JPA Scholarships?

Wednesday, June 16, 2010
JPA Scholarships?
Assalammualaikum.

Just from the title of this post, I think many readers will know what I would be talking about.
I talked about my ignorance in how the money in Malaysia had been spent and now, after announcing the reduction/withdrawal of subsidies, another announcement was made.

Few days back, I'm pretty sure it was on Monday, I heard of the news that JPA will no longer sponsor students doing first degree overseas. And I was totally shocked. As a JPA-sponsored student myself, I'm fully aware of the benefits not only me, but my whole family is getting from the scholarship. I can't imagine how hard my parents will have to suffer to work to put me where I am studying now, if it wasn't for the sponsorship by JPA. And I am also aware of the neck-to-neck competition I went through before securing myself this scholarship. And I really hope my siblings will get a chance to secure themselves a scholarship too.

And now, JPA is going to PHASE OUT the scholarships.
According to the New Straits Time (June 14th 2010), the government will be phasing out the scholarship and offer more scholarships for courses in local universities. Click here for news from The Star.

However, the minister mentioned that undergraduate students who secured a place in top foreign universities such as Oxford or Cambridge may apply for the scholarships. And there will also be scholarships for postgraduate studies.

And the move was made because: THERE ARE COMPLAINTS THAT THERE WERE NOT ENOUGH SCHOLARSHIPS FOR OUTSTANDING SPM LEAVERS.
Funny, there were not enough scholarships so, reduce the scholarships instead of increasing them?

The minister also said that by cutting off the burden of funding undergraduates overseas, the country will have more money to fund students locally. And he said it's impossible to increase the number of scholarships as we do not have enough money. The amount of scholarships offered currently is 1,500. 300 are allocated for the Perdana scholarships. That left only 1,200 places. Only 1,200 places for more than 15, 000 applicants. (Source: NST and The Star). And that has NOT INCLUDED the "back door" people. There are bound to be people using "cables" and "contacts" to get themselves scholarships no matter how "transparent" JPA tried to claim to be. If not, explain how come some of the JPA scholarship receivers are from very rich families? I thought the scholarships are supposed to be only for mid to low-income families?

On June 15th (one day after the deadly announcement),
1) MIC and MCA urged JPA to retain the scholarships (source: The Star)

2) JPA emphasised that reducing the scholarships will not bring bad effects to the country, instead it will help the development of local universities. (source: NST, Utusan

3) UMNO Youth urged the government to revise the move to drop the scholarships offered for students. Source: Utusan.

As for now, 56% of the scholarships under the race quota are allocated for bumiputeras while 44% are for non-bumis (source: NST).

I believe that there are at least 3 most important components in building a good country; the army, the leaders and the people.

Other than occasional news about Malaysia buying new submarines or training our soldiers, I am not sure how good our defense is. Seriously, I don't know and I better not comment on it. But if it really is outstanding, why not send some for the Gazans. Heh =p.

The leaders; okay let's not talk about them. Some of them really are trying to help the people, congrats. But some of them are busier attacking their colleagues than taking care of their own responsibilities, thank you.

The people.
Although education is not the only way to success, but one can never deny the importance of education, at least to most of the people. Thus, by depriving the people from the chance of studying overseas, won't it not hasten the development and progress of our country?

Ok fine. Some might argue that studying overseas and in local universities do not bring much difference. Even the minister asked why are we doubting the quality of our local universities?

Well, in my year (2007), there were 1,800 scholarships being offered, and of that 80% are for science-based courses. Of this, 50% are for medicine. (Source: The Star) Ok, let me do the calculation, 720 places out of 1,800 places are for medical course. And 200 medical students in a single batch is considered A LOT, believe me. Doctors are not supposed to be produced like water bottles. There should be a quantity limit to a class. Thus, with this 720 new medical students per year, with 7 local national universities offering medical course (UM, UKM, UPM, UIAM, USM, UMS/Unimas and USIM) PLUS the numbers of students not receiving the JPA scholarship but doing medicine, does our country really have the capacity to accommodate us?

In an article entitled "Mushrooming Medical Schools Pose Concern" published in Malaysian Medical Resources (http://medicine.com.my), the quality of local medical graduates are questionable. So, this small country of ours actually STILL DO NOT HAVE THE CAPACITY to produce good doctors in huge amount, which was the reason medical students being sent overseas in the first place. I know the article did not suggest sending students overseas but, to develop our country, won't we need to do the best we can first? And that certainly is not by producing medical students like mushrooms. Undoubtedly, numbers of students interested in doing medicine will never decrease as years pass, thus there will never be shortage of medical students enrolling in med schools. And where there is demand, there will be supply. What need to be concerned off are the quality of "these supplies" that are created when there is excessive demands.

