Criminals' Justice Down Under

My partner and I recently made a trip down under for some much needed getaway. Melbourne was our destination and the place is of great significance to me as my mother named me after the inspiring sight of the twelve apostles while travelling along the Great Ocean Road. Naturally, being a lover of winding mountain roads, we opted to rent a car.


(Me at The Twelve Apostles)

Before indulging in my critical nature, I would like to first deposit a caveat – that Australia is a great place to live in and Melbourne is definitely on my list of retirement homes for future consideration. The weather was amicable (at least at the time we were there), the country side is breathtakingly beautiful; Melbourne was vibrant (true only before 5pm), clean and the people are friendly (mostly). While it is not perfect – the most vivid examples being the utterly redundant hook turns in the CBD, the ridiculously expensive elevated highway and the obsessive compulsive customs control – but other than these, it is really difficult to not like Melbourne.

However, despite taking extra measures to ensure that I do not export my Malaysian driving standard along with me, I got a parking ticket and had the car towed away for obstructing traffic on the 3rd day in Melbourne. (This is a slightly better record than getting 2 speeding tickets on the same road on the 1st day I got my car in the UK)

Now, I’m not an unreasonable person, I think, and I fully accepted the responsibility for committing the offence as it was my negligence for thinking that parking restriction signs of tow away times are identical for both sides of the road. All in all, the $320 impound plus $119 fine burnt a gaping hole in our budget, but by the evening itself, I have reached the 5th stage of the grieving process and is coming into acceptance of the tragedy.

My acceptance was short lived as it quickly turned into anger after watching 2 consecutive semi documentary TV programmes on channel 7 – ‘Border Patrol’ and ‘The Force’. In the former, an Australian returning from overseas was caught smuggling cocaine at the airport, (enough coke to get him hanged many times over in Malaysia) yet he got off with a just a fine without jail time! (Can’t remember exactly how much, but in the region of $5k - $7k) In the latter, a reckless driver was flagged down by a police patrol car and he refused to stop over and the situation became a car chase, eventually being cornered by the police and arrested. Again, there was no jail time, he did get his license revoked for a year and was fined $800.

The disproportionality of my civil wrong penalty juxtaposed with the 2 criminal offences on TV is too gross to ignore. Presuming the impound for the guy who tried to avoid police capture was also $320, plus the $800 fine and that’s a 'grand total' of $1,120 only for committing multiple offences, both civil and criminal for reckless driving, speeding, breaking traffic lights and avoiding police arrest!

Now compare that to my $439 fine plus impound for parking during tow away time, the gross disproportionality of the two penalties are just beyond me, someone please send me back to law school, my logic cannot process the meaning of justice as understood by the Australians!

There is something gloriously wrong with the criminal justice system in Australia. I suppose decriminalising criminal wrongs and criminalising civil wrongs is what you get when criminals legislate.

LBF
October 2010

Happy Birthday Malaysia!

Malaysia faces daunting challenges in the roads ahead. The quest for a Malaysian identity still eludes us because after 53 years of independence, Malaysians still fail to consider themselves 1Malaysians.

This is hardly a surprise as many Malaysians who descended from migrant lineages still think like migrants, ever searching for that perfect home ‘elsewhere’, forgetting the fact that the foreboding environment that drove their ancestors to seek greener pastures (or any pasturing at all) is but a distant memory; shunning from the responsibilities of home improvements. But how can we blame them when part of our society seems to have memories and emotions stretching back further than they have lived, hell-bent on reminding the Chinese and Indian descendants for being sojourn visitors, living under the courtesy of the ‘Bumiputras’, and this courtesy justifies discriminatory policies. Even a man utterly lacking in internal morality would recognise that this logic is offensive to fundamental human dignity.

But then again, how can we blame ourselves for our warped sense of logic when we are forced to live in an environment of fear where any discourse on racial or religious issue can potentially be seditious. We have been made to believe that Malaysia is unique simply because we have a multi-everything country and this multi-everythingness requires us to do things ‘our own way’, and apparently ‘our own way’ consists of, amongst others:

1. Discriminatory policy,
2. Laws criminalising the questioning of discriminatory policy,
3. Constitutional provisions allowing laws criminalising the questioning of discriminatory policy,
4. Laws preventing certain provisions of the constitution from being debated even in the parliament
5. Constitutional amendments that defeats the purpose of having a constitution
6. Declarations of emergency that seemed to last forever

From what I can deduce, our government seemed to think that cultivating a culture of fear actually does us good in protecting ourselves from our uber sensitive savage hidden within that is ready to surface and throw a fit of violence at any hint of racial or religious discourse.

