Freedom from hate speech

The Sunday Star
Legally Speaking by Roger Tan

The debate currently raging in Australia about amending or repealing section 18C of its Racial Discrimination Act, 1975 is rather interesting.

DURING the recent election, Prime Minister Tony Abbott and Attorney-General George Brandis had pledged to repeal section 18C.

It all started after journalist Richard Bolt was found to have contravened the RDA in two of his articles written in 2009 and published in The Herald Sun and on its online site, titled “White fellas in the black” and “White is the new black”.

As reported in the case of Eatock v Bolt, 2011, Eatock had complained that Bolt’s two articles had conveyed offensive messages about her and people like her (that is high profile and fair-skinned Aboriginal people) in that they were not genuinely Aboriginal and were pretending to be Aboriginal so they could avail to the benefits meant for Aboriginal people.

Justice Bromberg ruled that the defences and exemptions allowed under section 18D of the RDA, such as if the act was done reasonably and in good faith for purposes of artistic work or public interest or making a fair comment, had no application because the articles contained factual errors.

Hence, this has now appeared to be the first task of the Abbott government, that is to remove this racial vilification law. In Brandis’ view, repealing section 18C would, in fact, strengthen and restore freedom of speech in Australia.

“You cannot have a situation in a liberal democracy in which the expression of an opinion is rendered unlawful because somebody else ... finds it offensive or insulting,” said Brandis in The Australian recently.

In other words, free speech is about allowing other people to say or write bad and rude things about you which you do not like.

That was exactly what Abbott said in August when he was the Opposition Leader: “If free speech is to mean anything, it’s others’ right to say what you don’t like, not just what you do. It’s the freedom to write badly and rudely. It’s the freedom to be obnoxious and objectionable.”

Have uniform laws

Cleaning up: A contractor raking the litter trapped in a floating boom installed in Sungai Batu near Kampung Simpang Batu, Kuala Lumpur. Malaysians must realise that whatever we throw into the drain will eventually flow into the river.

The Sunday Star

Legally Speaking by Roger Tan

There should be a law to deal with all matters relating to our water resources, including management and preservation of rivers. 

THERE is a saying that if you follow the river, you will find the sea. But these days, this may not literally be the case any more. The old river may have already turned into a stream or its path has been severely obstructed by waste. 

Yet, whenever there is a flash flood, we would blame nature for causing the river to burst its banks. Take the Gombak River, for example. The flood problem has been there ever since the beginning of the century. 

As someone related to me, during the great flood of 1920 when Kuala Lumpur was inundated with a metre of water, workers had to paddle to work in sampans! When the water receded, the Chartered Bank, located at Benteng, actually spread millions of soggy bank notes to dry on the Selangor Club’s field (now Dataran Merdeka)! 

In another big flood a few years later, even the body of a tiger was swept through the city from upstream!

Hence, Malaysians must realise, if not begin to realise, that whatever you throw into the drain will eventually flow into the river. Waste must be properly disposed of, otherwise it will clog the drains and rivers. Similarly, if you discharge any environmentally hazardous substance into the river, it will cause pollution. 

Adult and baby diapers now 12.14% of waste disposed in Malaysia

The Star

by Isabelle Lai

PETALING JAYA: Malaysians are throwing away more diapers each year, as the population ages and more elderly people have started using diapers, aside from babies, said the Urban Wellbeing, Housing and Local Government Ministry.

Its secretary-general Datuk Seri Arpah Abdul Razak said on Tuesday that diapers now formed 12.14% of the total waste disposed in the country.

“This shows that we have an ageing population as more senior citizens are using diapers, too,” she said in her presentation entitled “Solid Waste Management in Malaysia: A Way Forward” at the International Solid Waste Association (ISWA) Congress 2013 in Austria.

AFP reported that Arpah shared Malaysia’s experience in transforming its solid waste management through three approaches.