(I'm talking based on experience and I'm also giving medical course as an example because I'm in it. I do not know how the situation is in other courses)

Apart from that, do you really think there is no difference between a local and overseas graduate? An overseas (or at least JPA students) graduates were sent out there to live on their own with friends, facing all the challenges and exposures by themselves. And that made them a different person compared to what they were initially. Not to say local graduates are not exposed but, accept the fact, the exposures ARE different. Hence, Malaysia will not have only "one type" of people; those who graduate locally. With students graduating overseas, Malaysia will have a pool of variety professionals, and is that a bad thing?

And do you know that many people are amazed that Malaysia actually provides scholarships for the outstanding students to study abroad?
Isn't that giving Malaysia a better image?
Some of the people I know, from less developed countries were very much amused and "jealous" that Malaysia can afford to send us overseas.
And the government want to take that back?
I thought we are always working 24-7 to make sure Malaysia has good image?

With the growing number of population, isn't it just logic that the resource is expanding, and the numbers of scholarships available increasing?

How come we have not enough money left to fund deserving students?

Where had all the money been spent to?
The publicity of 1Malaysia?
The diplomatic visits all around the world by our leaders?
The feasts, dinners and festivals?
The luxury of "some people"?
And all that were done on the expense of scholarships of students?

I wonder where do all these ministers sent their kids to?
Local universities or overseas?

I'm asking. Just some questions. Full stop.

To not receive any complaints from the public on being "left out" or being "done injustice to" is impossible. But, to cancel off the scholarships because you can't satisfy everyone?
It's like killing all the chickens in the barn just because one or two of the chickens died of hunger.

In case I have not made my point clear, I totally disagree with the move of phasing out the scholarships.

We still need that.

For further readings:
Some of the blog posts by Dr Mahathir on the money of Malaysia:
1) Malaysia's Generosity on April 29, 2010
2) Not So Generous? on May 3rd, 2010

Zainul Arifin in his article in the New Straits Time on June 16, 2010 agrees with the move that the overseas scholarship shall be reduced. To read his opinions, click here.

p/s: I spent a very long time writing this post, when I should actually read on Lung Cancer. This news had been bothering me ever since it was announced.
And I hope the government will do the correct decision and change the announcement for the benefit of all people.

And JPA stands for Jabatan Perkhidmatan Awam or Public Service Department (PSD) in English.

-AkMaR-
http://nur-akmar.blogspot.com

Wednesday 16th June 2010
10.59pm

Courtesy of http://nur-akmar.blogspot.com/2010/06/jpa-scholarships.html

Boyle: Independent Eelam will be a bulwark for India

Boyle: Independent Eelam will be a bulwark for India
[TamilNet, Sunday, 06 June 2010, 00:02 GMT]

Professor Francis A. Boyle, an expert in international law at the University of Illinois College of Law, said that an independent state of Tamil eelam south of the Indian border will add to India's security, and therefore, India should actively intervene in the Tamil struggle and facilitate the formation of Tamil eelam. Boyle was talking to the popular Tamil Nadu Tamil biweekly magazine Junior Vikatan in an exclusive interview given to the magazine's US correspondent Prakash M Swamy early part of May.

Text of the translation of the interview published in Vikatan follows (Note: original interview to Vikatan was in English):

Vikatan: One year has passed since the defeat of the Liberation Tigers of Tamil Eelam (LTTE). Do you think birth of Tamil Eelam is still a possibility?

Professor Francis A. Boyle, University of Illinois College of Law
Professor Francis A. Boyle, University of Illinois
Boyle: Faith propels life; in recent times, terrorism label was stamped on those who led and supported Tamil eelam struggle. Now, since Tiger leadership has disappeared, Rajapakse is on his mission to destroy the Tamil people. Sri Lanka has no respect for any international law. India [as a regional super-power] has failed to contrain Sri Lanka's conduct. Transnational Government of Tamil Eelam (TGTE) will reflect the conscience of Tamil people. Counselors elected for TGTE will determine their future. Many directives will be taken at their first meeting.

Vikatan: Opponents claim that TGTE have only web presence. Can you comment?

Boyle: After the genocide, where is the space for Tamil leadership to operate or even emerge in Sri Lanka? Surviving leadership are all outside of Sri Lanka. Can these leaders visit Sri Lanka? Under these circumstances Tamils only option is the formation of Transnational Government. The counselors are elected democratically. Liberation struggle is taking its step in an entirely new direction. Let us wait to see the impact.

Vikatan: You support Palestinians, who have a state. Tamil people do not have a state.

Boyle: Not quite true. Tamil homeland is occupied by Sri Lankan state. This is sad! Tamils are enslaved in their own state. Rajapakse is supported by Israel, which is occupying Palestinian land. Wars for Palestinian independence and Tamil Eelam independence are similar. Both struggles are labelled as terrorism, illegal occupation. Currently, 127 out of 195 members of the United Nation have recognized Palestine. President Obama has recently said that an independent Palestine should be allowed to exist without security threats.

Vikatan: US, while fully engaged in Palestinian-Israel conflict refuses to play an active role in Tamil Eelam struggle. Why?