On the flipside, this identity crisis can be looked at as an inconvenient teething phase that our country had to experience before maturity. While the collective memory of Malaysians extends far into our shared past, the latest incarnation of Malaysian society is but half a century old. Emergent nations throughout history have had various identity issues to iron out, some lasting centuries before resolution, others persist as irreconcilable conflicts.

The timing for our identity crisis also seemed to point to the fact that Malaysian society is experiencing a transition, a metamorphosis into a more mature form. Maslow’s hierarchy of needs provides an insight into our current transformation – the rise of the middle class, the shift in our collective consciousness beyond the mundane and into the abstract, the rising awareness of civil, political and individual rights – all points to a society in transition. This transition is an important milestone in the history of our nation, a milestone we must approach carefully and thoughtfully because we are heading towards a society that treads the fine balance between social order and social justice. A failure to embrace the incoming tides of change would result in tipping the balance away from social justice, creating a state of order through fear and oppression.

In the spirits of festivities, I earnestly hope that Malaysia would find the courage to balance the scale of order and justice, delivering us from a society of compromise to a society of true tolerance.

Happy Merdeka, happy birthday and selamat Hari Raya Malaysia!

Lua Bo Feng
September 2010

Part three "Solidifying the Soil"

The Legal system of a civic society is its very lifeblood. It permeates every corner; every aspect of the life of its citizen, forming a web where every action whether public or private invariably falls within its jurisdiction. It prescribes limitations, in which norms of behaviour can be regulated to produce a harmonious and predictable existence; it also prescribes rights and freedom in which the individual dignity of human existence can be balance against the ambitions of the able and powerful. In this sense, the legal system is both the sword and the shield of the society – towing the line of predictable behaviour when needed, casting down its wrath onto those who seek destruction and defending those who are in need when summoned. The wielders of the law need to tread the fine balance of applying the multifaceted functions of law to the fit the right circumstances.

Hence, for the legal system to perform its function fairly and appropriately it needs to be applied fairly to all of its subjects. This equitable application of laws to all is fundamental to the health of a legal system because the sword cannot be wielded only by the powerful and the shield cannot falter in defence against intrusion. Equality before the law is thus the most prominent feature of a legal system that manifests the rule of law. Most scholarly elucidation on the concept of the rule of law seemed to agree on this point, because a legal system that does not apply equally to all would undoubtedly be wielded by those who are powerful, against those who are not. This is not rule of law, this is rule by men.

But the law cannot isolate itself from the vicissitudes of reality, and men no matter how noble the aspiration may be, does not exist in the equilibrium of ability, aspiration or condition. Some were born less able than others, some were born into environments more conducive for adaptation, some chooses path that leads to irreconcilable differences and others were empowered for the very fact of their condition. How can the law reconcile the many facets of its function to suit the many facets of reality?

The key word here is objectivity. As Lord Bingham in the 6th Sir David William Lecture puts it:

“The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.”

What then are objective differences? Take for example a person born with a disability that binds her/him to a wheelchair for the rest of her/his life. Special provisions in the law that protects this person in areas like access to public transports, employment, economic opportunities, and public amenities are objective differences because a disability in such environments puts this person in a disadvantage that s/he cannot alleviate; On the other hand, if the law protects this person in guaranteeing higher pay grade, access to higher education, health care or land ownership, these would be non-objective differences as being bound to a wheelchair does not necessarily disadvantage the person in such areas.