The approaches are federalisation of solid waste management, privatisation of household solid waste collection services and treatment and disposal of solid waste.

Lawyers want Sabah and Sarawak to ease restrictions

The Star

PETALING JAYA: Senior lawyers have suggested peninsula lawyers to be allowed to practise in Sabah and Sarawak without a work permit to enhance national integration.

Lawyer Roger Tan said legal professionals in Sabah and Sarawak should adopt a progressive stance as integrating the legal systems and profession would ultimately benefit the nation. 

Lawyer Datuk V. Sithambaram said for a start, conditions for an ad hoc admission to the High Court of Borneo – if a lawyer from the peninsula were to work in the two states – should be eased. 

“It will be good in the long run to encourage lawyers in the two states and peninsula to learn from each other and stand together,” he said. 

Ex-judges must remain ethical

The Sunday Star

Legally Speaking by Roger Tan

Who a former judge later associates with and what he subsequently does or says will still be closely scrutinised by the public.

THE morning after I retired, a Rolls Royce arrived at my house with a message that I was required to attend a very important board meeting. Without further ceremony, I was taken to the penthouse of the Chartered Bank. Here, I was appointed chairman and required to call the meeting to order.

“There were only three items on the agenda. Caviar, champagne and any other matters arising therefrom. At noon, we adjourned to a private room in the Shangri-La for a sumptuous lunch. When I was driven back home at 3pm, I greatly regretted I had not retired years earlier!”

Those were the bantering words of one of Malaysia’s most celebrated judges, Tun Mohamed Suffian, at a dinner given in his honour shortly after his retirement as Lord President on Nov 12, 1982. At first glance, these may well be facetious remarks, but it does go to show that a retired judge can be commercially marketable and become an asset for any organisation to be associated with.

Needless to say, who an ex-judge later associates with and what subsequently he does or says will still be closely scrutinised by the public. His judicial conduct during his pre-retirement or resignation days may even be called into question if he later exhibits strong inclinations or preferences whether politically, socially or morally.

However, currently, the Judges’ Code of Ethics 2009, made pursuant to Article 125(3B) of the Federal Constitution, does not deal with the conduct of judges after their retirement or resignation. Hence, an ex-judge will have to be guided by his own conscience when he embarks on any post-retirement activities. Most of them will become an arbitrator or join a legal firm as its consultant or a statutory body as its chairman. To date, only three are said to have returned to the court as counsel – Tun Mohamed Salleh Abas, Datuk Kamalanathan Ratnam (better known as R.K. Nathan) and Datuk Gopal Sri Ram.

Custodial deaths a national shame

Justice served: Kugan’s mother Indra Nalathamby leaving the court. Kugan’s family was awarded RM751,709 in damages and another RM50,000 in costs.

The Sunday Star

Legally Speaking by Roger Tan

Our enforcement officers must appreciate, if not be made to appreciate, that it is the cornerstone of our criminal justice system that a person, including a suspect, is innocent until proven guilty.

ON June 28, Justice Datuk V.T. Singham indeed retired with a bang! Two days before his retirement, he awarded RM751,709 in damages and another RM50,000 in costs to the family of Kugan Ananthan who died while in police custody on Jan 20, 2009. 

Singham held that the then Selangor police chief Tan Sri Khalid Abu Bakar, now the Inspector-General of Police, had committed misfeasance in public office. 

In delivering his judgment, he also reportedly urged the government to urgently set up the Independent Police Complaints and Misconduct Commission (IPCMC) as recommended by the 2005 Royal Commission to enhance the operation and management of the Royal Malaysia Police (RCI).

However, at the time of writing this piece, his written judgment is still not available. In any event, the government and the IGP are expected to appeal against his decision.

This reminds me of the case of Mohd Anuar Sharip who vomited blood, collapsed and died in a police cell on Aug 19, 1999. In June, 2010, Justice Lee Swee Seng awarded about RM1.6mil in damages to his widow, Suzana Mohamad Aris. However, Lee’s decision was subsequently reversed by the Court of Appeal. In October 2010, Suzana failed to obtain leave from the Federal Court to appeal against the decision of the Court of Appeal. 