Boyle: Israel is the reason. Israel fully supports Sri Lanka. Obama supports Rajapakse administration because of China. America is concerned by the increasing Chinese influence in Sri Lanka, and that China may even be allowed to build a military base in Sri Lanka. U.S. even supported the dud committee set up by Sri Lanka to investigate the rights violations in Sri Lanka. This committee is useless, and without teeth. This committee will not dare investigate Rajapakse brothers. What is troubling is the UN ambassador to UN [and later Secretary of State Clinton] have extended their support to this committee.

Vikatan: What types configurations are possible for a future Tamil Eelam state?

Boyle: First, Tamil eelam can be an independent sovereign state – this is the wish of Tamil people. Second, Tamil eelam can be similar to that of Commonwealth of Puerto Rico – Puerto Rico is a sovereign state, at the same time, comes under America’s confederation. Third, it can be an independent province within a sovereign Sri Lankan state.

Vikatan: Could you comment on Indian government’s refusal to issue visa to Prabhakaran’s mother?

Boyle: Your central government has directed its anger against Prapakaran on his mother. Is Ms. Parvathi an extremist? Is she scheming to over throw your government? She is eighty years old; she does not even have the strength to stand on her own. This is a serious violation of human rights. India has capable lawyers. Do you have honest and independent courts? Why have not this act been challenged in a court of justice in India? In the U.S., many lawyers and rights organizations would have immediately filed challenges in US Courts. India should not have politicized a humanitarian matter. Other than India getting a fleeting satisfaction by refusing visa to Pirapaharan's mother, no other useful purpose was served by India's act. Is India trying to punish Pirapakaran who is dead and gone..?

Vikatan: What should be India's approach to dealing with Tamil Eelam struggle?

Boyle: I am not qualified to advise India. As an American who loves India, I can share some thoughts. Tamils worldwide are connected culturally and emotionally to Eelam Tamils, and therefore, to their struggle. In this context, recognize that Prapakaran era is over. Do not continue to show vengeance on Tamils and their struggle. India should change the way it views struggle for Tamil independence. In the changing geo-political structure, close alliance between china and Sri Lanka will be a danger to everyone. Independent Tamil Eelam will add security, and will be a bulwark to India's security. I am not a politician; an attorney, of Irish descent. I am not even a Tamil, but I feel their pain. India should actively intervene to facilitate the birth of Tamil Eelam.

Note: Professor Boyle extends his apology, and his congratulations to Mr Karuppan for his heroic legal action on behalf of Mr. Prabakharan’s Mother. Prof Boyle regrets that he had not read about the legal action at the time he gave this interview.

Mr Karuppan in a communication to Prof Boyle following this article noted that "Pirapaharan's mother was not refused visa. She was deported forcibly in the same plane back to the orgination Kaula Lampur. Although She had a valid visa issued by the High Commission of India in Malaysia on her valid Sri Lankan Pass port.

* Karuppan v. Govt. of India

I had challanged the same up to the Supreme Court of India from the High Court stating that deportation without any reason is illegal, when refugees without visa were not deported. Sought directions from the High Court to ask the Govt of India to send a special plane and bring her back and continue treatment at State Expense."


Related Articles:
21.04.10 Chennai High Court calls for clarification on deportation of..

Matthias Chang: Martyr Without A Cause?

By NH Chan

A deliberation on whether Matthias Chang was a victim of judicial oppression through an examination of the law of contempt; from its coming to being to its evolution to what it is today and how it applies to Matthias Chang’s unruly behaviour in court.

In the Sun newspaper of Friday, 2 April 2010 I came across this story:

Dr. M’s ex-aide starts jail term for contempt

KUALA LUMPUR: Matthias Chang, former political secretary of ex-premier Tun Dr. Mahathir Mohamad, was sent to prison after he refused to pay a RM20,000 fine for contempt of court.

Chang was served the committal order by the High Court before he was taken to Kajang prison.

The lawyer was cited for contempt of court on March 25 when he failed to apologise to the court during cross-examination in his defamation suit against American Express (Malaysia).

The committal order stated: “At about 2.30pm to day (March 25) … when the court refused your request to address the court as a witness, you lost your cool and walked out of the witness box and thereafter left the court during the proceedings. Your conduct is a contempt in the face of the court by virtue of Order 52 (1A) of the Rules of the High Court.”

Judge Noor Azian Shaari had ordered Chang to pay a fine of RM20,000 within seven days, in default [to serve a] month’s jail sentence.

The judge says that Chang had committed contempt in the face of the court.

I will first tell about how the law of contempt came into being. Then I will tell about how it had evolved into what it has become in modern times. But before that you may wish to know,
What is contempt in the face of the court?

If you have read my book How to Judge the Judges, 2nd edition, Sweet & Maxwell Asia, you will come across this passage on page 61:

Contempt in the face of the Court

If you attack the character or conduct of a judge it could be termed a contempt by scandalizing the judiciary. If you make the same attack in court or if you disrupt proceedings in court it is called contempt in the face of the court.

