Archive for category Judiciary

Strange reasoning

— Clive Kessler
The Malay Mail Online
October 16, 2013

OCT 16 — The more I think about the Court of Appeal’s recent judgment in the case of the government’s appeal against the lower court’s determination in favour of The Herald, the crazier, and more infuriatingly wrong-headed, it seems.

The legal reasoning of Justice Mohamad Apandi Ali seems not just “innovative” but arguably bizarre and, to the historically minded, even absurd. It seems hardly sustainable.

It rests upon and promotes the radical idea that the enjoyment by minorities of their religious freedom “in peace and harmony” was, as a form of words, not intended as a constitutional guarantee or assurance to them but as a way of making that freedom of theirs subject to the pleasure, discretion and the inflationary whims of the majority.

With that “contrarian” spin, these words are now made to serve as the practically enabling condition or mechanism of the minority’s subordinate and infinitely ever more constrainable situation.

That is to say, of a situation where the exercise of any of the potential freedoms of religious conscience that the minority might claim is now to be made conditional upon continuing, and always revocable, majority consent — upon the majority’s increasingly reluctant and unlikely forbearance. Read the rest of this entry »

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Bar questions premise for ‘Allah’ judgment

Christopher Leong
Malaysiakini
Oct 16, 2013

COMMENT The Malaysian Bar is deeply concerned by the decision of the Court of Appeal delivered on Oct 14, 2013 in what is commonly referred to as the ‘Herald’ or ‘Allah’ case.

The concerns arise from the court’s interpretation of Article 3(1) of the federal constitution on the status of Islam and other religions and Article 11(1) and (4) on the fundamental right to profess and practice a religion.

Any interpretation of the constitution must invite the greatest scrutiny as it impacts on the fundamental freedoms guaranteed to all citizens. Read the rest of this entry »

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Jakarta Post: ‘Allah’ ruling risks spreading to Indonesia

By Boo Su-Lyn
The Malay Mail Online
October 17, 2013

KUALA LUMPUR, Oct 17 — Malaysia’s court ruling on Muslims’ exclusivity over “Allah” could inspire Indonesians of the faith to lay the same claim over the Arabic word, Jakarta Post warned in an editorial yesterday.

The English-language daily in Indonesia noted that religious exclusivism was equally strong in Indonesia, “if not stronger” than in neighbouring Malaysia, citing previous debates like whether non-Muslims should be allowed to say the traditional Arabic phrases “Assalamu’alaikum” (peace be upon you), “Alhamdulillah” (praise be to God) and “Insya Allah” (God willing).

“It’s only a matter of time before someone takes the cue from Malaysia and starts raising objections to non-Muslims using the word Allah,” Jakarta Post wrote in an editorial titled “No one has monopoly claim to God: On the use of ‘Allah’ in Malaysia”.

“No one who believes in the power of one supreme God can really claim exclusivity. There is no such thing as the God for Catholics, just as there is no such thing as the God or Allah for Muslims,” added the newspaper.

Jakarta Post stressed that “those who claim exclusivity to God undermine their own faith, and inadvertently or not, preach polytheism”. Read the rest of this entry »

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Election Courts are worse than the Election Commission

– P Ramakrishnan
The Malaysian Insider
October 12, 2013

Yes, the Election Courts are worse than the Election Commission (EC)! The recent disappointing decisions of the Election Courts have proved that there is no hope for parliamentary democracy even in the judiciary.

If the Barisan Nasional (BN) is a great let-down for democracy, the Election Commission is an even greater let-down for the electoral process. But shockingly, the Election Courts comparatively are far worse in that they cannot dispense justice to the aggrieved party even if there was a glaring injustice.

It is clear as daylight that the BN abused the electoral process by openly bribing voters through its many projects launched especially during the period leading up to the GE13 (including the campaign period itself) by dishing out goodies and cash inducements to win over the voters. Billions of ringgit in cash or projects was dispensed freely giving an unfair disadvantage to the Opposition who were cash-strapped. Read the rest of this entry »

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We Want to Know Who Killed Altantuya

By Kee Thuan Chye
Yahoo! News
24.8.13

The Altantuya Shaariibuu murder case has taken another appalling turn. First, political analyst Abdul Razak Baginda, who seemed to have more of a motive for killing the Mongolian model, was acquitted in 2009, without his defence being called. Now the Court of Appeal has freed the two police commandos convicted by the High Court of actually killing her and blowing her body up with a C4 explosive.

