Babytalk: My Mummy's writings part 2

Putik Lada: Gaping loopholes in the law
Contributed by Angeline Cheah Yin Leng

Thursday, 19 February 2009 12:12pm
©The Star (Used by permission)

Instances of disproportionate sentences in the statute books need to be reviewed to ensure the rights of all citizens are adequately protected.

On Feb 12, a 28-year-old man was fined a measly RM100 for taking a photograph of a 17-year-old girl urinating in a shopping mall toilet (“RM100 fine for taking photo of girl in toilet” – The Star, Feb 13).

And just two days earlier, the very same magistrate had slapped a RM3,500 fine each on an 83-year-old-man and three others for gambling during Chinese New Year or three months’ jail in default (“83-year-old slapped with hefty sum for gambling during CNY” – The Star, Feb 11).

In the first case, Johor Baru magistrate Hafizah Johor Ariff Johor was reported to be “visibly upset” that the maximum penalty she could impose on the peeping tom was only a RM100 fine.

Reading these two reported cases, there seems to be something very wrong with certain laws in our country.

For example, in the case of the aged gambler, he was probably charged under Section 6(1) of the Common Gaming Houses Act 1953 which carries a penalty of not more than a RM5,000 fine or not more than six months’ imprisonment or both.

We all know that gambling is an offence which not only affects the gambler himself, but his close family members and relatives as well. When people fall prey to gambling, they often resort to borrowing money from loan sharks and this can lead to disastrous consequences – even suicide – when they are unable to pay up.

However, can we seriously say that gambling is a more serious offence than taking photos of people doing their business in public toilets?

Many Chinese would admit to gambling within the confines of their own homes during the Chinese New Year period. It can be said to be part and parcel of the annual celebration. While technically a crime under the law, such gambling causes no serious harm to those involved.

In fact, in an earlier case before another Johor Baru magistrate, Nor Shahid Abd Malik, seven men who were caught playing mahjong were fined RM1,000 each (“Seven mahjong playing men fined RM1,000 each” – The Star, Feb 4). The men were reported to have told the magistrate that they were old and were merely playing mahjong to pass time.

But what surprises me is that the pervert who snapped the picture of the girl urinating was charged under the Minor Offences Act, 1955 for peeping, which carries a maximum penalty of a RM100 fine.

I find it rather mind-boggling that an act as serious as this had been treated merely as “insulting behaviour” under section 14 of the 1955 Act. This is indeed adding insult to injury, as the pervert virtually had a free show for a mere RM100!

Section 14 of the 1955 Act reads: “Any person who uses any indecent, threatening, abusive or insulting words, or behaves in a threatening or insulting manner, or posts up or affixes or exhibits any indecent, threatening, abusive or insulting written paper or drawing with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be occasioned, shall be liable to a fine not exceeding one hundred ringgit.”

Is this how we deal with such an act of grave invasion of one’s privacy, which can have a traumatising effect on a girl so young?

Could he not have been dealt with under another legislation such as the Penal Code?

However, flipping through the Penal Code, I could not find any section under which this man could be charged.

He could not be charged under section 354 of the Penal Code for assault or use of criminal force with intent to outrage a person’s modesty because no assault or criminal force took place in this case.

A person found guilty under section 354 can be punished with imprisonment for a term which may extend to 10 years, or with a fine, or with whipping, or with any two of such punishments, and this is what a peeping tom should deserve, and not a fine of just RM100.

This points to gaping loopholes in our legislation. In fact, there are other instances of disproportionate sentences in our legislation.

For example, Section 377A of the Penal Code stipulates that oral and anal sex is a criminal offence punishable by imprisonment which may extend to 20 years, and the offender shall also be liable to whipping (section 377B).

On the other hand, the act of inciting a child under the age of 14 years to any act of gross indecency with the offender or another person is only punishable with imprisonment of up to five years together with whipping (section 377E).

Comparing these two sections, it appears to be that two homosexual men having consensual sex are committing a more heinous crime than a paedophile or child molester. Can this be?

There are many laws in our country which reflect lopsidedness, and something has to be done. All our archaic and antiquated laws must be revamped to adequately protect the rights of all citizens.

When punishment does not fit the crime, justice cannot and will not prevail.

The writer is a member of the Bar Council’s National Young Lawyers Committee (NYLC). Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society.

For more information about the young lawyers, please visit www.malaysianbar.org.my/nylc.