But it is worthy to reiterate Lee’s words when he handed down his judgment: “Let the message go forth from this place that any more deaths in police custody would be one too many! Those with power to arrest and detain must ensure that the basic human rights (sic) of a detainee to seek medical treatment while in custody, is immediately attended to. There should be no more wanton and wasted loss of life in police custody for every life is precious … The safest place to be in should not by default be turned into the most dangerous place to be taken to.”

Negotiate, not quarrel, over water

The Sunday Star

Legally Speaking by Roger Tan

Penang and Kedah must sit down and work out an agreement that’s mutually beneficial to both states and their people.

IT is interesting to read Penang Chief Minister Lim Guan Eng’s statement that Kedah’s proposal to charge Penang for raw water was “unreasonable” and akin to “asking money for nothing” (“Penang not getting raw water from Kedah”, The Star, June 17).

It is equally interesting to read Kedah Mentri Besar Datuk Mukhriz Mahathir’s response that both state governments should negotiate the raw water payment issue. But this is not a new issue. The previous PAS-led government too had made a similar request.

To understand the issue, it is good to look at the diagram. Basically, there are three major river basins in Kedah – Kedah River, Muda River and Merbok River. The Muda River basin is the largest in Kedah covering a total area of about 4,150 sq km. (A river basin is an area of land drained by a river and its tributaries.) There are two dams in this basin – Muda dam and Beris dam. The Beris dam is located at Muda’s River’s tributary, Beris River. The Muda dam is located upstream of the Muda River covering an area of about 985 sq km. When necessary, the Muda and Pedu dams complement each other via the 6.6km Saiong tunnel.

The Pedu and Muda dams are located together with the Ahning dam in the Ulu Muda forest reserve, which includes the water catchment area – the size of which is larger than Penang state.

In 2003, a Barisan Nasional-led government had planned to log thousands of hectares of forest in this sprawling catchment area. In June 2008, Kedah Mentri Besar Datuk Seri Azizan Abdul Razak had also threatened to fell trees near this catchment area unless the Federal Government paid RM100mil to the Kedah Government.

Fortunately, no major logging took place, otherwise silt from logging would not only pollute rivers but also clog up dams and water treatment plants. Large-scale cutting down of trees too would increase the salinity level, causing the water in the reservoirs to turn salty. Hence, whatever happens to this area will adversely affect the lives of the people of Kedah and Penang. The reservoirs here irrigate our country’s main rice bowl and supply most of the water to the two states.

The stink of injustice

 

Justice not served: Cousins Piya (left) and Prithep Sosothikul with a picture of their late grandmother, Boonsom Boonyanit.

The Sunday Star

by Roger Tan

The police have to explain their tardiness in investigating the most infamous land forgery case in Malaysia.

This is a heart-rending story, a story about an incessant quest for justice by three generations of a Thai family.

It all happened on Dec 12, 1956 when a Thai of Chinese origin, Sie Guan Tjang @ Sie Hang Bok, purchased two pieces of land for investment – Lots 3606 and 3607 of Mukim 18 at Tanjung Bungah, Penang (“the said lands”).

During his lifetime, Sie visited Penang very often with his Thai wife, Boonsom Boonyanit, also known as Sun Yok Eng. They loved Penang and her people so much that they had intended to build their retirement home on the said lands. On Jan 18, 1967, the two lots of land were transferred to Boonsom by way of a memorandum of transfer (“Form 14A”).

Under section 81(3) of the National Land Code (Penang and Malacca Titles) Act 1963 (Act 518), Form 14A was then treated more or less as proof of ownership over the said lands. Section 92 of Act 518 also provides that pending the issuance of a final title, an advance certificate of title (“ACT”) would be issued. Since Jan 18, 1967, Boonsom had been at all times in possession of the Form 14A apart from faithfully paying all the quit rents and assessments due on the said lands.

