Standards of gender discrimination,some gems of judicial wisdom

Mr.Chief Justice: As a matter of interest, what did you score for jurisprudence in your LLB and bar examinations? Did you attend classes that taught statutory interpretation? Would love to see your exam scores. That would explain your predicament in solving relatively simple cases with a literal reading of the appropriate statute which is bereft of ambiguity.It’s confirmed that the two judicial experts who found statutory rape of two minors a non-issue need help in understanding what rape is – or else they will go on delivering reproachful judgments in favour of rapists.

On Aug 28, Sessions Court judge Nisa Abdul Aziz released a 22-year-old electrician Chuah Guan Jiu on “good behaviour” after he was convicted of raping his then 12-year-old girlfriend twice last year.

Chuah was instead bound over for three years on a RM25,000 good behaviour bond. He had committed the crime at his flat in Jalan Ru 1, Air Itam on July 18 and 19.

The offence under Section 376(1) of the Penal Code carries a jail sentence of up to 20 years’ jail and whipping.

But Nisa decided that since the sexual act was consensual between Chuah and the victim and that he had not tricked her into the act, no “rape” had taken place.

Nisa made the perpetrator’s future her priority, not the fact that he had tricked his minor partner into having sex with him; the facts of the case stated that Chuah had persuaded the victim to skip school and follow him to his home, which then led to the offence being committed.

So the judge thought best that Chuah be bound over for three years on a RM25,000 good behaviour bond.

A shame that the judge failed to understand the psyche of a rapist who not once but twice raped his schoolgoing girlfriend. Worse still, Nisa made the probation report her “bible” in stating that Chuah did not have a prior criminal record and was a Form Two school drop-out.

What is even more shocking is that Nisa, like her predecessor, Court of Appeal president Raus Shariff, displayed her ignorance on what constitutes statutory rape and that Malaysia is a signatory to the United Nations Convention on the Rights of the Child (CRC) 2009.

According to the Committee on the Rights of the Child – Implementation Handbook for the CRC, a girl under the age of 18 is a minor and is not in a position to give informed consent.

The second-highest ranking judge in the country, Raus had opted to show concern for perpetrator Noor Afizal Azizan’s “bright future” in setting aside the five-year jail term imposed on the national bowler by the Malacca High Court, and instead binding him over for good behaviour.

Nor Afizal, then 19, was charged with raping his 13-year-old girlfriend at a hotel in 2010.

A tragedy that Nisa and Raus have not only failed to uphold justice but they have also downplayed the crime of statutory rape, claiming, on the contrary, that consensual sex between a minor and an adult is “permissible” under the law.

Nightmare for the parents

By siding with the rapists, both Nisa and Raus have decided that the welfare of the rape survivors is none of their business and that irrespective of their ages, rape survivors are “party” to rape.

When Raus’s judgment created a public uproar, all he did in trying to clarify his decision was to say that despite being let off on a personal bond of RM25,000 for good behaviour, public interest had been served as Nor Afizal had been convicted and the offence recorded.

Raus’ clarification comes as a nightmare to the parents of the young girls. What do we make of such senarios – a rapist is allowed to roam about freely simply because the judge was impressed with his “credentials” or because the rapist is too young to do jail time?

Are Raus and Nisa willing to take all the blame if both Nor Afizal and Chuah were to commit more rapes?

Also, since when has the perpetrator’s age and “bright future” become a concern of the courts in crimes as traumatising as rape?

What Nisa and Raus have done is a travesty of justice, a blunder so serious that it has left the rakyat wondering whether justice is still alive or long dead in this country of 28 million people.

In these two cases, the injustice done to the rape survivors begs that “remedial” actions be taken to ensure judges stop being biased when dealing with rape cases; it is imperative too that judges stop finding faults with the rape survivors and no longer depict them as “guilty”.

Are Raus and Nisa aware that in statutory rape which is also known as sexual assault or rape of a child or corruption of a minor or carnal knowledge of minor, overt force or threat need not be present as the law presumes coercion as the minor is legally incapable of saying “aye” to the act?

If judges keep reflecting their ignorance on cases that have devastating impact on the victims, where does that leave the ordinary rakyat out to seek justice from the courts?