The Court of Appeal acquitted Chief Inspector Azilah Hadri and Corporal Sirul Azhar Umar because it ruled that the judge who heard the case in the High Court committed serious misdirection. Among other things, he did not allow then deputy prime minister Najib Razak’s aide-de-camp, DSP Musa Safri, a key witness, to be called to testify, and he failed to establish how the two accused came to possess the C4 and whether there was common intention between them to commit murder.

The Malaysian layman, however, doesn’t want to know the legal implications. He is concerned only with the moral aspects. He knows that Sirul made a cautioned statement describing what he and Azilah did to Altantuya that fateful night, and that he mentioned the offer of a reward of RM50,000 to RM100,000 for killing her.

This cautioned statement was ruled not permissible as evidence by the judge, Mohd Zaki Yassin, and the two commandos were never asked during the trial as to who made that offer to them. But it seemed clear that Sirul and Azilah were merely hitmen. They didn’t know the victim. If they had a motive to kill her, it would appear to be only to collect the reward.

That being so, it was, however, never asked in court who instructed them to kill Altantuya. To the layman, it is extremely strange that the prosecution did not ask that crucial question. Read the rest of this entry »

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In Borders case, common sense triumphs over bad faith

by Debra Chong
The Malay Mail Online
August 20, 2013

KUALA LUMPUR, Aug 20 — In the face of Malaysia’s rising religious conservatism, a civil court judge has boldly ruled on reason and common sense to uphold a Muslim storekeeper’s constitutional right to sell a book Islam’s gatekeepers here found offensive.

The court case involving the local Borders’ sale of Canadian author Irshad Manji’s book “Allah, Liberty and Love” has been closely-watched since it hit national headlines last year after Islamic enforcement officials seized the stock and charged the store manager Nik Raina Nik Abdul Aziz with violating publication and distribution laws.

Five months after pronouncing the Federal Territories Islamic Religious Department (JAWI), the home minister and the minister in the Prime Minister’s Department in charge of Islamic affairs guilty of abusing their powers to illegally prosecute the bookstore’s Muslim manager, Datuk Zaleha Yusof of the Kuala Lumpur High Court has finally released her grounds of judgment.

Though couched in the language of the court, the judge’s strongly-worded explanation kept to a strict interpretation of the law that has given hope to Malaysians that their civil liberties as laid down in the country’s founding document remain as robust as the day they were conceived half a century ago.

“I am satisfied that the applicants have shown existence of illegality, abuse of discretionary powers, irrationality, unreasonable exercise of power, unconstitutionally and that there exists procedural impropriety on the part of the respondents,” Zaleha wrote in her grounds of judgment released last week. Read the rest of this entry »

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The role of public interest litigation

– Dr. R. Rueban Balasubramaniam
The Malaysian Insider
August 19, 2013

After the recent general election, Malaysian democrats have again been frustrated. Once more, the United Malay National Organization (“UMNO”) emerged victorious, though many believe this was the most fraudulent election in Malaysia’s political history. Now, democrats are redoubling their efforts to reveal such fraud and to seek electoral reform at least with an eye to winning the next election.

Democrats take solace in the fact that UMNO is on very vulnerable political terrain; it cannot compete fairly within upon a democratic playing field, but they should not just exert political pressure on UMNO. They can use another strategy: public interest litigation designed to embarrass UMNO’s ethnocratic political program, a program rooted in an authoritarian and discriminatory principle of Malay political dominance. Through such litigation, democrats can cast further doubt on UMNO’s claim to exercise legitimate political rule.

At present, Malaysia has no tradition of public interest litigation. This, despite the existence of a supreme written Constitution that contains a bill of rights and provisions that protect important group interests within a rubric of legal equality and provisions that express the principles of the separation of powers and federalism, which guard against the excessive concentration of power in any single organ of government. It is plain that the constitutional framework imposes legal discipline upon political power in a way that is hostile to authoritarian rule that is readily amenable to public interest litigation. Read the rest of this entry »

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Demanding that the accused prove innocence is utter rubbish!