Some time in June 1989, Boonsom’s eldest son, Phiensak Sosothikul, chanced upon an advertisement in a Thai newspaper, Thairat, dated June 11, 1989, which was inserted by a law firm from Penang, Messrs Khor, Ong & Co (“KOC”). The advertisement requested that any person who had any right to the said lands or any heir to Boonsom residing at a house No. 87, Cantonment Road, Penang, Malaysia to contact KOC. The court was later told that when Boonsom’s accountant did contact KOC, the latter could not give any useful information.

Boonsom then engaged the law firm, Messrs Lim Kean Siew & Co (“LKSC”) to conduct investigations which revealed that the said lands had been fraudulently transferred by an impostor claiming to be Boonsom to Adorna Properties Sdn Bhd, then known as Calget Sdn Bhd (“Adorna”) on May 24, 1989.

Boonsom then sued for the return of the said lands. The Penang High Court ruled in favour of Adorna on April 28, 1995. On appeal, the Court of Appeal in its judgment dated March 17, 1997 reversed the High Court’s decision. Adorna then appealed, and the Federal Court comprising Eusoff Chin, Wan Adnan Ismail and Abu Mansor Ali allowed Adorna’s appeal in its judgment dated Dec 13, 2000 and pronounced in open court on Dec 22, 2000 (“Adorna Judgment”). Sadly, Boonsom had already passed away on May 23, 2000.

Boonsom’s second son, Kobchai Sosothikul, being the representative of her estate, soldiered on and filed two separate motions to the Federal Court for review of the Adorna Judgment.

Democracy or democrazy?

Cyber assault: Chua Lai Fatt’s MyKad as posted and circulated on Facebook.

The Sunday Star

by Roger Tan

Democracy is about accepting finality through the ballot box and due process of law.

IN the 2000 United States presidential election, despite Al Gore having won the popular vote, he did not get to become President.

He received 266 votes and George W. Bush obtained 271 at the Electoral College due mainly to the vote recount fiasco in the state of Florida. The matter went all the way up to the US Supreme Court, which ruled 5-4 in favour of Bush. This was by far one of the most divisive and controversial US presidential elections, so much so that Bush was described as the President elected by the US Supreme Court.

Even though Gore strongly disagreed with the apex court’s decision, he was nevertheless gracious in defeat. Indeed, it took a big man like him to admit defeat. I remembered his concession speech almost moved me to tears.

Gore said: “Almost a century and a half ago, senator Stephen Douglas told Abraham Lincoln, who had just defeated him for the presidency, ‘Partisan feeling must yield to patriotism. I’m with you, Mr President, and God bless you.’ Well, in that same spirit, I say to president-elect Bush that what remains of partisan rancour must now be put aside, and may God bless his stewardship of this country. Now the US supreme court has spoken. Let there be no doubt, while I strongly disagree with the court’s decision, I accept it. I accept the finality of this outcome ... And tonight, for the sake of our unity as a people and the strength of our democracy, I offer my concession. I know that many of my supporters are disappointed. I am too. But our disappointment must be overcome by our love of country.”

This is what democracy is all about – accepting finality through the ballot box and due process of law.

Alas, Datuk Seri Anwar Ibrahim refused to do so. He has vowed to move on with a “fierce movement” by holding protest rallies throughout Malaysia to challenge the 13th general election results. This is not democracy. If I may coin a new word for the Oxford’s English dictionary, it is democrazy!

If we want to indulge in an orgy of rhetorics that Barisan Nasional won by massive fraud, then I say Pakatan must have won by massive lies spread over the social media such as that:

> 40,000 foreigners were flown in from east Malaysia to vote in the peninsula;

> a bomb planted by Barisan supporters had exploded at the Johor Baru immigration terminal in order to frighten Malaysians working in Singapore from coming home to vote;

> new ballot boxes were added or exchanged when there was a blackout in Bentong in order to enable Datuk Seri Liow Tiong Lai to win.

