Dear Ministers, Your Reasonings Are Flawed

            Just when most Malaysians could breathe a sigh of relief that finally people who have the right knowledge of the law is making the headlines again following the decision of the Court of Appeal in the UKM 4 case, our brilliant and entertaining ministers in the PM Department had to prove us wrong all over again. In the latest instalment of “How I Met My Silly Politician”, the two ministers were commenting on the issue of homosexuality and how it was considered to be unconstitutional by both men who had very interesting and “creative” arguments in which they hope (I assume) will mislead the public into thinking that being a gay or lesbian is unconstitutional. That in the event you are torn in between both sexes, you SHALL flip a coin and choose one sex because the constitution said so. I’m sorry Mr. and Mr. Minister, but I’ll have to say that both of the arguments are flawed.

            The first minister, who is in charge of Islamic affairs and Jakim stated that being gay is unconstitutional by virtue of section 377(a), (b), (c) and (d) of the Penal Code which relates to carnal intercourse against the order of nature. “Whoa!”, “wa lau eh” and “fuyoh” would probably be a response from any lay men. However, anyone who has a legal background would not be perplexed upon hearing such silly argument because in order to determine if something is unconstitutional, you’ll have to rely upon the supreme law of the land, the Federal Constitution and not on the basis of an ordinary law such as the Penal Code. If we were to follow in the Minister’s argument based on the Penal Code to determine the constitutionality of being a homosexual, it would mean that anyone has the right to be gay so long as he/she does not commit any carnal intercourse as provided in section 377. Besides, it also means that a he can grab another he’s testicles and make out affectionately in public with each other as long as one of them does not stick his penis into the other’s anus. According to the Minister, such a relationship is permitted under the law. Being a disciple of the law, I’m afraid I can’t follow his argument.

            True to the song “Two Is Better Than One” by Taylor Swift, the de facto law Minister came to the rescue in order to divert the attention from the donkey (sorry but I can’t help to say it) above. With the spot light upon him, the Minister raised Article 3(1) of the Federal Constitution which provides that “Islam is the religion of the Federation but other religions may be practiced…..” and claimed that an act which is against Islam is deemed to be unconstitutional. With not all due respect to the Minister, I would like to humbly reject his argument based on two grounds. Firstly, that Malaysia is a secular state and thus, the constitutionality of any law should be measured against the Federal Constitution and not any Islamic law. Subsequent to Independence, Tunku Abdul Rahman made an announcement to the Parliament that “I would like to make it clear that this country is not an Islamic State as it is generally understood, we merely provided that Islam shall be the official religion of the State.” Alternatively, in the landmark case of Che Omar b Che Soh v PP, Salleh Abas L.P. held that Malaysia is a secular state. This goes to show that the Federal Constitution is the supreme law of the land instead of Islam. Secondly, an act should not be deemed to be unconstitutional by virtue of it contradicting with the religion of Islam. There are many acts which are against the values of Islam such as gambling or consumption of alcohol or pork but these acts are not regarded as unconstitutional. Laws which govern the Muslims should never be imposed upon the non-Muslim.

            Nothing in the constitution denies anyone of his or her identity based solely on their sexuality. Notwithstanding, what is actually provided in the constitution, more specifically in Article 5, is the right to life and this ‘life’ should not only be construed in the narrow sense but also the right to a ‘quality of life’ which is free from any discrimination based on one’s sexuality. What would be unconstitutional in my view, is when we deny this minority group to be who they are and discriminate or marginalise them. In addition, it would also be "unconstitutional" for a politician to mislead the public on the law and to issue a sweeping statement without ascertaining the validity of his statement. Now that you know the truth and nothing but the truth which includes knowing the fact that the tax-payers’ money is spent on such baboons, I’d like to table a motion (not to pass motion but) to have Lord Bobo of LoyarBurok to take over their places. Besides, he’d only cost us bananas. 

Unconstitutionality of UUCA: A Victory for Varsity Students

Note: The following post was meant to be my answer script for my English “mid-semester break distraction” homework. What better way than to slug it out through a no-holds barred approach?

          The recent Court of Appeal’s 2-1 majority decision to declare Section 15(5)(a) of the Universities and University Colleges Act 1971 (UUCA) unconstitutional should not only be viewed as a victory for all local university students but should also be rejoiced upon by all Malaysians. The unconstitutionality of the said provision signifies that it is no longer applicable and cannot be enforced in our country. Section 15(5)(a) of the said oppressive Act reads “No student of the University and no organisation body or group of students of the University which is established by under or in accordance with the Constitution shall express or do anything which may reasonably be construed as expressing support for or sympathy with or opposition to any political party whether in or outside Malaysia ”. 