— P Ramakrishnan
The Malay Mail Online
August 13, 2013

AUG 13 — The accepted legal norm is that the accused is innocent until proven guilty. That is the basic law. That is the golden thread of the law. That is the basis of justice.

It appears that Ranjit Singh Dhillon, the Penang Bar Committee’s criminal law chairman, has totally ignored this time-honoured principle by demanding that Dato Seri Anwar Ibrahim and Karpal Singh declare their assets to prove their innocence. This is ridiculous!

If this was Ranjit Singh’s personal view, that would be of no consequence. But this view was stated in his capacity as an official of the Penang Bar – that makes it preposterous!

Malaysians would like to know if the Penang Bar shares Ranjit’s absurd view or does it disassociate itself from this view? This must be stated immediately and clearly. Malaysians should not be left wondering what has happened to the Penang Bar. Isn’t justice and fairness the paramount concern of the Bar? This must rightly be so.

Ranjit’s sober position should have been to ask the accuser to make a police report and provide the MACC with the so-called evidence in his possession that suggests that there was corruption in the conduct of these two Pakatan leaders. In this manner, he would have facilitated the commencement of criminal investigation by both the police and the MACC. Unfortunately, Ranjit did not do this. He did not promote the cause of justice.

What are the facts? Read the rest of this entry »

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Stupid Prank and Double Standards

By Kee Thuan Chye
msn
23 July 2013

Alvin Tan Jye Yee and Vivian Lee May Ling, collectively known as Alvivi, are now in prison, awaiting trial. The judge denied them bail after they pleaded not guilty to three charges related to alleged sedition, causing enmity between people of different religions, and displaying pornographic pictures on their blog.

The charges – under the Sedition Act, the Film Censorship Act and the Penal Code – are pretty serious. If found guilty, they could go to jail for some years. Not a bright prospect for two supposedly smart people in their mid-20s.

But why were they not granted bail? What further harm could they inflict? Whom could they harm? How severe, really, is their offence? Even people charged with committing far worse offences, like rape, have been given bail.

Attorney-General Abdul Gani Patail says Alvivi were denied bail because of their tendency to post content on their blog that could potentially anger the public.

I think that’s being presumptuous. It is not backed up with any evidence. Besides, potentially angering the public is a poor excuse. And since we are engaging in making assumptions, I would hazard that it’s very unlikely that the duo would still opt to arouse public anger after having faced those serious charges. In fact, even before they were arrested, they had already apologised. Read the rest of this entry »

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Pakatan’s uphill GE13 battle in the courts

The Malaysian Insider
July 15, 2013

The simple summary of Pakatan Rakyat’s suit in court today is that it did not get a fair election. The question now is, what can and will the courts do?

No matter how you slice or dice it, it is tough for Pakatan to win its suit against the Election Commission (EC) because courts here are loath to disturb anything to do with elections. It is even rare for election courts to overturn polls results.

What more nullifying the whole Election 2013.

Also, Malaysian courts have in recent years not demonstrated a willingness to confront the government of the day on various issues – be it conversions of minors to land matters.

That said, it is remains important for Pakatan to thoroughly detail its cases in which it believed fraud prevented it from winning on May 5, 2013. In dispute are at least 43 seats before the courts.

But what is quite clear is that the EC’s handling of the indelible ink over the past five years would have made the Keystone Kops proud. Never have we seen a commission blunder and make a hash of things the way it has. Read the rest of this entry »

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21st Century Courts, 20th Century Mindset

― Fahri Azzat (Loyarburok.com)
The Malay Mail Online
July 14, 2013

JULY 14 ― You lost your case. The judge decided against you because he found the other side’s witnesses more credible compared to yours and so preferred their testimony to your witnesses’. You complain loudly to any who care to listen, ‘How the hell can the judge prefer their witnesses over mine?’ You angrily tell your lawyer to appeal.

But if your lawyer was honest with you, he will tell you not to bother. Don’t waste your time, money and effort, he should tell you. If you ask why, he will tell you that the appellate court almost always trusts the trial judge’s assessment of a witness’ credibility. They will only depart from it in exceptional cases when the trial judge got it so perversely wrong.

