Labels: Law, Randomness
Most of you may have read that Azean Irdawaty's son, Benjy, was recently arrested for apparently in possession of 800grams of cocaine, and 140grams of methamphetamine. If true, that would make him a presumed trafficker under our law. The death sentence would be staring at his face.
However, they only charged him with being in possession of 0.24grams of metaphetamine. What happened to the 800 grams of cocaine? And 139.76 grams of metaphetamine which he supposedly have?
To top it up, today, the Star reported that the "powder" found was not cocaine after all!
After bail was granted, he was re-arrested under the Dangerous Drugs (Special Preventive Measures) Act 1985. This Act is the drug version of the ISA. It allows detention without trial.
In addition, Amer Hamzah, his lawyer, was manhandled by the police. Lawyers are planning a protest walk tomorrow.
Read Benjy's story as told by his sister, Elza.
On March 11th, he was arrested at his apartment's parking lot in Segambut. Police brought him to an apartment he rented in Kepong, and after entering, claimed that in that residence, he possessed 800grams of cocaine, and 140grams of methamphetamine, and accused him of processing and trafficking, putting him under the risk of being charged under Section 39B, which carries the death penalty.
On March 12th he was remanded for 7 days. When my parents inquired if we can engage a lawyer, the Investigation Officer told us "No need".
On March 17th, after our family waited more than an hour, we were allowed to see him for the very first time, under supervision.
Again my mother asked if we should get him a lawyer, again the I.O advised against it, claiming "Lawyer tak boleh buat apa-apa sekarang. Buang duit je. (Lawyer can't do anything now. It's simply a waste of money)."
On March 18th, his remand was extended another 7 days. The magistrate inquired why there was no lawyer present for him, and whether he was made aware he had the right to a counsel of his choice. He replied "No." Therefore, he requested for one, and only nine hours later, did the I.O call to inform my mother, who promptly engaged Amer Hamzah Arshad. But the very next day, the police used their Executive authority under Section 28A that vetoed his right to a counsel. All requests made by our lawyer to visit him was denied.
Only after we complained to SUHAKAM, did the police allow Amer to visit him.
On the last day of his remand. After the investigations were concluded. For only 15 minutes.
On March 25th, he was brought to court, and charged under Section 12(2) for possession of 0.24grams of metaphetamin in his Segambut residence. Nothing the police claimed they found in the Kepong residence, the cocaine and shabu that was "already packaged to be distributed" or the so called "cocaine processing mini-lab" was brought to court.
Because there WAS none.
He was released on bail. A trial date was set. He was so close to being free, and seeing his 4 year old son again.
But as he was signing the papers of his release, the Plainclothes were outside waiting.
Not two steps after he came out of the bail department, without any explanation, they re-arrested him. Amer was restrained from protecting him, and only after Amer repeatedly asked them to show their I.D, did they do so. Still, no explanation was given to the family. We were merely told to go to the Headquarters and speak to Inspector Kang. The same guy who claimed my brother possessed the cocaine they NEVER found.
He never saw us, he was "in a meeting." He wasn't too occupied to give the press a statement, but was unavailable to see us.
We were told by the new I.O for this case, and the DSP (the guy who signed the papers denying my brother the right to a counsel) that they are detaining him for 60 days under the Special Preventive Measures Act (LPK), after which, they could further detain him for 2 years if found guilty.
Guilty according to THEM. For under this act, it is a detention without trial, like the Internal Security Act. Any information gathered from "witnesses" and "investigations" will never be disclosed to him or his lawyer, or the court. He will also not be able to defend himself against any allegations. Under this act, he will never have his day in court.
On March 25th, my brother, Ben, was denied his Constitutional rights.
For 2 weeks, our family went through hell. Sleepless nights, press waiting outside our door, Ben had asthma attacks after the police delayed themselves in acquiring the requested medication for 3 days, Mama, who is a cancer patient herself, suffered chest pains and lost her voice.
We felt it was all worth it, for we would be able to have him back.
But now, a new nightmare has begun.
Whether or not Ben is guilty, should not be for the Police to decide. If they HAD the evidence to strengthen their warrant for re-arrest, why was it not brought to court? Why is Ben not given a chance to defend himself? How can we ever know the authenticity of these so called witnesses and their statements? If there were ANY to begin with?
Under this act, I could simply be caught for any crimes of drug offences the police accuse me of, because they can claim they have enough information (even if they have absolutely nothing) and detain me. For 60 days, for 2 years, and even EXTEND it after.