Needless to say, differentiation in law based along racial and religious lines are mostly non-objective in nature. Much of the discussion on economic disparities in this country is flawed in to its very core because the subject matter that underlines the debate is drawn along the misconception of ‘race’. Take a common theme – that the economic participation of Malays being disproportionately low, such conclusion is drawn because certain sector of society were deemed ‘Malay’ while others were ‘lain-lain’. Now assume that race did not exist and the divide in Malaysia is drawn along religious lines, the same study would then return a different result, say maybe that economic participation of Non-Muslim becomes disproportionately high compare to the ratio of Muslims. Should we then provide special protection in access to economic opportunity for Muslims? To take it further, if the divide is drawn along urban/rural, height or eye colour, should we then provide special protection for the rural, the vertically challenged or the light colour eyed? This is absurdity of the highest order!

While such logic is blatant, it is most often lost in public discourse regarding our distinct kind of affirmative action. Critiques usually highlight implementation deficiencies, failing to review the merits, or lack thereof, of the impugned policy. In the words of Azmi Sharom taken from the preface to Farish Noor’s ‘What your teacher didn’t tell you’:

“We have a society which is supposedly so sensitive that people walk around like damned exposed nerves.”

Indeed, being sensitive in Malaysia is elevated to such a high moral benchmark that even our courts interpret ‘public order’ so narrowly as if Malaysians are savages ready to work themselves into a frenzy of blood thirst at any hint of discord. I beg to differ on such low opinion of my fellow countrymen. Elements of extremities exist in any society but when the legal institutions cater to such extremities, it sends a message of acquiescence towards such behaviour, skewering the moderation in our societal norms, damaging the collective psyche of the nation.

Such is the influence of the legal institution in a civic society where the boundaries between morality and legality are blurred. Whether it is appropriate to distinguish between the two becomes immaterial, because the legal system is a safety net where the subjectivity of morality can be organized through the objectivity of the law. But it is also this very fact that discriminatory laws inevitably instil in its subject the illusion that it is morally just to discriminate, warping instinctive notions of justice, reducing evil to a mere ‘implementation deficiency'.

Even those who support our kind of affirmative action cannot deny the psychological cost we continue to pay for our discriminatory laws. These race based protective policy turn legal provisions are not double edged swords; they are swords that strike at both the protected and the discriminated. On one hand, they damage the collective confidence of the protected, whether needed or not, serving as a painful reminder that their success will be perceived as harvested, instead of earned; on the other hand, it carves a deep ravine of dissatisfaction on the side of those discriminated, seeking solace only in self elevation.

Equality before the law is a concept distilled from the wealth of (and mostly painful) human experience in civilisation building and thus cannot and should not be taken for granted. It legitimises the usage of law as a social ordering mechanism and empowers the very dignity of which a human being, whatever her/his condition maybe must possess in order to be truly human.

Part two “Deep Canyon and Loose Soil"

As the nation witness the March 8th political tsunami in merriment or otherwise, I was far removed from either. While the maturation of Malaysian political climate manages to carve a gratifying smile on my face, it cannot wipe the frown of deep anxiety from my eyebrow; for I take no side in this mêlée.

The maturing of our political climate brings about good tidings, as the period following the tsunami exposes rot and decay that has long plague our country deep into its very foundation. But two years on in the Hulu Selangor by-election 2010, it is evident that our politics is still as ‘pariah’ as ever. Alcohol inclination, fake degrees and money politics couched in legal terminologies eclipsing real and productive policy debate, as if candidates are contesting to win ‘Malaysia parliamentary idol’ and moral worthiness determines the kudos. But as every scholar of law knows all too well, that the moral worthiness of our leaders is nothing but hollow moot, because absolute power corrupts absolutely, therefore a system that places no faith in the personalities of the wielders of power, be they honourable or otherwise is the only system that can endure. Maybe the time is ripe for us to depersonalise politics. But this is besides the point, I have other pressing concerns.

The reason for my anxiety however, even as my peers cheered to the day they never thought they would live to see, is because despite the tsunami, we have come no closer to solidifying the grounds in which our nation building project must rests on. We have made great strides in building our civilisation, but survey the landscape, the chasm remains, deep and irreconcilable as ever. We have built civilisations on loose soil.

The problems that plagued our governance will continue to haunt the very essence of this land as the answer to our problem is to incorporate the separate civilisations built on isolated plateaus into a vast network where separate cultures could intermingle and assimilate into a greater, more diverse whole. We need to build bridges instead.