The reason for this was alluded to in the recent Federal Court decision of Isidro Leonardo Quito Cruz v PP [2013] 2 CLJ 1025. It arose when Abdull Hamid Embong FCJ explained why appellate courts did not make finding of facts. He referred to the Privy Council decision of Antonio Dias Caldeira v Frederick Augustus Gray [1936] MLJ 137 (decided on 14 February 1934) which held as follows:

“Now, it settled law that it is no part of the function of an appellate court in a criminal case or indeed any case to make its own findings of fact. That is a function exclusively reserved by the law to the trial court. The reason is obvious. An appellate court is necessarily fettered because it lacks the audio-visual advantage enjoyed by the trial court.” So the appellate court’s reason for not reviewing the credibility of the witnesses during the trial and accepting the trial judge’s opinion on them is because it lacks the audio-visual advantage of the trial court.

Although that may be an acceptable reason in 1936, it is seems incongruous, if not perverse in 2013. After all, audio-visual equipment is now cheap, mobile and ubiquitous. Read the rest of this entry »

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Malaysia’s deep divides

by John Berthelsen
Asia Sentinel
May 29, 2013 10:49AM UTC

National elections on May 5 haven’t cooled political and racial tensions, writes Asia Sentinel’s John Berthelsen

Any hope that May 5 national elections in Malaysia would cool the political atmosphere appears to have been misguided, leaving a country entangled in deepening racial problems and creating the risk of a real threat to the legitimacy of Prime Minister Najib Tun Razak’s reign.

While not calling for Najib’s removal, the prime minister’s most potent critic, former Premier Mahathir Mohamad, damned him with faint praise, telling Bloomberg News in an interview in Tokyo last week that the United Malays National Organization will continue to support him “because of a lack of an alternative.” Read the rest of this entry »

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Court turns a blind eye to justice

P Ramakrishnan
Immediate past president, now Aliran executive committee member
27 March 2013

Malaysians were rudely shocked to learn that the High Court in Shah Alam put itself in a straitjacket and refused to see the glaring injustice that was clearly highlighted by Klang MP Charles Santiago in a suit that was decided on 14 March 2013.

Mr Santiago wanted the Court to review the principal and supplementary electoral rolls for his parliamentary constituency.

It was very disappointing that Judge Vernon Ong said that the Court was bound by Section 9A of the Elections Act 1958 and cannot review a gazetted electoral roll, literally throwing to the wind the conventional wisdom that “where there is a malady the Court will provide a remedy” – even if it has to use its inherent powers.

The Judge further noted that the Court could not compel the Election Commission (EC) to respond to the queries of the MP as there was no provision in the Act for it to do so. While it may be true that there is no such provision, what is far more important is whether there is specifically any provision in the Act prohibiting the EC from responding?

Why was this logical point entirely overlooked by the Court? If the Court was the bastion of justice as provided by the inherent powers of providing a remedy for a malady, it would have been the natural consequence to fall back on this logic. But surprisingly, this was not the case.

While it may be true that the Court was bound by Section 9A of the Election Act, shouldn’t the Court invoking its overview functions have also looked into the legality of this section?

Is it constitutional? Is it constitutional to perpetuate a wrong in spite of fraud, probably even of a criminal nature, that were clearly established by Mr Santiago? Read the rest of this entry »

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Swift action on Tian Chua, snail’s pace for Ibrahim Ali, Ridhuan Tee

― The Malaysian Insider
March 14, 2013

MARCH 14 ― PKR’s Chua Tian Chang was charged with sedition today for allegedly linking Umno to the on-going Sulu intrusion into Sabah.

Two surprises here.

One, that the Sedition Act is being used despite Putrajaya saying that the law will be repealed.

Two, allegedly offensive statements to burn Malay-language bibles by Datuk Ibrahim Ali and that against Hindus by academic Datuk Dr Ridhuan Tee have yet to see the police working as hard as they have with the Batu MP.

What does that say about double standards? Read the rest of this entry »

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22 questions for Dr M, again

P Gunasegaram
Malaysiakini
Feb 14, 2013

QUESTION TIME I became a journalist at the Business Times, then a standalone newspaper, in 1978.

Three years later in 1981 Dr Mahathir Mohamad became prime minister of Malaysia, its fourth, succeeding Hussein Onn.

