When I read Art Harun’s article Of sodomy, caning and potato chips in The Malaysian Insider, my blood pressure went ballistic because of the arrogant nonchalance of our Appeal Court judges in casually dismissing an issue of great constitutional importance.
Some months ago, my learned friends Fahri Azzat and Amer Hamzah appeared in the Court of Appeal to argue an appeal. They were representing a man who was found guilty of sodomising a boy. He was sentenced to 60 years’ jail and 22 strokes of the rotan although he maintained that the sodomy acts were consensual.
During the appeal, the two lawyers brought up constitutional issues which have never ever been brought up before. As these issues were never brought up before, it follows that there has never been any judicial pronouncement on those constitutional issues. Those issues are:
• the law provision which makes the act of sodomy is unconstitutional as it transgresses the right to privacy, which is a part of our fundamental liberties;
• the act of criminalising and penalising the act of sodomy, when it is consensual, amounts to an act of discrimination and inequality, especially against men with homosexual tendency. As discrimination on the basis of, among others, gender, is prohibited by the Constitution, it follows that the criminalisation of consensual sodomy is unconstitutional;
• the caning sentence is also discriminatory in nature as under the law women cannot be caned.
Now, I am not going to touch on whether the arguments were correct or not. But these arguments were taken up for the very first time in our legal history. Furthermore, they were taken up in the second highest court of the land, namely, the Court of Appeal.
It goes without saying that the Court of Appeal should have seen it fit to hear the arguments in totality. Then it should consider the arguments in depth. Then it should decide on the arguments. After that, it should write proper and well-reasoned grounds for its judgment so that the people know what it was thinking and how it came to such thinking.
That decision would have been one of the most important decisions in our constitutional law. It will serve as a precedent and as a guideline to all of us Malaysians, to the police, the A-G Chambers, to legal practitioners, law lecturers and law students alike.
Guess what happened? Fahri was cut short in the middle of his constitutional issues/points. The learned judge asked him to stop arguing midway through his arguments. He was asked to go to the next point. After hearing the both of them, the Court of Appeal dismissed their case there and then.
Quite obviously, the Court of Appeal did not think much of the various constitutional issues — which touched on people’s constitutional rights — which were raised for the first time.
It was reported that one of the learned judges said, “Are you saying that (homosexuality) among consenting adults is legal? In other words, what happens in the bedroom is none of the government’s business?” during the hearing.
Needless to say, no written judgment was given until the time I am writing this (March 5).
Art then went on to show how, by Grand Canyon-ish contrast, the Court of Appeal in the UK sat to hear a question on whether the snack product Pringles is similar to a crisp and made from the potato and therefore subject to standard-rate VAT.
After long and laborious arguments, the UK Court of Appeal considered what was branded as an “Aristotelian question” and came up with a judicial pronouncement which is not only well reasoned but also a delight to read.
As Lamar S Smith said: Judicial abuse occurs when judges substitute their own political views for the law.
Most of our judges are political appointees. While that in itself is not a major problem as we also see that in other countries and we would expect the judges to rise above gutter politics, unfortunately our Malaysian version have been and continue to be notoriously partisan or beholden to the ruling party.
On top of their lack of moral courage to act independently without fear and favour, many lack the intellect (don't expect them to be competent on finer points of the law - remember the Adorna Property case?) and lazy (we've read of how some judgements, even those cases which had sentenced the accused to the gallows, have yet to be written - so how could the defence be able to appeal?)
Besides most of our civil servants, judges, MACC and police officers, keep an eye on which way the political wind blows, as exemplified in the current Sodomy II case - hardly a conducive time for the Appeals Court to pontificate on constitutional laws which may (gasp) benefit Anwar Ibrahim.
What should you expect when afterall the nation’s leading lawman, the AG, has been resoundingly condemned by the editorial of The Malaysian Insider in The AG is ‘not in the interest of justice’ — The Malaysian Insider which wrote:
Is it any wonder why Attorney-General Tan Sri Abdul Gani Patail can’t walk the talk about justice in the country? He put his foot in the mouth again last night when justifying that charging the Al-Islam magazine editors and reporters who offended Catholics in an article would have been “not in the interest of justice”.
His statement was outrageous at the very least as he was offering protection to a group of people who have not had the decency to apologise for their actions. And Gani was condoning vigilantism as the reporters had participated in a Catholic rite while investigating an allegation that Muslims were being converted. […]
Simply put, this man by his statement has shown himself to be incapable of protecting the interest of Christians and non-Muslims in the country.
One has to look no further than across the Causeway where bloggers who insulted Islam were sanctioned and a Christian pastor who ridiculed Buddhism and Taoism was warned by Singapore’s Internal Security Dept and forced to apologise.
In Malaysia, the AG has the cheek to turn the other cheek and let people who insult a religion get away with it because in his mind, it is “not in the interest of justice”. One can only wonder what justice is for the AG, for his actions in the Al-Islam case show he is “not in the interest of justice” in any time or situation.
Read also Malaysiakini’s Kit Siang: AG should be censured over Al-Islam decision and Insider’s AG’s acumen for asinine answers – Martin Jalleh.
The judges’ arrogant nonchalance (tidakapathy) in brusquely & blatantly brushing aside an important constitutional issue no doubt stems from their knowledge that the government (ruling party) will not allow them to lose their jobs so long as they, the so-called constitutional umpires, always blow the whistle against the other side.
"A judge must bear in mind that when he tries a case he is himself on trial" - Philo, Special Laws, 1st century