And as stated in the preceding chapter, the two pillars for our bridge had already been ascertained:- A new collective national consciousness built on infusing diversity; and a legal structure founded upon the tenets of preserving it. But building bridges perched high above the chasms on loose soil spells disaster. First, the soil must be solidified. To achieve this end, we need to descent into the forbidden catacombs and bring to light legacy of our civilisation deemed too delicate for public dialogue. We must muster the courage to self reflect and self critique to come to terms with our flaws.

But a nationwide self evaluation effort is not only intellectually demanding, but the obstacles are aplenty, as the “we” today is a fragmented concept, and self reflection done in sectarian approach drawn along racial and religious lines will further the chasm between the many “us” in existence. It cannot be denied that this chasm has its root as a by product of western imperialist’s effort at asserting colonial ambitions, but it doesn’t change the fact that this chasm is now a reality, in fact more exaggerated and more destructive than ever; and I am a product of this chasm. Born, bred and fully adapted to its vicious ecology.

But subconsciously, ‘we’ do not want this bridge to be built because its construction signals the breaking down of the bubble of our existence, our comfort zone, our bastion of identity. Our yearning for the safety of our herd will further tear us apart, keeping our heads low in grazing for survival, ignoring the signs of storm brewing in the horizon. In an asymmetrically divided society, the choices left for minorities will be emancipation or forceful assimilation.

On the flip side, safety in numbers does provide a sense of security, albeit a false one, because the winds of change is imminent, and it brings with it the seeds of diversity that has taken root in continents far away, seeds that had weathered the vicissitudes of competition and survived. They will overwhelm our sheltered ecosystem that had rejected the competition of diversity. In our quest for purity of the isolate herds, we have essentially removed our edge of competitiveness.

But why have we become so blind, so complacent, so arrogant? We have our leaders to thank for this – the alpha males of the various packs. These creatures are not in want of intelligence, in fact, they are the first to sniff the breeze of change before we even rear our heads from grazing for survival. But they are determined to keep the plateau separated by the chasms because they have built an intricate social hierarchy based on the current ecology, and change threatens this balance in which their entire existence relies upon.

They have resorted to exaggerating our differences in maintaining the status quo. They have conveniently borrowed the overly simplistic social stratum of the Victorian colonial powers, to neatly divide us into the Malays, the Chinese, the Indians, and the ‘lain-lains’. They nourish this division by polluting our airscape with ‘pariah’ slogans arousing primordial sentiments of fear and anger; corrupting our consciousness with primeval concepts like racial superiority/ownership, religious pre-eminence and absolute moral authority. Even fundamental concepts of a modern democratic state like the Social Contract Theory had been hijacked and vulgarised to suit these primitive models.

This overplayed tune has worked well for most part of our modern history as the sense of belonging to a macro socio-religious groupings provided an easy way out for our soul searching endeavours and provided a ready template of answers for differences innate in us that we find so difficult, or unwilling to comprehend. But such sentiments are doing us harm, and it has to stop.

It is of course not too late, but the construction must start now. Individuals in various herds are beginning to sense the impending danger, and have raised their heads above the comfortable mundane. They have understood that embracing diversity breeds competitiveness and only a healthy ecology can weather the coming storm.

“It is not the strongest of the species that survives, nor the most intelligent, but rather the one most adaptable to change”

If not by law, then What?

This is an article written during the height of the “Allah” controversy, and the subsequent burning of churches in its aftermath.
As the country was frantically torn with diverging opinions, I was in Tawau, far removed from any hype of religious tension, observing Muslims, Christians and practitioners of a myriad of other faiths going about their daily business seemingly unscathed from the fervour in West Malaysia. As a scholar in law, I cannot deny the urge to vent my disagreement with the wanton demeaning of the role of the judiciary by both our ex PM and current DPM.
See Dr. M’s “Allah controversy cannot be resolved through law” in the Star on the 6th of January
http://thestar.com.my/news/story.asp?file=/2010/1/6/nation/5419866&sec=nation
And then Muhyiddin Yassin joined in the bandwagon all the way from Oxford on the 15th of January in the The Borneo Post http://www.theborneopost.com/?p=4715

Below is a short excerpt from The Borneo Post:

OXFORD: Deputy Prime Minister Tan Sri Muhyiddin Yassin said he would not allow the issue of using the word ‘Allah’ by non-Muslims in Malaysia to recur in the future.