GE13: Do not politicise the pulpit

The Sunday Star

by Roger Tan

When spiritual leaders start to use the church to make fun of the government or endorse a particular political party or candidate, this is wrong.

ON April 15, Roman Catholic Bishop Dr Paul Tan Chee Ing lambasted the government for holding the 13th general election on a Sunday. Tan warned, as reported in a Malaysiakini article, “Bishop says Sunday ballot a bane to Christians”, that for this reason, he would urge Catholics in his diocese to consider carefully before voting.

It is surprising that this Bishop of the Diocese of Malacca-Johor who was also someone who had helped found the Catholic Research Centre could have got his facts so wrong. In this respect, I could not have agreed more with Austin Gonzales’ response to Tan’s unwarranted outbursts (see “Is Bishop Paul Tan being insensitive and callous?”, The Star, April 18) except to reiterate that, firstly, it is not the government but the Election Commission that fixed the election date. Secondly, the 7th, 8th and 11th general elections were all held on a Sunday – Aug 3, 1986, Oct 21, 1990, and March 21, 2004.

If Tan feels so strongly that Catholics in his diocese should not be inconvenienced on a Sunday because it is a holy day, then all the more he should urge them to consider carefully before voting for PAS as the weekly holiday may well be changed to a Friday should they come into power!

I am sure Tan’s sentiments are not shared by many Christian Malaysians. In fact, I am rather concerned that lately the pulpit has been misused for political purposes. Just last Sunday, one woman pastor in an established Kuala Lumpur church purportedly said over the pulpit without any substantiating evidence that thousands of foreigners would be voting in this election.

In the Facebook Group of the Anglican Diocese of West Malaysia, someone was even allowed to post that Sunday had been chosen in order to enable phantom votes to take place in the morning when Christians are worshipping in church! This is indeed a colossal exaggeration. There was also another posting there heaping praise on PAS for fielding Hu Pang Chow, a Christian, in this coming election.

To my mind, what Tan and the woman pastor did was to sow hatred and make their believers angry. They have obviously forgotten the Prayer of St Francis of Assisi to become instruments of peace so that where there is hatred, may they sow love, and where there is injury, pardon.

Tan, in particular, should be reminded by what Pope Francis said recently that hypocrisy has undermined the church’s credibility. In the pontiff’s words: “Inconsistency on the part of pastors and the faithful between what they say and what they do, between word and manner of life, is undermining the Church’s credibility … Those who listen to us and observe us must be able to see in our actions what they hear from our lips, and so give glory to God.”

GE13: Abiding by the nomination process

The Sunday Star

by Roger Tan

Vital step: File picture of the nomination for the Berapit state seat in 2008. If any nomination paper is rejected, the decision of the returning officer is final and shall not be called in question in any court.

The nomination process for the coming general election is bound by the Elections Regulations (1981) which have stringent rules.

COME this Saturday, at least a thousand candidates will present their nomination papers for the 13th general election. They will vie for the 191 parliamentary seats and 505 state seats in peninsular Malaysia and Sabah, and 31 parliamentary seats in Sarawak.

However, their nomination papers can be rejected by the returning officer if the candidates are not capable of or are disqualified from standing in the election or their nomination papers are not in compliance with the Elections (Conduct Of Elections) Regulations 1981 (ECER) made under the Elections Act, 1958.

Under Article 47 of the Constitution, a candidate must be a citizen of not less than 21 years old resident in Malaysia.

