Collective Responsibility

I read an interesting quote in an article from MMO this morning and it got me thinking. According to the article:

What Dr Mahathir does not tell the people is that if a vote of no confidence is successfully passed it is not just the Prime Minister who falls. It is the government that falls.

What our Communications and Multimedia Minister forgot to tell the people is that, this principle of collective responsibility is enshrined in our Federal Constitution under Article 43(4), which says that:

If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.

See, this is a perfectly legal and acceptable thing to do in our country. The mechanism has already been put in place by our founding fathers who drafted our Constitution. This particular article addresses the scenario that might happen if our Prime Minister ever fails in a vote of no confidence.

In the event that our PM loses a no confidence vote either by an explicit vote called in the house or by failing to secure the necessary votes to pass the coming budget – a money bill – he will be forced to ask the YDPA to dissolve the parliament. If our YDPA decides to veto the dissolution of parliament, then the PM has no choice but to resign along with his Cabinet.

By simply leaving out this tiny little fact, one might think that our Minister is trying to sow some fear, uncertainty and doubt by implying that our former PM, Tun Dr Mahathir, is not just trying to bring down the current PM but also trying to bring down the current government.

Simply put, there is nothing wrong with bringing down the entire Cabinet with the PM. This is the principle of collective responsibility. If they stand by him, they should sink by him too. The reasoning for this is because the PM does not act alone. He is not a sovereign.

So, if he sucks as a PM, the rest of the Cabinet sucks as well. This is because they could have advised him on many occassions on what to do. In fact, they are his equals and they should have been able to tell him what to do, without having to ask nicely.

Therefore, if he has committed such sins as to warrant such a loss of confidence from within members of his own party, the rest of the Cabinet needs to take some responsibility for the situation getting so out of hand in the first place.

The thing is, it’s not easy for a sitting PM to lose a no confidence vote simply because so much power is concentrated in him. In fact, the entire Cabinet holds their posts at the pleasure of the YDPA who takes the PM’s advice in hiring and firing the Cabinet members, according to Article 43(5).

Hence, it is quite difficult for a sitting PM to lose a no confidence vote, unless his acts are of such a nature that he is no longer tenable as the PM.

This is why we have a no confidence vote. If a PM has lost the confidence of the people, our government will grind to a halt and the economy will suffer. Imagine if his instructions are not carried out simply because the officers don’t take the PM seriously because he is a laughing stock and the butt of every joke.

This is the situation that our country seems to be slowly turning into.

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Paedophilia in Malaysia

Hot on the heels of marital rape comes another issue – paedophilia – that is igniting all sorts of debate in the media. The news that a Malaysian student at Imperial College being charged and imprisoned for the possession of over 30,000 items of child pornography, sent shockwaves through our community.

What is shocking isn’t the fact that a Malaysian student was found guilty of such proclivities, but rather the reaction of the government, institutions and the people to this crime.

One minister actually suggested that the government appeal for a lightening of the sentence:

We can appeal (to reduce the length of the sentence), the problem is we are subjected to the prevailing laws of the country.

This encouraged the student’s sponsor, MARA, to suggest that the student be given a second chance to complete his studies in a MARA institution:

He said the opportunity was not exclusive to Nur Fitri Azmeer as the same opportunity could be given to any other MARA-sponsored student if they were faced with a similar fate.

One MARA council member likened paedophilia to truancy:

Students who play truant are given a second chance, so why is it different with Nur Fitri.

So, now we know where all the paedophiles of the country are going to go to school, and play truant while at it.

What is particularly sickening is that people in the country seem to lack the necessary tools to understand that the problem with paedophilia isn’t one of sexual preference but of a sexual crime. One can be both a homosexual and a paedophile. It isn’t in the same category. A paedophile isn’t like a homosexual. A paedophile is like a rapist since the issue is that of consent.

So, if people are willing to condone paedophilia, these same people are condoning rape.

Now, there is the problem because certain groups in our society do not consider sex with a minor as a crime, just like how some do not consider marital rape as a crime. This is a difficult problem to solve because it is one of values and values are different from individual to individual.

I won’t blame the normal rakyat for this confusion because our government has failed us on both regards. I have already highlighted how marital rape isn’t considered a crime in Malaysia as it is an exemption under S.375 of the Penal Code. However, as far as paedophilia is considered, there are no laws to govern it in Malaysia as highlighted elsewhere.

