

If indeed schoolchildren attending SJK(C)’s were racially indoctrinated, wouldn’t we hear more about this in the news? It is expected that if such an abhorrent thing happened, the children would have gone and complained to their parents, and the press would have a field day covering the issue

Upon doing a little research, I came across the following:

May 2008, at SMK Telok Panglima Garang, a history teacher had allegedly called Indian students in a Form Four and a Form Five class ‘keling pariah’, ‘Negro’, ‘black monkeys’ as well as other derogatory names.

The teacher had also purportedly said that ‘Indians came from dogs’ and the community members were stupid and prone to thuggery and thievery.

The police reports also alleged that the teacher had said that Indians were the ‘children of prostitutes’ and the community’s youths ‘did not have testicles’

Four years ago,  Pn Siti Inshah (headmistress of SMK Tunku Abdul Rahman Putra) allegedly said “Chinese students are not needed here and can return to China or Foon Yew school. For the Indian students, the prayer string tied around their neck and wrist makes them look like dogs because only dogs are tied like that.”

Just awhile after that, the principal of SMK Bukit Selambau told her Chinese pupils to “return to China.” She uttered the derogatory remarks because students were eating in the school compound during the fasting month of Ramadan. As an educator, shouldn’t she have reprimanded them in a more appropriate fashion?

Also in 2010, a teacher in SMK Raja Jumaat had purportedly censured the Indian and Chinese students when they arrived late to the examination hall by telling the Chinese to return to China and the Indians to India if they failed to understand her instructions in Bahasa Malaysia

In 2011, a teacher in SMK Tun Abdul Razak told her students to go back to China because the students didn’t do very well in their Bahasa Malaysia exam. Does it mean that if students do badly in their history paper, they should go back to prehistoric times?

There are students (regardless of race) that are poor in BM. So should they all go back as well? Where to since most (if not all) are Malaysians?

A teacher at SMK George Town, Sabariah Ramli, had allegedly uttered the words “Hindu Pariah.” Prior to that, she allegedly singled out a group of Indian students and told them: “Hei Hindu diam (Hindu shut up).”

According to the police report, the students were talking in class after an examination when the teacher shouted at them. This is yet again another situation where racist remarks were obviously uncalled for

Just last year, the headmistress of SMK Alam Megah told her non-malay students to “balik India dan China” as she was angered by the pupils who made noise while the national anthem was being sung.

Apparently she had also told the Malay students to go back to Indonesia when she chided the pupils. Isn’t this directly telling students that they dont belong in Malaysia (despite the fact they are Malaysians)?

In case you didn’t notice, all the incidents above occured in national schools. I failed to find any news article regarding vernacular schools refusing pupils of other races, or racially abusing students of other races by calling them derogatory names. So who is breeding racial sentiments now?

A vast majority of those claiming that SJK(C)’s promote racism (be it directly or indirectly), are the very same people who have never attended a vernacular school. They have such a skewed view because of hearsay!

On top of some national school teachers being outrightly racist, one cannot say for sure that national schools would trump vernacular schools when it comes to promoting national harmony.

After all, having a single-stream school system would not guarantee that students of all races would mix and get to know one another. All it does is ensure that the students see those of other races in class for at least 5 days in a week

If our politicians and influential figures continue to churn out racist statements like “Malays are lazy” (Tun Dr Mahathir), “Keling” (Zulkifli Noordin), ‘Petronas built by Malays, belongs to Malays’ (Perkasa), and ‘Chinese migrants are intruders’ (Abdullah Zaik, ISMA), how do we expect unity even amongst the students?

Racist statements would logically lead to the students being suspicious of those of other races. Is that what we really want? Do we want to improve things, or make things worse?

We should address the root cause, that being racist individuals. Swift action must be taken against them (regardless of who they are, be it teachers, ministers, or even the prime minister himself) to show our society’s distate for racism!

Don’t abolish vernacular schools until the root cause has been addressed, and an effective integrated school system has been well thought out (including consulting the associations overseeing vernacular schools). Getting rid of vernacular schools for the sake of national unity is completely preposterous (as evidenced above), and is akin to killing a fly with a sledgehammer

* Read it also at The Malaysian Insider, The Malay Mail Online, Malaysia Today, and Free Malaysia Today

Alvin Tan and the Freedom of Expression

Alvin Tan is no stranger to controversy. He gained notoriety as a result of his blog which contained his sexual escapades with then partner, Vivian Lee. Once the spotlight was on Alvin and Vivian, there was no turning back.