I have followed his career quite closely since and frankly I am not impressed. He started off with promise – and promised a lot – but fulfilled none if any.

In fact I would go so far as to say that he was positively the worst prime minister this country has ever had.

Through destruction of institutions such as an independent judiciary, running roughshod over civil servants, bringing his brand of power, patronage and poor economics into decision making, and making use of oppressive laws he used an iron fist to rule and in the process brought more harm to this country than any other person alive or dead.

Much of the problems of Malaysia can be traced back to him and he has made it difficult for his successors to make major changes going forward, much of which would involve unwinding processes and linkages he had put in place before. Read the rest of this entry »

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Pengiraan Detik 76 Hari ke PRU13 – Sokongan kepada pembersihan korupsi badan kehakiman sejak 25 tahun lalu, termasuklah membuka semula dakwaan 33 mukasurat pada 1996 oleh pemberi maklumat badan kehakiman pertama di Malaysia melibatkan 112 dakwaan terhadap 12 orang hakim

Saya menyokong sepenuhnya tuntutan tiga bekas hakim Mahkamah Rayuan supaya dibuka semula kes lama dakwaan rasuah terhadap para hakim, termasuklah 33 mukasurat aduan oleh pemberi maklumat badan kehakiman pertama di Malaysia pada 1996 melibatkan 112 dakwaan rasuah, penyalahgunaan kuasa dan salah laku terhadap 12 orang hakim, kerana saksi-saksi mungkin bersedia untuk tampil kedepan sekarang.

Trio Tan Sri V.C. George, Datuk Shaik Daud Ismail dan Datuk K.C. Vohrah adalah betul apabila mereka mengatakan bahawa orang ramai tidak berpuas hati kerana dakwaan sebelum ini tidak dilihat dengan cermat.

Malah, berikutan testimoni di dalam Suruhanjaya Siasatan Diraja terhadap kes video klip V.K Lingam (2007-2008), saya telah mengulangi di Parlimen apa yang telah saya bangkitkan di Parlimen pada 1996, menuntut sisatan menyeluruh ke atas 112 dakwaan korupsi, penyalahgunaan kuasa dan salah laku kehakiman terhadap 12 orang hakim yang telah dibuat oleh hakim Mahkamah Tinggi ketika itu, Dartuk Syed Ahmad Idid Syed Abdullah Idid.

Ini kerana testimoni di dalam Suruhanjaya Siasatan Diraja Klip Video Linggam berkenaan rasuah dan korupsi hakim, termasuklah Hakim Besar ketika itu, mengingatkan rakyat Malaysia, terutamanya pemimpin politik, Ahli Parlimen, para hakim dan peguam kepada ucapan pertengahan Mac yang terkenal, ketika Peguam Negara Tan Sri Mohtar Abdullah mengejutkan rakyat Malaysia dengan pendedahan “33 mukasurat surat layang” yang membuat 112 dakwaan rasuah, salahguna kuasa dan salah laku terhadap 12 hakim pada satu Persidangan Hakim di Kuching pada March 1996.

Mohtar secara terbuka mengeluarkan arahan kepada polis untuk memulakan siasatan bagi “mencungkil” dan “mengheret ke muka pengadilan” “konspirator”, “pengkhianat” dan “unsur-unsur khianat” yang cuba “mencemarkan nama baik badan kehakiman dan menumpaskan keadilan” di negara ini.

Empat bulan kemudian, Mohtar mengumumkan kes tersebut ditutup apabila beliau mendapati seorang hakim Mahkamah Tinggi merupakan orang di belakang 33 mukasurat surat layang terhadap badan kehakiman dan hakim itu telah pun meletakkan jawatan. Read the rest of this entry »

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76-Day Countdown to 13GE – Support for the clean-up of judicial corruption in the past 25 years, including re-opening of the 33-page allegations in 1996 by Malaysia’s first judicial whistle-blower involving 112 allegations against 12 judges

I fully support the call by three former Court of Appeal judges for the re-opening of old cases of graft allegations against judges, including the 33-page complaint by Malaysia’s first judicial whistleblower in 1996 involving 112 allegations of corruption, abuses of power and misconduct against 12 judges, because witnesses might be prepared to come forward now.