Should justice continue to evade those who knock at its doorstep, the day will not be far when the nation mourns tragedies seen only in Hollywood or Bollywood movies.

Jeswan Kaur is a freelance writer and a FMT columnist.

Here are some gems of judicial wisdom:
Even by the infamous Indian standards of gender discrimination, this is truly stunning. When a high court judge promotes the suffering of women as a natural course of affairs, Things are as bad as they can get.
Chief Justice Arifin Zakaria has refused to comment over the suggestion by the Attorney-General’s Chambers (AGC) for the Court of Appeal review its decision of setting aside the five-year jail term on the national tenpin bowler Noor Afizal Azizan for raping an underaged girl.If your grandchildren is raped, I think you would say something...no? You would keep quiet too? How honorable. Respect...respect..... No balls say no balls..if you as Chief Justice got no balls to speak of justice, maybe you should ask your gardener to speak on your behalf. Rubbish that it is sub judice! The CJ must answer who gave the Judge and the Appeal court the authority to reinterpret the meaning of Statutory Rape? You mean Parliament was not serious about the meaning of Statutory Rape? Do not rewrite the law, that is beyond the Judges' jurisdiction!Sub judice, Mr. Chief Justice? When did the judiciary look askance to the Attorney General? If I were you, Sir, I would delightfully take the portion of hemlock, and thank GOD for the rare opportunity. You are a disgrace to humanity, the judiciary, and to the people of Malaysia. Care to take me on a public debate on this? Judge NC Naidu USAMost parents are holding their breath until their kids are out of middle school, safe from the violence of bullying. But no one could have imagined that this epidemic would spread to grandmothers.

A shocking video, shot in June and just over ten minutes long, uncovers the unconscionable: a school bus monitor from Greece, NY, 68-year-old Karen Klein, sitting alone in her seat as the voices of an anonymous pack of seventh-grade boys unleash an ugly string of gratuitous taunts and name-calling.

They mock her about her weight. They make fun of her purse. They tease her about her son's suicide. And their language is reprehensible -- it's very hard to watch without becoming angry.

"You're so fat." "You fat-ass." "You friggin' slut." "You ugly-ass troll."

At one point, the sad and bewildered woman, now crying, attempts to say something any adult might say when outnumbered by a gang whose weapon is abject cruelty.

"Unless you have something nice to say, don't say anything at all," Karen says softly.

"Shut the f**k up," one child responds.

Watching this horrible clip, you can't help but ask yourself: Don't these children have grandmas? Parents? Didn't they grow up in a family? Even those who regularly turn a blind eye to bullying cannot look at this video and say, "But that's how it's always been at school. Kids will be kids." And all that.

If there's one thing that the Karen Klein incident proves to us, it's that what used to be looked upon as "schoolyard pranks" has grown into a national emergency -- and the thorny vines of this crisis are now reaching deeper into our families. That's the dire consequence when we allow a problem to grow out of control.

Last month, I attended a bullying prevention summit in Washington, D.C., and among the speakers was Robert Rodriguez, the White House Special Assistant for Education. In his remarks, Robert reflected on his own personal experience as a parent, commenting that, as our children grow, we try to provide them the freedom to learn to make decisions on their own.

But bullying, he said, is not something they could -- or should -- handle alone.

"Above all things, we want our children to be safe," Robert commented. "That responsibility to provide a safe environment for our children starts at birth -- it's instilled in all of us as parents. And when a child is bullied, we have failed that duty."

Exactly. This is why much of our effort in our anti-bullying campaign this year will be to raise awareness among parents and guardians and let them know that it is their responsibility to help bring an end to bullying.

I can't help but think that the Karen Klein bus incident might never have happened had parents stayed ahead of the curve -- looking for warning signs, monitoring their kids' behavior, training them about the right steps to take when they witness bullying as it is happening (instead of just filming it on a cell phone).

As kids head back to classrooms this month -- many of them on school buses -- it's time for parents and guardians to step in and step up to their responsibility, and help avert another year of bullying before it has a chance to begin.