            This declaration made by the court that the said provision is null and void has been a long time coming as it violates the freedom of speech and expression which is provided under Article 10 of the Federal Constitution which is the supreme law of the land. According to one of the judges who decided in favour the UKM4, Mohd Hishamudin Mohd Yunus J, he said “Freedom of expression is one of the most fundamental rights that individuals enjoy. It is fundamental to the existence of democracy and the respect of human dignity.” 

       Following the learned judge’s argument, it is absurd to impose such restrictions upon university students who should be given the avenue and encouragement to broaden their mindset and be critical on the various issues affecting not only the country but also their lives. It is even more absurd to come to think that someone who is working in McDonald’s or a student sitting for PMR has more rights to express their views compared to a law student in University of Malaya where such freedom (although not absolute) has been guaranteed and enshrined in our Constitution. 

         Alternatively, as highlighted by the Court of Appeal, section 15(5)(a) directly contradicts with Article 119 of the Federal Constitution which entitles anyone who has reached the age of twenty-one to register as a voter and exercise his or her rights under the country’s democratic system. Considering the fact that anyone who has attained the age of twenty-one and is pursuing his education in a local university is allowed to vote, this infers his support towards a particular political party which is a form of expression and participation in politics. Thus, it is silly that section 15(5)(a) disallows university students to express their views on their political stand. What doesn’t make sense is that anyone who has attained the age of majority is allowed to get married, start a family, obtain a driving licence or even be a Prime Minister but their political views are bound by the UUCA. 

           According to the Minister of Higher Education, he said “The main goal of education is to encourage students to think constructively and critically without any restrictions. By just toeing the party line, the student is merely having other people's opinions, not his own.” In my humble opinion, there is no way I can agree with the statement made. Firstly, the statement made by the Minister is in direct contradiction itself. How are university students supposed to think constructively and critically without any restrictions when the provision is restrictive in nature? With regards to his second sentence, it is of grave disrespect to the thousands of local university student out there to say that we are not able to form our own opinion. Judging by the issue of brain-drain which is affecting our country, I believe Malaysian students are far more than capable of having their own opinion. The problem is and has always been due to the prohibition under the Act. 

           It is time for the legislature to act upon such declaration made by the Court of Appeal and repeal the said provision although the Government may appeal to the Federal Court to overturn the decision. This ruling should be seen as an opportunity for the legislature to do the right thing. Even the dissenting judge in the case said in his judgment that “by way of obiter, Parliament may wish to consider an amendment to section 15(5) in particular and the whole Act in general so as to bring about a repeal or review thereof.” The decision to repeal the provision should not made be due to the pressure of certain parties who might have their own agenda or to protect their students from ‘unwanted’ distractions but should be made solely based on its unconstitutionality. 

        This landmark decision was a milestone in the sense that it has indicated that our courts are no longer afraid of confronting constitutional issues rather that side-stepping it (which they have done so in many previous occasions) and uphold the notion of constitutionalism in our country. Although it is rather optimistic (and too early) to say that our judiciary had taken a paradigm shift and exercised a certain degree of judicial independence in addressing such issue, nevertheless, there is at least a glimpse of hope for all Malaysians that there still exists brave and insightful judges in our judiciary such as Mohd Hishamudin Mohd Yunus J and Linton Albert J to take over from the likes of NH Chan J. 

        In spite of what has been said, what is evident from this case is that there are judges (though not many) in our courts who understand and appreciate the idea of constitutionalism and rights to fundamental liberties, there are determined lawyers who are willing to argue for this principle and there are students who are brave enough to stand up and fight for their rights. Although the government might appeal against the decision and who knows, the Federal Court might overrule it but for now, let us rejoice at the historic judgment. 

Back In Black

          I’d be lying if I were to say that there wasn’t a moment in my four months semester break where I was actually anticipating for the start of the new academic year. Constitutional law, J.K.O., leading the LawNite troopers and also finally shifting out of 1^st college into my Shangri-la really excited me. What I didn’t know was that there was an element of misrepresentation in my vivid imagination where I had overlooked the fact that there were hundreds of cases to be read up for each subject, rushing of assignment deadlines, very vocal juniors to orientate and the prospect of main masak-masak for my dinner. Oh yes. Damn I was eager to get back!