The trio, Tan Sri V.C. George, Datuk Shaik Daud Ismail and Datuk K.C. Vohrah are right when they said that the public was not satisfied that previous allegations had been properly looked into.

In fact, following the testimonies in the Royal Commission of Inquiry into the V.K.Lingam Video Clip (2007-2008), I had reiterated in Parliament what I had raised in Parliament in 1996, calling for full investigations into the 112 allegations of judicial corruption, abuses of power and misconduct against 12 judges which had been made by a sitting High Court judge at the time, Datuk Syed Ahmad Idid Syed Abdullah Idid.

This is because the testimony at the Lingam Video Clip Royal Commission of Inquiry about bribery and corruption of judges, including the then Chief Justice, reminded Malaysians, especially political leaders, MPs, judges and lawyers of the notorious “Ides of March” speech in 1996, when the then Attorney-General Tan Sri Mohtar Abdullah shocked Malaysians with the revelation of a “33-page poison-pen letter” which made 112 allegations of corruption, abuses of power and misconduct against 12 judges at the Conference of Judges in Kuching in March 1996. Read the rest of this entry »

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Month-long jail sentence on “Occupy Dataran” student Umar Mohd Azmi outrageous and devastating reminder before 13GE that even under Najib as PM, the criminal justice system still sucks

The month-long jail sentence together with the maximum fine of RM1,000 on “Occupy Dataran” student Umar Mohd Azmi has become a national and international cause celebre because it is utterly outrageous as well as a devastating reminder just before the 13th General Elections that despite all the sloganeering about government, economic, educational, social and political transformation programmes, the criminal justice system in Malaysia still sucks even under the four-year premiership of Datuk Seri Najib Razak.

I am now in Sydney or I would have visited the protest camp set up by student activists outside the Kajang prison to demonstrate my support, sympathy and solidarity with Umar at the gross injustice of the harsh sentence imposed on him for obstructing a public official from performing his duty.

Why was Umar imposed the harsh penalty of a maximum fine of RM1,000 together with a one-month jail sentence, when the maximum sentence for an offence under Section 186 of the Penal Code for obstructing any public servant in the discharge of his public functions was a maximum jail sentence of three months or with maximum fine of RM1,000 or both?

One powerful reason why there must be change of Federal government in Putrajaya in the forthcoming 13th general elections is that the country is teeming with cases where the criminal justice really sucks like the case of Umar. Read the rest of this entry »

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Public spectacle of whipping penalty becomes circus for the masses

By CPI | 05 December 2012 11:39

CPI Introduction

The following below is an account of public flogging under an Islamic system in Pakistan. It is an eyewitness’s description which should provide pause for those who want to see Islamic norms prevail in our judicial system.

However, it should be noted that even under our present British-derived justice system, flogging or ‘judicial caning’ as it is sometimes kindly described, is also widely practiced in Malaysia though it is done in the privacy of the prison compound rather than in public as is the Islamic practice.

Although the number of judicial canings is not known, it is believed to run into the thousands and is especially inflicted on what are deemed to be serious offenders such as drugs traffickers and offenders of unnatural sex crimes, e.g. sodomy.
Read the rest of this entry »

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The Malaysian government is “broken” and that’s why it must be “fixed” in 13th GE

Over the weekend, in his speech to the state-sponsored NGO gathering “Himpunan Barisan 1Malaysia” at the Putra World Trade Centre, the Prime Minister, Datuk Seri Najib Razak said:

“Why fix it (the government) if it’s not broken? It’s not broken, far from it. Our country is the envy of many other nations.”

Both at the thousand-people Himpunan Kebangkitan Rakyat dinner in Kota Kinabalu on Saturday night and the People’s Green Assembly at Dataran Merdeka this morning at the conclusion of the historic 14-day 300-km Kuantan-Kuala Lumpur trek, I had posed the same question whether the “Malaysian government is broken and needs to be fixed?”, and the answer is a thunderous, powerful and united affirmative!

Fortunately, the Malaysian government has not broken down completely, all the more why it must be “fixed” immediately before it reaches a point of no return.

There is a long list why the Malaysian government is “broken” after 55 years of UMNO/BN rule and needs to be “fixed”, but I will only refer to the following instances: Read the rest of this entry »

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