This was what the judge Noor Azian Shaari meant when she told Matthias Chang “Your conduct is a contempt in the face of the court.” Chang had disrupted court proceedings as a witness when he walkout in a huff.

The difference between contempt by scandalising the judiciary and contempt in the face of the court is that the latter is dealt with summarily, that is to say, done or made immediately and without following the normal procedures – this is the dictionary meaning. And this is how Lee Hun Hoe CJ (Borneo) put it in Cheah Cheng Hoc v Public Prosecutor [1986] 1 MLJ 299 (SC), at p 301:

The power of summary punishment is a necessary power to maintain the dignity and authority of the Judge and to ensure a fair trial. It should be exercised with scrupulous care and only when the case is clear and beyond reasonable doubt. As Lord Denning, MR said in Balogh v Crown Court [1974] 3 All ER 283, at 288:

“It is to be exercised by the judge of his own motion only when it is urgent and imperative to act immediately – so as to maintain the authority of the court – to prevent disorder, to enable witnesses to be free from fear, and jurors being improperly influenced, and the like …”

This power must be used sparingly but fearlessly when necessary to prevent obstruction of justice. We feel that we must leave the exercise of this awesome power to the good sense of our judge. We will interfere when this power is misused.

Now that we know what is contempt in the face of the court better than any other uninstructed person, we should not listen to a non-lawyer, like Che Det, giving pompous legal advice and telling-off the judge that “no one should be the prosecutor, the judge and the executioner.” Doesn’t our former prime minister know that summary decisions are part of living in a civilized society? The umpire in a badminton match does it all the time, so does the referee in a soccer match and other sporting activities, but most of all, and he should know as he was a parliamentarian, the speaker of the House of Representatives or Legislative Assembly does it all the time at every sitting; they are all, to use his own words, “prosecutor, judge and executioner.”

Contempt in the face of the court means “the power of summary punishment to be exercised by the judge of his own motion only when it is urgent and imperative to act immediately” so as to prevent – as in the case of Matthias Chang – disruption of the court proceedings. This is a necessary power to be exercised only in the most pressing cases so as to deal with the circumstances or situations stated by Lord Denning in Balogh v Crown Office.
Matthias

Inset: Matthias Chang, source:minaq-jinggo.fotopages.com

The history of this awesome power of the judges

But first let me relate the historical evolution of this awesome power of a judge at common law. I won’t say it is a draconian power because nowadays, that is, ever since 1936 – since Ambard v A-G for Trinidad & Tobago, a more tolerant attitude is taken by the common law towards critics of the judiciary.

*
On how the law of contempt came into being

At the beginning, before 1936, it was an excessively harsh power; one could say it was a draconian power. But why was it so? Because during the time of despotic kings of England, the king’s judges were lions under the throne of the king, and they were wielding the power of the king in the administration of the king?s notion of justice – do remember that the common law of England is entwined in the history of England. This was how Mr. Justice Wilmot (in an opinion which was not delivered because the prosecution was dropped) explained the purpose of this law in R v Almon 97 ER 94, 100 (1765):

The arraignment of the justice of the Judges is arraigning the King’s justice; it is an impeachment of his wisdom and goodness in the choice of his Judges, and excites in the minds of the people a general dissatisfaction with all judicial determinations and indisposes their minds to obey them; and whenever men’s allegiance to the laws is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and, in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the Judges, as private individuals, but because they are the channels by which the King’s justice is conveyed to the people.

In 1788 in the case of R v Watson 2 Term Reports (Durnford and East) 199, 205 (1788) Mr. Justice Buller expressed similar sentiments:

Nothing can be of greater importance to the welfare of the public than to put a stop to the animadversions and censures which are so frequently made on courts of justice in this country. They can be of no service, and may be attended with the most mischievous consequences. … When a person has recourse … by publications in print, or by any other means, to calumniate the proceedings of a Court of justice, the obvious tendency of it is to weaken the administration of justice, and in consequence to sap the very foundation of the Constitution itself.

*
And how from such beginnings the law of contempt had evolved to what it is today

Despite the demise of the reign of despotic kings where it ended with the flight of King James II from the realm (James II was the last of the Stuart Kings of England, 1603-1714) – “the grandiloquent fear that criticism of the courts may endanger civilization” had continued right up to the early twentieth century. “The branch of contempt of court known as ’scandalising the judiciary’ served to inhibit criticism of the courts by laymen. To a limited extent it remains a fetter on freedom of expression about judicial performance.” – see Pannick, Judges, page 109.

In R v Gray [1900] 2 QB 36, 40, Lord Russell of Killowen CJ laid down the law of contempt in this way:

“Any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority, is a contempt of court.”

This is nicely summed up by David Pannick in his book Judges, at page 110:

“The grandiloquent fear that criticism of the courts may endanger civilization has, in the twentieth century, continued to lead to the punishment of persons who have insulted members of the judiciary or impugned their impartiality.”

