Google hit with $AUD200k defamation damages

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Ad giant’s own witness confessed removing dodgy search results is easy

An Australian man defamed by links on Google that associated his name with images of and articles about a criminal has been awarded $AUD200,000 damages.

Melbourne man Michael Trkulja argued that searches on his name, which brought up references to criminal Tony Mokbel, constituted defamation.

Trkulja asked for those references to be altered. Part of Google’s defence suggested he had not properly completed forms that would have seen the ad giant alter its search results, but the end result was that Trkulja’s name continued to appear alongside references to a nasty gangster called Tony Mokbel. A jury agreed that those results equated to defamation, and Supreme Court Justice David Beach today decided it was $AUD200,000 worth of defamation.

The judgment paints a fascinating picture of Google’s response to the complaint, noting that a Google US employee, a ‘Mr Madden-Woods’, appeared on the stand but that the ad giant did not call anyone to the witness stand involved in handling the original complaint from Mr. Trkulja.

That became important because one piece of evidence offered by Mr. Trkulja was an email from help@google.com stating:

“At this time, Google has decided not to take action based on our policies concerning content removal. Please contact the webmaster of the page in question to have your client’s name removed from the page.”

But the existence of the mail from help@google.com, Justice Beach writes, means the jury could easily “… infer that … Google Inc was well aware of what was being requested of it” and that a more nuanced response was almost certainly a sensible option.

Making matters worse, Justice Beach writes that Madden-Woods “ … conceded the obvious (perhaps somewhat begrudgingly) that it would not take very much effort to work out, from the page of photographs supplied to Google Inc, the identity of the website that linked the plaintiff’s name to Mr Mokbel and Mr Tanner. All one had to do was click on one of the images (the text beneath each image showing that the one web page was involved). At that point it would have been open to Google Inc to block the URL of that page from Google Inc’s searches, in compliance with the plaintiff’s former solicitors’ request.”

The amount of damages awarded seems to have been calculated in two ways.

Trkulja had already succesfully sued Yahoo! over the same matter and been awarded $AUD225,000, but that search engine had published nasty links for longer and that those links stated he was “so involved with crime in Melbourne that his rivals had hired a hit man to murder him”. Google’s results stated only that Trkulja “was such a significant figure in the Melbourne criminal underworld that events involving him were recorded on a website that chronicled crime in Melbourne”.

Justice Beach declares that a lesser imputation, but then tried to weigh the number of times each statement would have been read given the respective user bases of the two search engines.
His argument makes for interesting reading:

“While there was debate before me as to the relative popularity of Google and Yahoo search engines, neither side made any attempt to lead evidence of the precise number of publications brought about by a Yahoo search engine as compared to a Google search engine. That said, as was noted by counsel for the plaintiff, in support of a submission that I should find that there were more Google publications than Yahoo publications, while the word ‘Googling’ has entered the vernacular, there is no corresponding word in respect of Yahoo’s products.”

By Simon Sharwood, APAC Editor
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• Google defamed Australian man with links to gangster (2 November 2012)
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• Australia on path to social media regulation (10 August 2012)
• Bill Gates, Harry Evans and the smearing of a computer legend (7 August 2012)
• Google in dock again over defamatory auto-complete (19 June 2012)
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• Force Google to black out searches in new privacy law – MPs (27 March 2012)
• Google asked to bin autocomplete results for Japanese man’s name (26 March 2012)

China and US, different but similar

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The US and China are said to practise very different systems, but only if the details are excluded.

THE world’s two biggest economies exercised the selection of their next leaders just two days apart.

The international media made the usual observation that here were two systems working in ways that could not be more different. That is valid only up to a point, beyond which it only obscures the realities of the US and Chinese systems.

Externally, US democracy is said to offer citizens a choice of government every four years. If an incumbent fails to deliver as promised, voters can vote him out the next time.

China’s one-party system undertakes no regular elections for the public. Every 10 years, the Communist Party meets at a National Congress to identify the country’s next president and prime minister.

The common implication is that while the US system offers freedom of choice, China’s does not. These contrasting stereotypes become fuzzy in practice, however.

The US system sets two presidential terms of four years each as the limit for any individual. If an incumbent opts for re-election, his party is unlikely to entertain any challenger from the party’s ranks.

Thus the party’s candidate is predetermined, beyond the control of even party members. For the other party, some jostling among prospective candidates precedes the eventual candidate, over which ordinary party members may have no choice.