Babytalk: My Mummy's writings

My Mummy likes to write. When she was younger she used to write for her school magazine as well as some youth magazines. When she started working, she wrote for the Malaysian Bar website as well as the Penang Bar newsletter and since last year, has written two articles for the Star newspaper under the "Putik Lada" column. This column is specially for the National Young Lawyers Committee of which my Mummy is a member.

However, lately, Mummy has not much time to write because she has been quite preoccupied with me, which is why she started this blog. Now she prefers to write about me..haha. Anyway, below is one of my Mummy's articles which was published under the "Putik Lada column" for the Star newspaper. The second will be posted under a new post.



Putik Lada: What constitutes judicial independence?
Contributed by Angeline Cheah Yin Leng

Friday, 20 June 2008 07:41am
©The Star (Used by permission)

Putik Lada by Angeline Cheah

The establishment of an independent commission for the appointment and promotion of judges is a very important step to ensuring the independence of the judiciary without interference from the executive or legislative branches.

There seems to be yet another minor explosion on the issue of our country’s judiciary with the shocking, and yet not that shocking, revelation recently by Justice Datuk Ian Chin of events that happened more than 10 years ago.

It has been said that the pillar of a country’s democracy is the independence of the judiciary. But what exactly constitutes judicial independence?

As law students, we are familiar with the three-prong elements of the doctrine of separation of powers i.e. executive, legislature and judiciary. In its ideal state, these three elements should be independent of one another and none should overlap.

Wikipedia defines judicial independence thus: “Judicial independence is the doctrine that decisions of the judiciary should be impartial and not subject to influence from the other branches of government or from private or political interests.”

The UN High Commission for Human Rights on the basic principles of judicial independence states under Principle 6 that “The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.”

Having said all that, can we really say in Malaysia, being a democratic country, that we truly observe the principles of an independent judiciary?

No doubt, the Lingam video clip issue has certainly cast a damper on that ideal. The very fact that a lawyer could be seen to be brokering the appointment of judges was certainly a shame on the state of our country’s judiciary.

Of course, lawyers were then made the butt of many jokes, typically the ones that go “correct, correct, correct”.

Not to be despaired, we lawyers then took to the streets, in what will go down in history as the “Walk for Justice”.

Hundreds of lawyers braved the rain and the authorities as they walked to hand over a memorandum to the Prime Minister on the state of our judiciary.

With the exposure of this controversial video, slowly but surely the dirt was swept out from under the carpet, and this recent revelation by Justice Chin, I believe is just the tip of the iceberg.

Of course all this stems back to the 1988 judicial crisis in our country with the sacking of some of the top judges, including the Lord President. Now, 20 years later, some of them have since received ex-gratia goodwill payments as promised by the government.

However, monetary compensation can never replace the good name that has been tarnished and the image of our country’s judiciary that has been tainted by these events.

With all these revelations, what is our role as the Bar, especially being younger members of the Bar?

It was reported in a local newspaper lately that civil servants have been urged to help the government rebuild and restore public confidence in the judiciary. How can that happen?

This can only happen if we were to bring back judicial powers to the courts. As members of the Bar, we are directly affected by what goes on in the judiciary.

This is the very reason why we need to push for the establishment of an independent commission for the appointment and promotion of judges. This is a very important step to ensure the independence of the judiciary without interference from the executive or legislative branches.

This, however, sounds easier than it is to execute. Let me quote from the official website of the Judicial Appointments Commission (JAC) of the United Kingdom.

The website states “The JAC is an independent Non Departmental Public Body (NDPB) set up by the Constitutional Reform Act in 2005 to select judicial office holders?As a NDPB we are sponsored by the Ministry of Justice.”

From this we can see that even though “independent”, the Commission was set up by the Constitutional Reform Act (Legislative) and sponsored by the Ministry of Justice (Executive). With these overlaps, how then can we say that the commission is truly independent?

If a commission such as the JAC is set up in Malaysia, I am afraid the same problem may occur. The doctrine of the separation of powers in theory is a good idea, but is almost impossible to execute.

If that is the case, we need to guard most importantly against corruption in all three branches. Even though they may be allowed to overlap, it should be done in a clean and transparent manner.

I believe this quote by Thomas Jefferson sums it up it a nutshell: “Nothing in the Constitution has given them [the federal judges] a right to decide for the Executive, more than to the Executive to decide for them... But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, would make the judiciary a despotic branch.”

Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society.

For more information about the young lawyers, please visit www.malaysianbar.org.my/nylc