They took it up a notch by posting a photograph on Facebook with the comment “Selamat Berbuka Puasa (dengan bak kut teh… wangi, enak, menyelerakan)” [Happy breaking fast with bak kut teh…fragrant, delicious, appetising]. Adding insult to injury, the picture contained a halal logo.

There was no surprise when their asinine action gained the ire of many Malaysians. It clearly poked fun at the religious beliefs of Muslims, and is completely unacceptable in a multi-religious society like Malaysia

Many, however, have stood up and defended Alvin’s actions on the basis that he is merely utilising his freedom of expression, as enshrined in Article 10 of the Federal Constitution of Malaysia. Prima facie, that seems to be the case

Article 19 of the Universal Declaration of Human Rights (of which Malaysia is a signatory) guarantees that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”

The International Covenant on Civil and Political Rights (ICCPR) elaborated on Article 19 of the UDHR by stipulating that the freedom of expression may be “subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.”

The Parliament of Malaysia has passed certain laws (e.g. s.298, s.298A, and s.500 of the Penal Code, Defamation Act 1957) restricting the freedom of speech in Malaysia [as allowed in Article 10(2) and 10(4) of the Federal Constitution] for the purposes mentioned above

The freedom of speech does not translate into the right to say whatever you want. The freedom of speech/expression gives you the right to speak/express yourself responsibly. Failure to do so would then lead to criminal prosecution under the laws of the land

Fast forward slightly over a year later, it was reported that Alvin Tan is seeking political asylum in the United States and is already at the final stages

Political Asylum USA states that “a person can qualify for asylum, or political asylum, if he or she has a reasonable fear of future persecution, on account of race, religion, national origin, political opinion, or membership in a particular social group”

The website goes on to say that “a reasonable fear just means one need not prove conclusively that they will be persecuted in the future; only that they have a good reason to fear that it will happen.”

“Persecution means that the harm an asylum seeker is afraid of is severe enough to be considered a serious violation of one’s human rights”

The key element for a political asylum application is the reasonable fear of persecution on account of political opinion. Back to Alvin’s case, is he being persecuted because of his political beliefs? No.

Legal action is being taken against him because he violated his freedom of expression by unnecessarily messing with the delicate religious sensitivities in Malaysia.

The legal maxim “commodum ex
injuria sua nemo habere debet” is very much applicable to Alvin’s case. It basically means that a wrongdoer should not be enabled by law to take any advantage from his actions

The only reason Alvin is currently in the United States awaiting his final asylum hearing is because he took advantage of the kindness of the Malaysian courts. Alvin and Vivian were given back their passports for a limited time, in order that they may go to Singapore to film a documentary

Whilst in Singapore, Alvin acted mala fide by fleeing to the United States and applying for asylum there in order to escape the ramifications of his actions.  As a result of his somewhat brilliant manoeuvre, Alvin finds himself on Interpol’s wanted list

Furthermore, Alvin was recently quoted as saying, “If all else fails, I can easily publish more ‘seditious’ materials on my Facebook to taunt the authorities and get them to be hot on the pursuit of me again, therefore creating an even more well-founded fear of political persecution to bolster my asylum claim”

Days later he uploaded on Facebook a repulsive picture containing superimposed pig snouts on the faces of key leaders in Malaysia’s government, including the prime minister. Alvin is purposely pushing the buttons of the Malaysian government and using their response to support his claim for political asylum

The US court  hearing Alvin’s asylum application should definitely take into account the fact that he is a wrongdoer, and should therefore not be able to benefit from his actions.

It is trite law that ‘he who comes to equity must come with clean hands’ (D&C Builders v Rees) and that ‘he who seeks equity must do equity’ (Chappell v Times Newspaper). The legal maxims mentioned above further substantiates my point that Alvin should be sent back to Malaysia to face the music

If Alvin is granted political asylum for a non-political prosecution, this would set a dangerous precedent as it gives the impression that if a person has committed a crime, all he/she has to do is to run to another country and receive asylum there, thus freeing them from any consequences of their actions

If Alvin feels he is being unfairly charged, he can always countersue the Attorney General or the Government for malicious prosecution. After all, many academicians are of the opinion that the courts are the best protectors of citizens’ rights and fundamental liberties. Why not give this theory a shot?

* This article also appeared in Malaysiakini, The Malay Mail Online, Malaysia Today, and The Malaysian Insider