The book then goes on to say, pp 110-112:

English law remained unwilling to leave it to public opinion to assess whether criticism of the judiciary had any basis.

Mr. Justice Darling was the presiding judge at the Birmingham Spring Assizes in 1900. Before the start of a trial for obscene libel, he warned the press that they should not publish indecent accounts of the evidence. After the conviction and sentence of the defendant in the criminal case, Mr. Gray wrote and published in the Birmingham Daily Argus, of which he was the Editor, an article [in which he described] how Mr. Justice Darling,

” … filled in a pleasant five minutes yesterday. … Mr. Justice Darling … [warned] the Press against the printing of indecent evidence. His diminutive Lordship positively glowed with judicial self-consciousness. … He felt himself bearing on his shoulders the whole fabric of public decency. … There is not a journalist in Birmingham who has anything to learn from the impudent little man in horsehair, a microcosm of conceit and empty-headedness. … One of Mr. Justice Darling’s biographers states that ‘an eccentric relative left him much money.’ That misguided testator spoiled a successful bus conductor.”

This splendid piece of invective effectively punctured the vain pretensions of Mr. Justice Darling whose injudicious behaviour on the Bench was frequently a disgrace. …

Mr. Gray’s prose was not appreciated by the courts. He was brought before the Queen’s Bench Division charged with contempt of court. He swore a groveling affidavit of apology, no doubt on sensible legal advice that otherwise there would be even more serious consequences for him. …

Lord Russell, the Lord Chief Justice, … gave a solemn judgment, noting that it was “an article of scurrilous abuse of a judge in his character of judge – scurrilous abuse in reference to the conduct of a judge while sitting under the Queen’s Commission, and scurrilous abuse published in a newspaper in the town in which he was still sitting under the Queen’s Commission.” He concluded that there was no doubt that the article amounted to a contempt of court. … he was fined 100 pounds and ordered to pay the costs.

The above case was reported in the Law Reports series as R v Gray [1900] 2 QB 36, 39-42. This is the case where Lord Russell of Killowen had laid down the draconian law of contempt which had stifled criticisms of the judiciary in the early part of the twentieth century until the judgment of Lord Atkin in Ambard v A-G for Trinidad & Tobago ended it in 1936.

Here are a couple of examples of those pre-1936 cases:

i) In R v Vidal, The Times 14 October 1922 a dissatisfied litigant who believed that the President of the Probate, Divorce and Admiralty Division of the High Court was a party to a conspiracy against him walked up and down outside the Law Courts with a placard accusing the judge of being “a traitor to his duty.” He was sentenced to four months’ imprisonment.

ii) In R v Freeman, The Times 18 November 1925 another dissatisfied litigant sent a letter to Mr. Justice Roche, who had decided a case against him, accusing the judge of being “a liar, a coward, a perjurer.” He was held of being in contempt of court.


* But the tide of the pompous attitude of the judges in their own conceit and self-importance changed abruptly in 1936

At page 114 of David Pannick’s book Judges: “More recently, courts have emphasised that only in very exceptional cases will charges of contempt be brought against those who criticise the judiciary.”
Lord Atkin explained it in the Privy Council case of Ambard v A-G for Trinidad and Tobago [1936] AC 322, at p 335:

… whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong-headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.

This case was decided in 1936, so it is embodied in our common law of contempt by virtue of section 3(1) of the Civil Law Act 1956 which says:
(1) Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the court shall:
(a) in Peninsular Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on April 7, 1956;
(b) in Sabah, apply the common law of England and the rules of equity, … as administered or in force in England on December 1, 1951;
(c) in Sarawak, apply the common law of England and the rules of equity, … as administered or in force in England on December 12, 1949, …

But tragically, to the many who have suffered at the hands of the judges, the blame has to be placed on our Supreme Court for being under the delusion that the common law of England on contempt was that as stated in R v Gray [1900] 2 QB 36 and they have applied it as the common law which applies in this country by virtue of section 3(1) of the Civil Law Act 1956. They were oblivious of Ambard v A-G for Trinidad and Tobago which was decided in 1936 and which has since then completely changed the way the common law world looked at the law of contempt of scandalising the judiciary.

The result that Ambard v A-G for Trinidad & Tobago has brought about is that all previous Supreme Court cases that depended on R v Gray were decided per incuriam (by oversight, failure to notice).
The effect is that all those cases of contempt mentioned in the judgment of the Supreme Court in Attorney-General, Malaysia v Manjeet Singh [1990] 1 MLJ 167 have failed to apply the common law of England on contempt as it stood in 1956 – in other words, our courts by applying R v Gray, a 1900 decision, have consistently applied an obsolete law.