Acts like this and the ISA are licenses for ARBITRARY arrest and detention. Anytime. Anywhere. Anybody.
My family and Amer will not back down. We will fight for Ben's right. We will speak up for all of those who were silenced before us, who will be silenced hereafter.
But we seek your help. In any way at all, help us fight this. Re-post this, write on your blogs, write to your local representative, to our newspapers, and together we shall use our voice, our art, our space, to stand up not just for Ben, but for all our rights.
Liberty is a Constitutional right. It's time to get it back.
I have said it many times and I will say it again. Detention without trial is inhuman, unjust and is an affront to civil society. It causes more damage than the damage which it is designed to avert.
And it breeds abuse. And laziness on the part of our authorities. Why bother to investigate when the so called "bad guys" could be detained without trial?
The above story is but ONE of the thousands of untold stories about detention without trials.
It is but ONE of the agony, anguish and anger which is felt about this utterly uncivilised affront to fundamental liberties.
Do you all want this to happen to you or one of your family members?
It's really tough being a Judge. Really, I think it's a thankless job. A Judge can never do any right.
I think it was in 1996 that a soon-to-be-really-famous High Court Judge politely asked me and my opponent whether we would mind to remain in his chambers for some small talk after we had finished our hearing before him. As I had no other case to do, I obliged the Judge. So did my opponent.
He asked both of us how long we had been practising. I told him I had practised for about 10 years. He smiled and said that I could be a Judge soon (as the Federal Constitution states that a person who has been a lawyer for 10 years or more could be a Judge).
I was wondering what was in the Judge's mind. He looked tired. Something was bothering him. He looked and behaved almost like he was resigned to the hopelessness of it all. He was looking at both me and my opponent intently. There was something that he wanted to say but couldn't.
Finally he asked, "what do you think of justice?" My opponent was senior to me and so he answered first. I can't really remember what my opponent said. After he had finished saying his piece, the Judge looked at me. "What do you think?" he asked me.
I looked at him and without hesitation I said, "Judge, I don't believe in justice!" He was petrified! I know he was going to ask why the hell I was practising law then. Before he did so, I continued, "Judge, human beings are incapable of dispensing justice. Only God can do so. Justice is subjective. The winning party will say they have got justice. The losing party will never say so."
The Judge was unimpressed. He looked deep in thought. He was clearly ruffled by what I had just said. Finally, he said, "could you then tell me what me and all my brother Judges have been doing all these while. And what you and your learned friends have been doing appearing before us?"
"Judge, I am a law practitioner, not a justice practitioner. You and your brother Judges have been dispensing the law all these while. You have been applying the law. In modern societies like ours, adherence with and applying the law brings the connotation that justice is being done. That's it. Justice is a connotation. It is not real. It is a corollary of the application of the law by the Court or Judge. The real justice will only be seen when we all die."
"The law is not always just. Take the land acquisition law for example. How just is a law which permits the Government to force a landowner to surrender his land to the Government? But if the law is applied and the Court imposes a suitable compensation to be paid to the landowner, the perception is that justice is done, but is it really done?" I postulated.
"My God", the Judge said. My opponent was cringing in his seat. "I have never thought about it that way,thank you for telling me," the Judge said, his eyes brightened up a bit.
We continued to chat for a bit after that. I was telling him that jurisprudentially, I belonged to the positivist school of jurisprudence. I believe that the law and morality should be separated. After about 20 minutes, we excused ourselves. As we were going out from his chambers, the Judge said, "have a good life both of you."
We thanked him. That was the last time I appeared before that particular Judge. Two or three months later, he rocked the Judiciary with his resignation. The reason for his resignation rocked the whole Malaysia and even the world. But life goes on in this country of ours. Nothing ever changed. People like this Judge just disappear from the map and from our memory.
I last met him in an event in Subang Jaya some months ago. He was still his jovial friendly self. And he looked much happier. May God bless him with a long and healthy life as well as peace of mind.
Fast forward to the present time.
When Justice Ariff Yusof (then he was a Judicial Commissioner) dismissed Gobind Singh Deo's suit against the speaker of the Parliament for suspending him (Gobind), many articles were written and posted on the net about it. Justice Ariff was questioned why he did not follow the Federal Court's decision in one of the Perak Menteri Besar constitutional circus. The Federal Court had in one of those cases held that the Court could review the decision of a Speaker.