          The good life began with Orientation Week 2011/12. After being picked on by the J.K.O.s as a freshie last year, I was definitely out to get my revenge successor. The Orientation Week is traditionally conducted by the Jawatankuasa Orientasi which is made up of 2^nd, 3^rd and final year seniors. Personally, this is an activity where a majority of the students would want to join maybe because of the exclusivity or professionalism which the juniors had witnessed when they were ragged orientated in first year. The Men In Black suits coupled with the ice-cool attitude and poker face was the theme of the week. First day of orientation as a J.K.O. was an unforgettable feeling. Although we had the upper hand of being the predator rather than prey, I was really nervous to meet the juniors for the first time. Heck! Imagine what would’ve happened if you were to slip while walking macho-ly or had forgotten to zip your pants and a junior pointed that out to you? %$#*$##@! Talk about freaking each other out juniors! Phew. Nevertheless, what really impressed me most about them was how vocal and rebellious they were which might be counter-productive if they are unable to draw the fine line between being vocal and being disrespectful or showing-off. At the end of the week, it was worthwhile to wake up at 6.30a.m. daily and being a steam chicken soaking up the heat while wearing blazer just for the sake of ragging getting to know the juniors.

The Men (and Ladies) In Black. Owh yeah baby!

Muahahahaha.....

          Then there’s the pleasant “headache” of organising the most glamorous and memorable LawNite the faculty has witnessed. Just to enlighten those who are oblivious to LawNite, succinctly, it is an annual dinner attended by lawyers and academicians, staffs and students of the faculty. It is a pleasant “headache” because it allows you to learn through the hard way on how an organisation is being run. From understanding and approving the budgets to putting up with the university administrator’s bureaucracy and “efficient and friendly” service, there’s more to it than just merely managing your human resources when it comes to being the director. Fortunately,  with a group of creative, exciting and zestful members along with the continuous support of the Law Society, it just makes my job that lil’ bit easier. Oh, did I mention that they are also unbelievably talented too? I guess only time will tell how successful it will be this year. *fingers crossed*

          On the academic “menu”, the subjects this year have been rather interesting compared to last year’s which is why I guess there isn’t any temptation to doze off. For appetisers, there’s Criminal law cases to cater for the weekly CSI dramas followed by soup of the day, Employment law which serves a healthy dose of Common law cases for you to memorise and regurgitate. Then we have the main event, the entré Constitutional law dressed with current issues such as the implementation of hudud law, repeal of ISA and the recent Court of Appeal decision on the UUCA to complement the subject. As for deserts, there’s the interesting and debatable issues in Public International law and last but not least, the “dry” and technical Land law which must be cooked “very well done” (you’ll have to attend Land law lecturers to understand this term). As for tutorials, being able to work closely with Professor Khaw Lake Tee who happens to be SUHAKAM Commissioner and the closest thing to “Twin Cities” from Real Steel for her ability to advocate a case from different perspectives, is just an added bonus having been able to experience the same brain-orgasmic effect of attending Prof. Norchaya’s classes.


          Apart from the roller-coaster experiences above, life’s been a lil’ less merrier without the “hostile” mak ciks at my previous college’s dewan makan and the “tele-chubbies” who have been shipped to America and South Korea albeit the American version will be back sooner and fatter. *hoping for souveniers* In a nutshell, life’s been better this year if you don’t consider the four assignments, two test and one disgusting housemate which I’ll have to put up to. Let’s just hope that my next post would not be made some three months later.  

"Footprints"

Note: At a time where I began to question the existence of God in my life, I stumbled upon an old piece of note hung at a wall while I was rushing to bind my Criminal Law Assignment. Although there’s still a possibility of me being an Atheist, but you just can’t help to think that miracles don’t just happen by itself in life. Here’s the note which got me questioning all over again:

                One night I had a dream…I dreamed I was walking along the beach with God and across the sky flashed scenes of my life. For each scene, I notice two sets of footprints in the sand, one belonged to me and the other to God. When the last scene of my life flashed before us I looked back, at the footprints in the sand.

            I also noticed that at times along the path of life there was only one set of footprints. I also noticed that it happened at the very lowest and saddest time of my life. This really bothered me and I asked God about it.

            “God, you said that once I decided to follow you, you would walk with me all the way, but I noticed that during the most troublesome time in my life there is only one set of footprints. I don’t understand why in times I needed you most, you would leave me.” God replied, “My precious, precious child, I love you and I would never, ever leave you alone during your times of trials and suffering.”

            “When you only see one set of footprints, it was then that I carried you.”