I contacted Rick Shaw, the founder of Awareity -- which provides real-life solutions to real-world problems, including bullying -- and asked him to provide a few pointers for parents about how they can learn to identify if bullying is happening in their child's life, and how to stop it in its tracks. Here are seven tips from Rick:

• Communicate as often and as much as possible with your children. Pay close attention to their behavior (or their changing behavior) and how they respond and react when communicating with their friends in person and online.
• If your children seem agitated, depressed or bothered when texting or communicating online, ask them if they have observed cyberbullying or been a target of cyberbullying. Encourage them to talk about why they seem agitated or depressed.
• If your children have become more secluded, withdrawn, are not sleeping enough, have a different group of friends, or are suddenly struggling with grades, these are warning signs that you need ask them about.
• Ask your children if they know what to do in different bullying settings (on the bus, at school, at sporting events, away from school, online) and if they know how to report bullying incidents that they have witnessed.
• Schools cannot prevent what they don't know about. So encourage your children to report bullying and other student safety issues whenever they see them, so that school personnel can proactively intervene and prevent incidents from escalating.
• Parents should contact the school to find out how they can report suspect behavior and suspicious activities. Don't be afraid to follow-up with the school to see what actions were taken, and to ensure that the situation is not escalating. Talk to your children to see if they trust that their school is responding to the situation (and not making it worse).
• Parents should make sure they set an example for their children to follow: If they treat every person with respect and hold themselves and their children accountable for their actions, we can create a safer environment for everyone.

Here are some gems of judicial wisdom:

Last week, during the hearing of a case between a separated couple, K Bhaktavatsala, a Karnataka high court judge, told the woman, who had accused her husband of regularly beating her: “Women suffer in  all  marriages.  You  are married with two children, and know what it means to suffer as a woman. Yesterday, there was a techie couple who, reconciled for the sake of their child. Your husband is doing good business, he will take care of you. Why are you still talking about his beatings?”

That’s not all.

Earlier, on August 9, the judge during the hearing of a matrimonial dispute told a young woman lawyer, “Family matters should be argued only by married people, not spinsters.  You  should  only  watch.  Bachelors  and  spinsters watching family court proceedings will start thinking if there is any need to marry at all. Marriage is not like a public transport system. You better get married and you will get very good experience to argue such cases.”

Justice Bhaktavatsala, I’m sure, is no stranger to the Indian Constitution, which guarantees equal rights to women and men. But then, on second thoughts, what’s so sanctimonious about the Constitution any more? The custodians of the present social and political order treat the ‘holy book’ as a mere shield (against the likes of Anna Hazare), handy, in warding off attacks, even when they are legitimate, on themselves. If our MPs and MLAs and the executive can disregard the Constitution as and when they please, what prevents the legal luminaries from following in their footsteps?

The frightening thing is that Justice Bhaktavatsala has spoken aloud the very misogynist thoughts that motivate hundreds and thousands of attacks on women, with such deep conviction. Not to mention his blithe indifference to the office that he occupies in the judicial system, even as he mocks the Constitution.

This judge has no qualms telling an unmarried woman lawyer to “better get married”. The gist of his sermons: All women and men should get married, if only to secure the legitimate right to speak about that social institution.  A single woman, in Justice Bhaktavatsala’s perception, is less competent to argue in family court proceedings. According to the judge, a ‘spinster’, having no experience of married life,  has  no  locus  standi  to  speak  on  the subject. . If sharing similar experience is the ultimate qualifying yardstick to speak in matrimonial disputes, then by that same standard, Justice Bhaktavatsala (not having the experience of  a  battered  wife),  should  remove himself from any case of domestic abuse.

But no, Justice Bhaktavatsala isn’t constrained by his ‘inexperience’ in the matter. He asks the wife to adjust with an abusive husband, because he is “doing good business”, and “will take  care”  of  her.  In  fact,  the  judge further expands his argument and asks the woman to accept beatings by her husband as a routine (necessary too?) aspect of marriage, the institution he advises every woman to be part of.

Is this the voice of the law or ‘Save the Marriage Foundation’?

A special court in Ahmedabad has churned things up in a way inconceivable till now. Following its recent convictions, the court has delivered yet another stinging verdict. Under it, Maya Kodnani, BJP MLA, will spend the next 28 years of her life behind bars; and Babu Bajrangi will remain incarcerated for the rest of his life. The charges on which they have been tried and found guilty couldn't be any more severe than they already are.