The judgment of Mohamad Yusuff SCJ at pp 177, 178 belies the mediocrity of the judgment itself. He said:

The Supreme Court has this far consistently applied the common law principle of contempt of court as seen in the judgments of these cases, viz: Arthur Lee Meng Kwang v Faber Merlin (M) Bhd & Ors [1986] 1 MLJ 193, Lim Kit Siang v Dato’ Mahathir Mohamad [1987] 1 MLJ 383 and Trustee of Leong San Tong Kongsi (Penang) Registered & Ors v SM Idris [1990] 1 MLJ 273. All these cases dealt with contempt in scandalizing the court. … the common law, as has been expounded, applied and decided by our courts after April 7, 1956, by virtue of the Civil Law Act 1956, has become part of our law.
… On the law applicable to this case … as mentioned earlier, the principle of common law of contempt as stated in R v Gray [1900] 2 QB 36 still applies in our country.


This judge and all the other judges who have decided the cases of Manjeet Singh, Arthur Lee, Lim Kit Siang and Leong San Tong Kongsi did not realize that R v Gray had been superseded by Ambard v A-G for Trinidad & Tobago. This judgment of the Privy Council as to the obsolescence of the offence of scandalising the judiciary has demonstrated that R v Gray is no longer good law. (Emphasis by LoyarBurok)

Therefore, the common law of England on the law of contempt of scandalising the judiciary as it stood in 1956 is Ambard v A-G for Trinidad & Tobago; the judgment of the Privy Council by Lord Atkin allows for criticism of the judiciary even in the ferocity of the language used. The common law of England on the law of contempt as administered in England in 1956 is not R v Gray (which is obsolete) but Ambard v A-G for Trinidad & Tobago.

Poor Arthur Lee, and poor Lim Kit Siang, and poor Manjeet Singh and poor Murray Hiebert (Murray Hiebert v Chandra Sri Ram [1999] 4 MLJ 321), they have all been convicted of the offence of scandalising the judiciary on an obsolete law.

Tragically, the obsolescence of the offence of scandalizing the judiciary has escaped the uninspired minds of our judges.

Mr. Martin Jalleh has suggested that I be charged with contempt of court. I think it was an unreasonable request because such an event would put the entire judiciary in a quandary. Those cases, such as Arthur Lee, Lim Kit Siang, Manjeet Singh, and even Murray Hiebert are over, bar the shouting, – the phrase is used when any controversial event is said to be technically settled but arguments about the outcome continue, albeit with little effect on the result: see Red Herrings and White Elephants, Albert Jack, Metro Publishing Ltd, London, 2004. I would suggest that it is best to let sleeping dogs (or should I say, lions) lie.

Even our former prime minister Tun Mahathir admitted in Che Det that when he gave his opinion that the judge should not be prosecutor, judge, and executioner in Matthias Chang’s case – he did so with trepidation. Actually, he has nothing to worry about. We are both on the same boat. Our defence is this:

By virtue of section 3(1)(a) of the Civil Law Act 1956, the common law of Peninsular Malaysia is the common law of England as administered in England on April 7, 1956. The common law of England on the law of contempt of scandalising the judiciary as administered in England in 1956 is Ambard v A-G for Trinidad & Tobago which allows for criticism of the judiciary even in the ferocity of the language used.

This briefly tells the history and evolution of the law of contempt up to the present time.

We can now proceed to look at Matthias Chang’s case with a broader and better understanding.
How does the law of contempt in the face of the court apply to Matthias Chang?
As far back as in 1527 there is this tale of Sergeant Roo, “a great lawyer of that time, more eager to show his wit than to be made a Judge,” who had composed a satire on the abuses of the law for which Lord Chancellor Wolsey was responsible. The satire was delivered in the presence of the King. Roo was summarily dispatched to prison – see Judges by David Pannick, Barrister; Fellow of All Souls College, Oxford, OUP, 1987, at page 105 to which he has also included the rider:

Nowadays a more tolerant attitude is taken towards critics of the judiciary. Nevertheless, lawyers and non-lawyers remain reluctant to emulate the critical approach of Sergeant Roo.

In times past – as I have explained in the history above – lawyers, “If they have suggestions for reform of the judiciary, or comments to make on judicial performance, they whisper them to each other over lunch in the Middle Temple or in professional journals remote from the public gaze. Such heresies are expressed cautiously, in deferential language.” – see Judges, pp 105, 106 where it also said:

In one case, after Lord Mansfield (Chief Justice of the King’s Bench, 1756-88) had given judgment for a Bench of four judges, he asked Sergeant Hill, who appeared for the unsuccessful party, to “tell us your real opinion and whether you don’t think we are right.” Hill replied that “he always thought it his duty to do what the Court desired and … he … did not think that there were four men in the world who could have given such an ill-sounded judgment …
…

More often, it is only in fiction that the conventions of politeness to judges are defied. The judges before whom John Mortimer’s Rumpole appears are perverse and malign. They are ignorant of the ways of the world. They are differential or rude to witnesses depending on the social status of those who have the misfortune to give evidence in their courts. … Only a barrister of Rumpole’s experience (and lack of ambition) can afford to reply in kind to the discourtesy emanating from that fictional Bench.