He said (former prime minister) Tun Dr Mahathir Mohamad once mentioned that the legal process was not the best solution to a problem, and there could be other avenues.
“I agree to a certain extent. What is important is to handle the situation wisely,” he said when answering a question from the floor after delivering a lecture entitled ‘Islam and Critical Challenges in multi-religious Malaysia’ at the Oxford Centre for Islamic Studies (OCFIS) here.
“Things (religious tension and church attacks) have of course happened but we hope they will not recur in the future,” he said.
Muhyiddin said he had been receiving quite a number of messages from non-Muslim friends in Sabah and Sarawak who said there were Christians who felt that things would not have happened in the first place “if we, the Christians, would just not use the word ‘Allah’”.
“This is because in Malaysia and in many parts of the world and in all Muslim countries, Allah is the only God for Muslims. We cannot equate Allah to god in the other religions and even in Christianity, which believes in the concept of the Trinity.
“There are differences, I don’t want to go deep into that issue. I think we have to manage issues at home our own way because we have our own way of life, culture, traditions and respect for one another which are our strengths...

If not by law, then what?


Deputy Prime Minister Muhyiddin Yassin, in his speech at OCFIS in Oxford, mentioned that he agreed, to a certain extent with the former Prime Minister Dr Mahathir Mohamad that legal process was not the best solution to a problem, and there could be other avenues. Adding that what is important is to handle the situation wisely.

This statement seemed to imply that resorting to legal process in disputes involving sensitive matter is “unwise” and that there must be better alternatives to resolving interfaith conflicts. Statements like these are often dangerously overlooked as words of wisdom, and if not, at the very least – harmless. And in a nod to clichés, Muhyiddin reasoned that: “there are differences... I think we have to manage issues at home our own way because we have our own way of life, culture, traditions...”

The danger referred above lies in the absence of an ‘alternative’ to legal processes in his statement. Culture and traditions are not dispute resolution mechanisms. In essence, culture and traditions are built around and supplemented by believe systems; hence, culture and traditions are no more than a set of social practice, bolstered by a network of belief system and norms, made exclusive by the very fact that it can be distinguished from other sets of social practices. Looking inward for dispute resolutions through culture and traditions are bound to polarise the differences inherent in the different sets of social practice which is the cause of the conflict in the first place.

Similarly, tolerance itself is not a dispute resolution mechanism; it is more of a “dispute avoidance mechanism” and it is a point to note here that we often confuse submission for tolerance. Simon Weil, a French Philosopher stated that:

“Oppression that cannot be overcome does not give rise to revolt, but to submission”

Tolerance as defined by the Collins dictionary as: “the quality of allowing other people to say and do as they like, even if you do not agree or approve of it.” While submission or the root word- to ‘submit’ is defined as: “to accept [something] or to undergo it reluctantly, for example because you are not powerful enough to resist it.” With this in mind, resorting to tolerance as a dispute resolution mechanism (while often hailed as a cornerstone of which the foundation of the country is built upon) is unreliable and unpredictable as factors such as demographics, level of sensitivity of the issue at hand, volatility of the political climate, etc... Makes it difficult to ascertain whether Malaysians are truly tolerant (in all issues or particular issues only), indifferent, or worst still were we merely prone to submission?

For those who attended Kamarul Hisham’s lecture at HELP University College on the 14th January 2010 would find familiarity in the following quote by Jackson J in the US Supreme Court in West Virginia State Board of Education v. Barnette (1943):

“... Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing orders.”

Indeed, the general sentiment of suspicion towards legal dispute settlement is symptomatic of the traditional Asian society ‘world view’, as Hilaire Barnett aptly stated:

“In traditional Oriental society, Western preference for law is an alien notion”

The key word however, in the above quote is traditional. Administration of justice in a modern administrative state needs to achieve consistency, predictability and most importantly, impartiality. While tolerance and mutual respect are moral benchmark for all to aspire to, it cannot be expected to dispense with justice consistently and impartially. The rule of law (Kedaulatan Undang-undang, the 4th principle in the Rukun Negara) in all its complexity essentially boils down to a very simple concept: a country governed by due process of law, and not by discretion, personal believes or personal conviction.