Under the law, a decision of a higher court is binding on a lower court. Thus the decision of the Federal Court (which is the highest court in the land) would be binding on the High Court (where Justice Ariff sits).
In dismissing Gobind's suit against the Speaker of Parliament, Justice Ariff applied the clear wording of the law as stated in the Federal Constitution, which says:
"The validity of any proceedings in either House of Parliament or any committee thereof shall not be questioned in any court."
Justice Ariff opined that while the Federal Court recognised the power of the Court to question whether an act of the Legislative Assembly has any legal basis or otherwise, any act of the Assembly which is supported by any legal basis would be immuned from such scrutiny.
In all the articles written about his decision on the net, Justice Ariff was vilified by all and sundry, especially by the supporters of DAP or the Pakatan Rakyat. Some even called him stupid. Some others even questioned his impartiality.
Last week, in yet another high profile case, Justice Ariff held that MACC did not have the power to interrogate witnesses or potential witnesses after office hours. He then ruled that MACC's action in interrogating a potential witness at night was illegal and ordered compensation to be assessed and paid to the victim.
In doing so, Justice Ariff was of course interpreting the law as it is stated in the MACC Act. That Act says any person served with an order shall attend for examination and shall continue to do so "from day to day until the examination is completed" (section 30 (3) (a) of the MACC Act.
As the words "day to day" was not defined by the Act, Justice Ariff applied the literal meaning to the word and came to the conclusion that MACC does not have the right to force any person to give statement at night. Justice Ariff applied the law as he understands it. He applied the law as it is worded.
Many articles were also written about this decision, whether in the mainstream mass media or the net. The IGP made some statement which effectively ridiculed Justice Ariff's decision. The chief of MACC, while saying that MACC would abide by the ruling, was also sulking and whining like some small girls whose lollipop has been taken away.
This time the Pakatan Rakyat supporters hailed Justice Ariff as a hero of sorts. He was seen as a learned Judge who protects fundamental liberties. All the vilifications he received just after Gobind's case were quickly forgotten.
But, as I have said at the start of this article, there is no justice in this world. There is always one side which would say justice has not been served. My fellow blogger Rocky posted an article on his blog about Justice Ariff's decision. He somewhat said that Justice Ariff's decision is weird. Exactly, this is how he puts it:
"Well, I agree with blogger Syed Akbar Ali that in this case, the Court has acted really weird."
Apparently, the Scotland Yard, ICAC and Interpol could take statements at night. So, why not MACC? I must confess I do not know whether that is right. And I do not know what the law governing those bodies provide in terms of taking witness statements. I would also refrain from analysing whether MACC is comparable to all those bodies in terms of performance and ethics.
Whatever it is, Justice Ariff's decision will be appealed by the Attorney General. So, let's not go into the merit of it for the time being.
The point is the comments made under Rocky's article. This time, Justice Ariff is again vilified, especially by commentators who are obviously pro-government. One of the commentators noted that Justice Ariff is a former PAS legal advisor. He then concluded that "something is not right." Basically he was insinuating that Justice Ariff was being dishonest.
Another commentator asked whether Justice Ariff had any problem with the MACC. Perhaps the most unfair comment was this:
"Param Tak Suara said...
So how much did Karpal pay the judge?"
A Judge's good work will only last and be appreciated until his next decision which is unfavourable to the relevant party. That is obvious. Many of us have somewhat forgotten how Justice Ariff had conducted himself in accordance with the best tradition of the Judiciary. When the Nizar v Zambry case was fixed for hearing before Justice Ariff, he quickly made it known to all parties that he was a PAS legal advisor. He then invited arguments on whether he should disqualify himself. He later disqualified himself from hearing that case after listening to all parties interested.
That was how conscientious Justice Ariff was.
In Gobind's case he ruled against Gobind. What did that say about Justice Ariff's impartiality, considering that he was a PAS advisor? And now in the MACC case, he applied the law as he understands it. In doing that, he held against the MACC, and consequently the government.
To half of the world, he dispensed justice in all those cases. To the other half, he was a dishonest and partial Judge.
I think I have made my point.
Labels: Encouragement, Exams, Law, Pictures
Josh..
Gained Freedom: 2010...
Taken + Pwned by Miisz Joanne
Having G.A.S but no cash wtf
Currently Loves to take pictures with his old PnS Digital camera
BlogSpot Login
Facebook
Twitter
A7X
Trivium
BoA
YUI