What is worse is the fact that sex with a minor is even legalised and halal under specific circumstances. There have been many cases of such things and many precedents where marriage with a girl under 16 is allowed with the permission of a Syariah Court under S.8 of the Islamic Family Law (Federal Territories) Act:

No marriage may be solemnized under this Act where either the man is under the age of eighteen or the woman is under the age of sixteen except where the Syariah Judge has granted his permission in writing in certain circumstances.

Keep in mind that this is very different from the concept of a minor entering into a marriage contract, which is also allowed under civil law. This is a child entering into a actual marriage in both fact and law.

Now, if you read this section with S.375 of the Penal Code, we come to the inexplicable conclusion that having sex with a minor is allowed in Malaysia as long as one is legally married under Syariah Law. While having sex with a minor is statutory rape under S.375(f) of the Penal Code, marital rape is an exception under the same law.

This is a worrying trend as has been pointed out recently that child marriages are on the rise in Malaysia:

In 2012, there were around 1,165 applications for marriage in which one party, usually the bride, is younger than the legal marrying age. The Syariah Courts approved 1,022 of them. This is an increase from the 2011 record, when some 900 marriages involving at least one Muslim minor were approved.

Therefore, it is hard to criminalise paedophilia, as generally understood, in Malaysia when there is legal recourse to engage in paedophilia. I am not going to go into the effects that child marriages and/or paedophilia have on our society as I’m sure that there are others far more qualified to discuss it. I’m just pointing out legal facts as it stands in Malaysia.

So, it is no wonder that the authorities are nonchalant about Nur Fitri’s crimes as they probably do not consider it as much of a crime at all, like truancy. If he had engaged in such proclivities in Malaysia, he would not be considered a criminal at all. If he took a child bride, then it would not only be legal, it would be halal too.

Such is the state of our law.

Marital Rape in Malaysia

This has been a hot topic of discussion for the last couple of weeks, ever since this AWAM campaign video on rape became a sensation online. If you have not seen it yet, I would recommend that you watch it now.

The video depicts several scenarios of rape – underaged, drunk, marital, conventional. However, the only issue that became a contention in the Malaysian public sphere is the issue of marital rape. Many have weighed in on the issue on both sides with some defending marital rape as it is apparently condoned under Islam.

I was honestly taken aback when I read about the camel scenario, an opinion given by the Perak Mufti.

Even the Prophet says even when they’re riding on the back of the camel, when the husband asks her, she must give.

I was trying to wrap my mind around the fact that they were able to do it on camel back. I wonder what position that took and whether that camel was moving or stationary.

But anyway, I’m not trying to rehash the discussion on marital rape from the Islamic standpoint. Seeing that this is a quasi-legal blog, I intend to point out that under S.375 of the Penal Code, which covers rape, all the above scenarios are addressed. However, marital rape is addressed as an exception under S.375:

Exception—Sexual intercourse by a man with his own wife by a marriage which is valid under any written law for the time being in force, or is recognized in Malaysia as valid, is not rape.

Now, say what you want about it but marital rape is not recognised under Malaysian Law. Therefore, husbands are legally allowed to rape their wives as much as they want and there is no legal recourse for the wife. However, if the husband does cause any other form of bodily harm towards her in the process, she may still find redress under the Law, just not as rape.

I think that it’s a good idea to start discussing this issue because it is high time that we reformed our Law to reflect the realities of the day and that wives are no longer chattel owned by their husbands, as in the past. However, what I think a lot of the activists types are missing is that this is not a gender issue.

If the activists choose to champion it as a gender issue, they will lose. As one of my law lecturers once mentioned, nobody cares about womens’ issues in this country. I wouldn’t support their cause if they were to treat it as a gender issue simply because it would be hypocritical to do so.

Rape is not a gender issue. Rape is a human rights violation.

Since it is a human rights issue, then let’s not stop with marital rape. If you look at the wording of S.375 of the Penal Code, you will find that it also does not cover male rape either. Apparently, in Malaysia, only men are capable of committing rape and no woman is capable of doing so.

A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions:

So, it would seem that our laws on rape are severely behind the times and we need to amend it to reflect the realities of the day. Rape is a crime like any other crime. It is capable of being committed by members of any gender on members of any gender. It is also capable of being committed within the confines of a home as easily as it is outside.

Therefore, it is high time that we amend our laws to recognise all kinds of rape, not just the narrow definition of  marital rape in the context of a husband raping his wife.