For both parties, money and party machinery (monetised infrastructure) are prerequisites. Any candidate, whether from one of the two main parties or any other, can have no hope of seriously running for the presidency without the vast financial backing required.

That is why in the US and many other Western democratic systems, the choice voters have is only one out of two parties. Third, fourth, fifth and other parties have no real chance, regardless of the value of their policies or the virtues of their candidates.

The supposedly free mainstream news media is also an accessory to this limitation. They give alternative parties scant print space or air time, on the premise that they have little clout, which ensures that they continue to have little clout.

The result is that when either the Republi­can or the Democratic Party wins the presidency, they differ little in the flesh. With hardly any alternative ideas penetrating this political establishment, Republicans and Democrats tend to become more conservative.

As far-right neo-conservatives entered the fray in the 2000 election, both parties moved further to the right. Critics describe the two main parties as merely two wings of the same party, or as being two right wings of the Republican Party.

The US presidency is also the choice of the system rather than of the people. The eventual winner is “elected” by the electoral vote of the Electoral College, rather than the popular vote of ordinary voters.

There are currently only 538 members of the Electoral College who decide on the next president and vice-president out of a choice of two teams. The candidacy that can secure 270 votes wins the White House.

In China, 2,270 delegates of the Communist Party meet at the National Congress every five years to elect the party’s highest decision-making body, the Central Committee (CC). Some 350 members of the CC then decide on the party’s General Secretary and members of the Politburo, Standing Committee and Central Military Commission.

The CC is said to experience high turnovers at election time. In each of the past half-dozen national congresses, more than 60% of committee members have been replaced.

There has also been no shortage of candidates, particularly for this year’s 18th National Congress. It was the first time that nominees for the 2,270 party delegates had been assessed, with candidates continuing to outnumber the available slots.

At this latest National Congress, both a new CC and a new Central Commission for Discipline Inspection were elected. The Communist Party’s Constitution is also being amended, with the main themes being intra-party democracy and fighting corruption.

The governing party’s Standing Committee has also sought the views of other political parties in China on the draft report for the 18th National Congress. President Hu Jintao, as party General Secretary, pledged to strengthen cooperation with the other parties.

Beijing has thus become a magnet for journalists during the week more than for previous National Congresses. More than 1,000 international journalists gained accreditation, with another 400 from Taiwan, Hong Kong and Macau.

If more of Beijing’s proceedings were in English, they would enjoy wider global coverage. That day may soon come as China’s prospect grows.

In 1997, China granted the Carter Center in the US the role of observing village-level elections around the country. The next level of governance, the provincial level, has also experimented with elections for the general public, with only the national level still to do so.

Since 2002, the Carter Center has also played a significant part in voter education in China, on issues like improved governance and political reform. In both rural and urban areas, the Carter Center works with China’s Ministry of Civil Affairs and with NGOs
.
Meanwhile during the week’s 18th National Congress in Beijing, a multitude of issues surfaced for the government to consider. Among these are challenges from growing income disparities, corruption, inadequate market access for local businesses, environmental degradation and moral decay from public indifference to private suffering.

As elsewhere, the responsibility of government is to ensure fulfilment of public welfare without neglecting private business needs. Whereas in the US critics of the government accuse Washington of adopting socialist policies, critics of Beijing accuse the government of abandoning them.

The world’s two largest economies are often compared to see how different they are, while neglecting how much they are similar and how exactly they actually differ. Economically they have become so interdependent within a single global system as to become mutually complementary.

By implication, they are also not as different politically as is so often presumed. While classical ideologists may persist, the reality is that the political business of government has largely become managing national economies competently in a single globalised world.

Kenichi Ohmae is wrong; countries are in no danger of being replaced by corporations in the present or the foreseeable future, no matter how much some corporate budgets dwarf some national incomes. Rather, countries will remain unitary entities, albeit essentially as political economies increasingly governed by national economic needs and supranational economic parameters.

A symptom of this is how economic ideo­logies have replaced political ideologies between the world’s leading major powers. The Washington Consensus of supposedly antagonistic public and private sectors is under serious challenge by the Beijing Consensus of a harmonious complementary relationship between state and industry.

The latter model in Asia originated in Japan, and was soon adopted by the Newly Industrialising Economies (NIEs) of Taiwan, Hong Kong, South Korea and Singapore. Now China is the main player of this game, with its size of play earning it the “Beijing Consensus” as the name of the game.