After more than a decade of dramatic twists and turns in judicial hearings, Kodnani and Bajrangi have been found guilty of being involved in the planned mass killings in Naroda Patiya. This is the site where nearly a hundred Muslim men, women and children were brutally murdered by armed mobs during the 2002 riots.

The recent court verdict is an affirmation of what already many believed and knew to be true. Barring the blind and the faithful among Narendra Modi's supporters, few doubted the guilt of Kodnani and Bajrangi. Earlier, sting operations had made stunning revelations in the media, reinforcing dark suspicions and confirming the participation of specific persons in the Naroda Patiya massacre. But like many other bigwigs in Gujarat's top political and administrative posts, Kodnani and Bajrangi had managed to get away. Till now.

Could this be an ominous sign for BJP supremo Narendra Modi? Could the day of final judgment, the epiphany that should have happened long time ago, now unfold before the public? All this while Modi has swung from practicing aggressive Hindutva and nationalistic politics to undertaking sadhbhavana fasts; from focusing exclusively on a Hindu electorate to clumsily reaching out to Muslims. With his party's rank and file rallying solidly behind him, Modi has grown bolder and reached out for the ultimate pinnacle of glory in the life of a politician – the prime minister's chair. As Ashis Nandy observed on a TV programme once about Modi: "if you wear a mask long enough, it might become your face."

But he donned that mask too late and without any grace. No sincere apology has come from him in all these years, accounting for his "failure" to prevent the orgy of killings that took place on his watch. Every adverse court verdict was met with brazen alibis from his colleagues, damning the human rights activists and civil society groups.

Even now, after the landmark conviction and the jailing of Kodnani, Modi's lieutenants continue to be unapologetic. Party spokespersons have made the convictions out to be a result of Modi's fairness, his even handed dealing with his adversaries! The truth is that but for the Supreme Court and the much disparaged 'jholawala' activists, and human rights crusaders, the truth would have remained buried under heaps of lies and subterfuge. The Gujarat police had already disregarded the testimonies of Naroda Patiya's witnesses, attesting to Kodnani leading the mobs. Had the Supreme Court not directed the setting up of a Special Investigation Team (SIT), matters wouldn't have moved an inch.

Even worse, Modi appointed Kodnani a minister in his cabinet in 2007, in sheer defiance of the telling evidence against her. Kodnani even disappeared underground as minister when the SIT had moved against her, to avoid arrest. How much murkier can it really get? Yet the urban middle classes seem willing to wish away any possible complicity in Gujarat's mass murders. In a recent survey conducted across 28 cities Narendra Modi has emerged as the favourite of the electorate, ahead of Rahul Gandhi and Bihar chief minister Nitish Kumar. He has secured 42% of votes as against Rahul Gandhi's 29 % and Nitish Kumar's 19%.

But there's a larger issue here. The tragedy of the Indian political class is that the domain of communal, caste and gender violence has been inhabited in equal measure by all powerful parties, particularly the ruling Congress and the Opposition BJP. When it comes to pointing fingers at each other for casting the first stone, lighting the first match, or firing the first shot, the Congress and the BJP take cover in mutual mud-slinging and acrimony. There's little else they can do because the record on both sides is sordid and guilt-ridden.

The onus therefore is never one of proving innocence against the core charge of having abetted and incited or sponsored violence. It is always about the degree and scale of violence done by one party in comparison to its adversary. The questions raised around that emotive subject are endless. Did more people die in the 1984 Delhi riots? Or was the body count more in the 2002 Gujarat riots? Were the guilty of the Hashimpura and Maliana and Nellie massacres ever brought to book? And what about the innumerable sites of violence against dalits and tribals?

The Congress still tries to shield Rajiv Gandhi who was at the helm of affairs when 3000 innocent Sikhs died in the capital. Some party leaders have gone to the extent to transferring the blame squarely on one of their own former prime ministers – Narasimha Rao – who was the home minister in 1984. The war of words between the Congress and the BJP, like on the issue of corruption, on communal riots too, is nothing but a sham.