Ever heard of the expression “truth is stranger than fiction”? In this country we have experienced for real perverse and malign judges, not the fictional ones experienced by John Mortimer’s Rumpole.

In 1680, Nathaniel Redding accused two judges of “oppression” and was condemned in Court to pay the King 500 pounds and lie in prison till he paid it, see Nathaniel Redding’s Case, Sir Thomas Raymond’s Reports 376 n. (1680). Later that term the court remitted the fine and the sentence of imprisonment.

In the Matter of Thomas James Wallace (1866) LR 1 PC 283, a Nova Scotia lawyer wrote a letter to the Chief Justice complaining that “I can’t help thinking that I am not fairly dealt with by the Court or Judges.” He added that he “could also recall cases where the decision was, I believe, largely influenced, if not wholly based, upon information received privately from the wife of one of the parties by the judge. Is this justice?” Lord Westbury, in the Judicial Committee of the Privy Council, remarked that this “undoubtedly was a letter of a most reprehensible kind … a contempt of court, which it was hardly possible for the Court to omit taking cognizance of.”

I have found a case after 1936, it is R v Logan (1974) Crim LR 609. A man on being convicted shouted from the dock, that it was “a carve up”, was held to be a contempt of court.
But why am I telling this?
Was Matthias Chang charged with contempt for discourtesy to the Bench?
Martyr Without A CauseI should think so. It was crass impertinence of him to behave in such an unruly manner towards a judge. As a lawyer he should know better than to be discourteous to the court.

If I remember correctly he was charged with disrupting the court proceedings while giving evidence as a witness by stomping out of the witness box in a huff and left the court because the judge refused to allow him to deliver a submission or speech from the witness stand.

The only modern case (post 1936) of disruption of court proceedings that I am aware of is the case of Morris v Crown Office [1970] 2 QB 114 where the English Court of Appeal allowed an appeal against their sentence of imprisonment imposed on Welsh students who had disrupted court proceedings. Davies LJ said, at page 127:

On occasions one has the misfortune to encounter someone who makes a disturbance in court. Usually when that happens it is a case of a disappointed litigant who, from a sense of rage or disappointment at the result of his case, loses control of himself and gives vent to his feelings by an outburst either by word of mouth or physically.

In Balogh v St Albans Crown Court [1975] QB 73, a young man was sentenced by Mr. Justice Melford Stevenson to six months’ imprisonment for contempt of court by planning to release laughing gas into the court to disrupt proceedings. He was released by the Court of Appeal because his conduct was not a contempt as he had not disrupted court proceedings. His plan was foiled by the police.

So now we know that the atrocious behaviour of Matthias Chang in court is a contempt in the face of the court. As he did not appeal against the sentence, could it be assumed that he was happy with the sentence of one month’s imprisonment?

Had he appealed, who knows, he could have succeeded following Morris v Crown Office.

I suppose he wants to be a martyr without a cause.

courtesy of Loyarburok.com. Article written by N H Chan, who was a former Court of Appeal judge before retiring.

Olaichuadi By Maruthuvar Srinivasan

Confident People Do Not Get Confuced...

JAN 4 — I found by chance this article the other day: “Prophet Muhammad’s Promise to Christians”.

The document is not a modern human rights treaty but even though it was penned in 628 AD it clearly protects the right to property, freedom of religion, freedom of work, and security of the person, says Muqtedar Khan.

Muslims and Christians together constitute over 50 per cent of the world and if they lived in peace, we will be half way to world peace. One small step that we can take towards fostering Muslim-Christian harmony is to tell and retell positive stories and abstain from mutual demonisation.

In this article I propose to remind both Muslims and Christians about a promise that Prophet Muhammed (pbuh) made to Christians. The knowledge of this promise can have enormous impact on Muslim conduct towards Christians. Muslims generally respect the precedent of their Prophet and try to practise it in their lives.

In 628 AD, a delegation from St Catherine’s Monastery came to Prophet Muhammed and requested his protection. He responded by granting them a charter of rights, which I reproduce below in its entirety. St Catherine’s Monastery is located at the foot of Mt Sinai and is the world’s oldest monastery. It possesses a huge collection of Christian manuscripts, second only to the Vatican, and is a world heritage site. It also boasts the oldest collection of Christian icons. It is a treasure house of Christian history that has remained safe for 1,400 years under Muslim protection.

The Promise to St Catherine:

“This is a message from Muhammad ibn Abdullah, as a covenant to those who adopt Christianity, near and far, we are with them.

“Verily I, the servants, the helpers, and my followers defend them, because Christians are my citizens; and by God! I hold out against anything that displeases them.

“No compulsion is to be on them. Neither are their judges to be removed from their jobs nor their monks from their monasteries. No one is to destroy a house of their religion, to damage it, or to carry anything from it to the Muslims' houses.

“Should anyone take any of these, he would spoil God's covenant and disobey His Prophet. Verily, they are my allies and have my secure charter against all that they hate.