Article 48 then provides that he is disqualified if he:

> is of unsound mind; or

> is an undischarged bankrupt; or

> holds an office of profit; or

> has failed to lodge any return of election expenses unless this disqualification is removed by the Yang di-Pertuan Agong or five years have passed from the date on which the return was required to be lodged; or

> has been convicted of an offence by a court of law in Malaysia and sentenced to imprisonment for a term of not less than one year or to a fine of not less than RM2,000 and has not received a free pardon unless this disqualification is removed by the Yang di-Pertuan Agong or five years have passed from the date on which the person convicted was released from custody or the date on which the fine mentioned was imposed on such person; or

> has voluntarily acquired citizenship of or exercised rights of citizenship in a foreign country or he has made a declaration of allegiance to any other country; or

> has resigned from the Dewan Rakyat less than five years ago.

Time to prosecute negligent parents

Responsible parenting: 
Hold on to your children to keep them safe.

The Sunday Star

by Roger Tan

It is incomprehensible why some parents and guardians continue to fail or refuse to appreciate the severity of their actions by causing children to eventually become victims of neglect.

LIKE many Malaysians, I was heartbroken to learn that the decomposed body found near the Kampung Sungai Sireh jetty in Port Klang on Jan 24 was that of the missing six-year-old William Yau Zhen Zhong.

William will now join the list of highly publicised cases of missing children who were either found dead subsequently or are still missing such as Ang May Hong (1987), Chai Sieu Chi (1995), Tin Song Sheng (1996), Nushuhada Burak (2000), S. Maniarasi (2001), Nurul Huda Abdul Ghani (2004), Haserawati Saridi (2004), Nurin Jazlin Jazimin (2007), Sharlinie Mohd Nasha (2008), Mohd Asmawi Jalaludin (2008), Harirawati Saridi (2009), Nisha Chandramohan (2010), Nurul Nadirah Abdullah (2012) and Satishkumar Tamilvanan (2012).

Personally, I can commiserate with William’s parents over their loss. In my case, my beloved father Tan Sue Yong, who disappeared in 2000, is still missing. The sorrow, grief and agony experienced by those who are left behind are simply indescribable.

It is sad really that despite our nation’s conscience being shaken each time a high profile case like William’s is highlighted, we continue to have reports of missing children.

According to the official portal of the Royal Malaysia Police (www.rmp.gov.my), 4,804 persons were reported missing between January and October last year. Of these, 2,332 have been found, but 2,472 persons are still missing. Of the 2,472 missing persons, 1,177 of them are children, that is, those aged below 18, and 896 of them are girls. This statistic is indeed alarming as it means an average of 16 people are reported missing daily nationwide!

Hence, if we, as a society, are to be judged by how we protect our children who form the most vulnerable component of it, then we may have failed miserably. This begs the question whether the majority of these cases could have been avoided if the person having care of the child had exercised due supervision and diligence.

Eulogy delivered by Roger Tan for the Revd Dr. George Hood at the Sunday Worship Service of Holy Light Church (English) on 20 January 2013

Members of this congregation, it gives me great honour and yet sadness to deliver a eulogy for the Revd Dr. George Hood who passed away peacefully in his sleep in the early hours of the morning of Wednesday, January the 9th at his home in Alnwick, Northumberland, England. According to his daughter, Catherine, George was normal the night before when she helped him to the bed. He was 95. 

This Church remembers him as the one instrumental in restarting this English Service on the evening of the first Sunday of August, being 3rd of August, 1952 after it had ceased shortly with the passing of Dato’ James Meldrum in 1904.

George was a veteran missionary and Church historian. Born on Friday, April 27, 1917, he graduated in history at Oxford and studied at Cambridge for the ministry of the Presbyterian Church of England (now known as the United Reformed Church). In 1943, he was ordained at Trinity Presbyterian Church, Newcastle to serve as a missionary. He first served at the English Presbyterian Mission in Lingdong Synod of the former Church of Christ in Shantou (or historically known as Swatow), China, between 1945 to 1950. This was also the area in which his wife, Elizabeth’s parents and grandparents had worked from 1869 onwards. Elizabeth passed away on October 7, 2010.