A final point to note here is that, legal process as a dispute resolution mechanism is not restricted to court room litigation only. There are a myriad of dispute resolution mechanisms that are ‘legal’ in nature without having to resort to the court room: inquiry, mediation, conciliation and arbitration are but some examples of legal dispute resolution mechanisms that does not involve the court room. Utilizing legal process to resolve dispute is best seen as a mindset, an approach that respects the objectivity of law and utilizes it, in whatever form, to resolve conflicts, whether between individuals, between individuals and the state, or even between the various institutions of the state. Be it sensitive or not.
But a constitutional issue, if not resolved by legal process, then by what?

Lua Bo Feng
January 2010

Part 1 "The Chasm"

Understanding politics in Malaysia is an arduous affair. The ‘multi-racial’ and ‘multi-cultural’ version of Malaysia portrayed in various popular media literature belies the intricacies, complexities and sensitivities of our shared historical or contemporary socio-political narratives. This is as yet to take into account the wilful distortion, misrepresentation and outright perversion of these narratives through systemic indoctrination by institutions of power, simplifying and reducing our very complexities into neatly organised socio-racial categories - ripe for exploitation in a society where alienating the ‘others’ produces profitable political outcome. This oversimplified versions of ourselves not only belittle our shared history and identity, it robs us of our boundaries for tolerance; Reducing our collective imagination to a pale shadow of but a few colours, destroying the diversity of culture, religion, language and gene pool that interweave this landscape since the beginning of its history.

We nitpick on our differences, finding ever smaller taxonomy to squeeze into, simultaneously amplifying its significance. From heavily entrenched categories like race and religion, to smaller subdivisions like linguistic group, tribe/clan faction, peninsular/Borneo dichotomy and countless more just to name a few. While the necessity or implications of such arrangement leaves significant room for disagreements, it cannot be denied that this national obsession has completely consumed our collective psyche. Hogging up much needed grounds for constructive nation building enterprise, forcing us into fruitless impasse every corner we turn.

The landscape of Malaysia is one scarred with veins of chasm, an island separated by plateaus of largely exclusive ecosystem. Each evolving its own micro ecology; minor apex predators carving out their little dominion, oblivious to the shifting macro continents inching ever closer and the winds of change that beckons. The culture in this land is that of insecurities, finding solace in building walls instead of bridges, each community seeking to define itself by what it is not, instead of what it is. Emphasising the differences and exaggerating the weaknesses of the ‘others’, we amplify the exclusive elements in our identity and devalue those that are inclusive.

Malay-Muslim first, Malaysian second

Chinese first, Malaysian second

Indian first, Malaysian second

Why is it so difficult to be Malaysian without throwing in extra identification markers? Would we lose sight of who we are without those markers? Is the common denominator so meaningless as to be rendered void without those markers? Or are we asking too many questions before we even embark on our quest. “The journey of a thousand miles begins with a single step” – Confucius. In our case, let us start with two:

Firstly, a thorough re-reading of our historical documents, both ancient and recent, is required to reconstruct a collective national consciousness. The numerous effort injected into rediscovering our shared past by historians, social/political/legal activist and commentators most cherished would hopefully unearth charms buried in our past to shine a way at our future for the current generation to build their aspirations upon. But digging into our past would certainly unearth skeletons of resentments that we must confront with courage and solidarity, because these are the shadows of our deeds, and they will continue to haunt us and keep us from true deliverance. We must come to terms with our demons; liberate ourselves from the shackles of distrust and ignorance in order to advance as a whole, complete nation.

Secondly, a thorough review of our legal documents, both fundamental and derived, is necessary to restructure our civil society based on values of inclusivity. This must be done to reflect the country as a focal point of divergent versions of truths, and when these realities collide; tolerance is the only tenet capable of cushioning the impact. But tolerance must not be confused with submission, as the latter involve a certain degree of reluctance and surrender – the first step towards resentment. True tolerance is not an exercise of concession or compromise, but liberation of the mind from assumption of popular truth and of universal morality. This must be reflected in our legal documents.

In an asymmetrically divided society, tolerance for minority sentiments comes as easily as submission to majority repression.