“No one is to force them to travel or to oblige them to fight. The Muslims are to fight for them. If a female Christian is married to a Muslim, it is not to take place without her approval. She is not to be prevented from visiting her church to pray. Their churches are to be respected. They are neither to be prevented from repairing them nor the sacredness of their covenants.

“No one of the nation (Muslims) is to disobey the covenant till the Last Day (end of the world).”

The first and the final sentence of the charter are critical. They make the promise eternal and universal. Muhammed asserts that Muslims are with Christians near and far, straight away rejecting any future attempts to limit the promise to St Catherine alone. By ordering Muslims to obey it until the Day of Judgment the charter again undermines any future attempts to revoke the privileges. These rights are inalienable. Muhammed declared Christians, all of them, as his allies and he equated ill treatment of Christians with violating God’s covenant.

A remarkable aspect of the charter is that it imposes no conditions on Christians for enjoying its privileges. It is enough that they are Christians. They are not required to alter their beliefs, they do not have to make any payments and they do not have any obligations. This is a charter of rights without any duties!

The document is not a modern human rights treaty but even thought it was penned in 628 AD it clearly protects the right to property, freedom of religion, freedom of work, and security of the person.

I know most readers must be thinking so what? Well the answer is simple. Those who seek to foster discord among Muslims and Christians focus on issues that divide and emphasise areas of conflict. But when resources such as Muhammad’s promise to Christians are invoked and highlighted it builds bridges. It inspires Muslims to rise above communal intolerance and engenders goodwill in Christians who might be nursing fear of Islam or Muslims.

When I look at Islamic sources, I find in them unprecedented examples of religious tolerance and inclusiveness. They make me want to become a better person. I think the capacity to seek good and do good inheres in all of us. When we subdue this predisposition towards the good, we deny our fundamental humanity. In this holiday season, I hope all of us can find time to look for something positive and worthy of appreciation in the values, cultures and histories of other peoples.

Dr Muqtedar Khan is director of Islamic Studies at the University of Delaware and a fellow of the Institute for Social Policy and Understanding.

Now, when that delegation from St Catherine's monastery came to meet with Prophet Mohamad (pbuh), I suppose it's fair to assume that they spoke Arabic to one another. And when they were conversing, surely the word “God” must have come up. As in "May God Be With You" and such like. What word did the Prophet (pbuh) use for “God” I wonder? And what did the St Catherinians use in return? For monotheists like them, was there a “your God” and “my God” type of situation, or did they understand that they were both talking about the same One?

While some idiots are mourning over the “loss” of the word “Allah” and therefore basically telling the world that they are people easily confused by nomenclature, and others are predicting riots over what is basically a “copyright” issue, let me define what I think a confident Muslim should be:

1. A confident Muslim is unfazed by the issue of God's name. God speaks to all of humankind in the Quran and never said that only Muslims could call him by the name Allah.

2. A confident Muslim has 99 names to choose from to describe that One God. My favourites are Ar-Rahman (The All-Compassionate) and Ar-Rahim (The All-Merciful).

3. A confident Muslim never gets confused over which is his/her religion and which is other people's. For instance, a confident Muslim knows exactly what the first chapter of the Quran is. And it's not the Lord's Prayer.

4. A confident Muslim will not walk into a church, hear a liturgy in Malay or Arabic where they use the word “Allah” and then think that he or she is in a mosque. A confident Muslim knows the difference.

5. A confident Muslim is generous, inclusive and doesn't think that his or her brethren is made exclusive through the use of a single language. The confident Muslim is well aware that in the Middle East, all services of ANY religion are in Arabic because that's what they all speak.

6. A confident Muslim knows the basis of his/her faith are the five pillars of Islam and will not be shaken just because other people call God by the same name.

7. A Muslim believes in only One God. Therefore it makes sense that other people should call God by the same name because there is no other God.

ART THOU NOT aware that it is God whose limitless glory all [creatures] that are in the heavens and on earth extol, even the birds as they spread out their wings? Each [of them] knows indeed how to pray unto Him and to glorify Him; and God has full knowledge of all that they do: (Surah Nour, Verse 41) (Asad).

So I would ask those people demonstrating against the court decision, have you no pride? Are you saying you're easily confused?

And before anyone says I have no qualifications to say these things, read what Dr Asri Zainal Abidin (who does have qualifications no matter what JAIS says) has written about this very subject here.

And here's something interesting. In 2007, the Majlis Agama Negeri Perlis, which is a large majlis filled with people very learned in Islamic religious knowledge, discussed the question of the use of “Allah” by non-Muslims. Their unanimous decision? They issued a fatwa to say that there is absolutely nothing wrong with non-Muslims using the word at all. (This was told to me by Asri but I cannot find the fatwa anywhere online because all the religious departments' websites are so useless.)

Are we now going to excommunicate the whole of Perlis?

— rantingsbymm.blogspot.com