Food For Thought


By Marina Yusof, Advocate & Solicitor


COURT JURISDICTION

We Malaysians are living in a country with Islam as the official religion and freedom of worship for all other religions. Our rights are clearly spelt out in the Federal Constitution. All matters pertaining to religion are within the jurisdiction of the Syariah Courts. In Islam when a person makes an accusation of any sexual offence against another, he must produce at least four witnesses who actually saw the commission of the offence with four pairs of eyes. Why did the Public Prosecutor not proceed with the "sodomy" case under the Syariah Courts? Was it because he did not have any witnesses and he could never have succeeded under the strict degree of proof required and spelt out in the Quran? The case would have been thrown out and the accusers would have had to receive 80 lashings of the cane (Al-Quran 24:4) Is it not strange that such offences have never been brought to the Civil or Criminal Courts before this? Even the choice of the section under the Penal Code is questionable.


COMPLAINANT IS PUNISHED

If Munawar and Sukma are the complainants, why were they beaten and tortured and asked to plead guilty and sent to prison? If their pleading guilty is as a result of "repentance on religious grounds" as was pleaded by their "counsels" in mitigation why were they not brought to the Syariah Court? Prior to their detention, they never made any complaint or lodged any police report against Anwar or against anyone. They were not informed of the nature of the charges against them when they were detained. They were not given access to their families or lawyers, but were suddenly produced in Court looking dazed and confused, and under heavy police guard. If they are supposed to be the "aggrieved" party allegedly involved in the "act of sodomy" why is it they are the ones serving prison sentence? Given the "speedy" manner in which the case was conducted and the confusion which ensued, the Magistrate should have investigated the case further and postponed the sentencing to a later date after having had the accused undergo a complete medical check-up and being fully satisfied that the plea is genuine. The Magistrate can voluntarily request for the Review and to clear any doubts that have arisen, or a Judge of the High Court has the right to recall the case for Review.

Anwar made a police report against the writer of the book "Fifty Reasons why Anwar cannot be a Prime Minister". The writer had earlier revealed the names Daim Zainuddin, Sanusi Junid and Aziz Shamsuddin as the ones who had asked him to write the book but no investigation was carried out against these people. Instead, Anwar, the complainant is investigated against and detained under the ISA. What kind of law are the authorities administering in the country today?


ROLE OF THE BAR

The manner of the appointment of the two lawyers by the police and Public Prosecutor to act for the two accused is wrong. The Bar Council should conduct a full inquiry on this matter immediately, and if they have breached professional ethics, should have them disbarred or have their licences revoked or suspended. Such people should never be allowed to practice at the Bar as they tarnish the image and integrity of lawyers. The Bar Council must take immediate action against them to prevent a further miscarriage of justice and to ensure that those who make genuine police reports are not being persecuted and punished instead of the guilty party.


POLICE BRUTALITY

When I was serving as a magistrate in 1965 there already existed complaints from accused persons that they had been beaten up by the police while in police custody. I would have thought that after more than 33 years the situation would have changed for the better but it seems to have gotten worse. Even at the lower levels especially in the villages, the police are under the impression that the minute they arrest a suspect they have a right to beat and torture them to get a confession or information. The Judiciary and the Legal Profession, the IGP and the top personnel of the Police Force have a duty to re-educate the public and their personnel to the basic rule of law and human rights that the minute a person is arrested nobody can touch a hair of his head or harm him in any way. The method of instilling fear into the people by these illegal detentions, brutal beatings and torture mentally or physically, must stop immediately.

As for the beating and torture of Anwar Ibrahim while in police custody, Mahathir as the Home Affairs Minister and Rahim Noor as the IGP must take full responsibility for what happened and ensure that it will never occur again whether on Anwar or any man in the street. It is not likely that anyone can go into a place of top security and beat him up without prior approval and knowledge of Mahathir and Rahim Noor. I doubt if an ordinary policeman would dare to touch even a hair on his head. If the IGP himself did the beatings on Anwar as quoted by the Straits Times today then he must resign immediately otherwise the integrity of the Police is at stake.

Anwar was not an ordinary person. Only less than a month before that he was the Deputy Prime Minister and Finance Minister having served the country for over two decades having high esteem in the eyes of the world. Whatever his shortcomings would have been vetted by the Special Branch and known to the Prime Minister prior to his appointment. That is the system in our country. If it was true that Mahathir knew about the wrong-doings since 1993 then he should have acted immediately as it is his responsibility to do so and as his duty to the people of Malaysia.


THE INTERNAL SECURITY ACT

The Internal Security Act (ISA) was clearly devised by the British to control the spread of Communism during the British rule. It is totally out of date and must be abolished immediately to prevent further abuse of power.

There are sufficient laws for detaining a person undergoing police investigations without resorting to the ISA for offences totally unconnected with the ISA. To detain anyone in this illegal manner would also amount to the and those in authority deluding themselves that they have unlimited powers to carry out unlimited torture and beatings which will not cease until the detainee signs a confession or appears on the National Television to read out whatever confession that have been drafted out for them to say. In most cases it has turned out that the confessions were not voluntary.


RIGHT TO ASSEMBLE

I do not advocate riots and unlawful assemblies in any way and those who are guilty must be brought to court and charged accordingly. In no way can this be connected with the ISA. There must be fair and equal application of the law to all. On this issue the police have to be fair. Their decision not to allow the gathering at Bukit Jalil for the Barisan Youth movement and for the others is a very good decision as it will avoid unnecessary tension where innocent people can get hurt. However the police should allow for organized gatherings in smaller groups as people should have the right and freedom to meet and express themselves as guaranteed under the Constitution of Malaysia. If Mahathir can be allowed to hold briefing sessions whether behind closed doors or not then others should be given the same rights. As a citizen of this country we have a right to demand for what is rightfully ours.


GLASS HOUSE

People who live in glass houses shouldn't throw stones. The current hot topic was that Anwar's sacking was on grounds of "immorality".

I question the basis of the sacking and up to what extent Mahathir is concerned about morality as he himself is not perfect. It is common knowledge that he and most of the serving Ministers, have had their share of "immoral" acts, as such they are not qualified to point a finger at anyone on these grounds and worst of all to detain Anwar under the ISA based on "immoral" allegations.

I quote from the Quran: (Nahl XVI: 61)

" If God were to punish Men for their wrongdoing, He would not leave, on the earth A single living creature: But He gives them respite For a stated Term "

ALL IS GOD'S WILL! MAN PROPOSES GOD DISPOSES! MAY GOD GUIDE US AND KEEP US ON THE RIGHT PATH!

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