But some of it had already been seen before in Europe, particularly Germany. It had also been evident in the US itself, in a different time and under a different name.

All of which serves to confirm the unitary nature of the global economy, with time, circumstance and level of development being the real differentials.

BEHIND THE HEADLINES By BUNN NAGARA

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Malaysia is a Secular state or an Islamic country?

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There are some law issues being argued of late, among them like Secular state and Islamic country, etc. Shad Saleem Faruqi Professor of Law at UiTM clarified that:

Secular state:

De facto law minister Datuk Seri Nazri Aziz crossed swords with DAP’s Lim Kit Siang over the latter’s claim that Malaysia is a secular state.

The law minister correctly pointed out that nowhere in the Constitution is there any mention of the word “secular”.

Further, as Islam is recognised in the Constitution as the religion of the federation, it would be improper to regard the country as a secular state.

In support of this view, one can point out that the word “Islam” is mentioned at least 24 times in the Constitution, the words Mufti, Kadi Besar and Kadi at least once each. In Schedule 9, List II, paragraph 1, state legislatures are permitted to apply Islamic law to Muslims in a variety of civil areas.

The state legislatures are also permitted to create and punish offences by Muslims against the precepts of Islam except in relation to matters within federal jurisdiction.

Syariah courts may be established. Under Article 121(1A), syariah courts are independent of the civil courts.

On the other side, Lim correctly pointed out that Malayan constitutional documents and pronouncements by early leaders indicate that at its birth the federation was meant to be a secular state.

To back this view, one can point to the Supreme Court decision in Che Omar Che Soh’s case that although Islam is the religion of the federation, it is not the basic law of the land.

Article 3 on Islam imposes no limits on the power of parliament to legislate contrary to the syariah. Islamic law is not the general law of the land either at the federal or state levels.

It applies only to Muslims and that too in limited and specified areas. It is noteworthy that non-Muslims are not subject to syariah or to the jurisdiction of the syariah courts.

Islamic country:

Ever since Tun Dr Mahathir Mohamad’s declaration on Sept 29, 2001 that Malaysia is an Islamic country, this debate ignites periodically and no firm conclusion is ever possible because of the problem of semantics – the assignment of different meanings to the words “secular” and “theocratic” by participants in the discourse.

My personal view is that if by a theocratic state is meant that the law of God is the supreme law of the land and that the temporal ruler is subject to the final direction of the theological head, then clearly Malaysia is not a theocratic state due to the presence of a supreme Constitution and the overriding power of secular authorities over the religious establishment.

At the same time if by a secular state is meant that law and religion are separated from each other; that there is no legally prescribed official religion; that religion is not interwoven into the affairs of the state; that no state aid is given to any religious creed; and that religion is left entirely to private establishments, then Malaysia is certainly not a secular state.

Then how should we be described? It is submitted that the Malaysian legal system is neither fully secular nor fully theocratic. It is hybrid. It permits legal pluralism.

It avoids the extremes of American style secularism or Saudi or Taliban type of religious control over all aspects of life. It walks the middle path. It promotes piety but does not insist on ideological purity.

Muslims are governed by divinely ordained laws in some fields but in others their life is regulated by Malay adat and by secular provisions enacted by elected legislatures. Non-Muslims are entirely regulated by secular laws.

In sum, the secular versus theocracy debate is full of semantics and polemics and will take us nowhere.

Reflecting On The Law By Shad Saleem Faruqi

> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM.

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Malaysia a transit point for terrorists or a terrorist recruitment centre?   

Unlocking potential for penal tourism

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Malaysia can attract white-collar criminals seeking to do community service

WHEN he sentenced Rajat Gupta, the former McKinsey & Co boss, on Wednesday to two years in prison for insider trading-related offences, Judge Jed S. Rakoff of the Federal District Court in Manhattan spurned the chance to be the midwife at the birth of penal tourism.

We’ve heard of ecotourism, medical tourism, religious tourism, sports tourism, agritourism, education tourism and even sex tourism. So why not a type of tourism that caters for people convicted of crimes, offering these people a chance to atone for their wrongdoings through community service away from home?

Gupta’s lawyers suggested precisely this in a sentencing memorandum submitted on Oct 17. In requesting that the court impose a sentence of probation with the condition that Gupta perform “a rigorous full-time programme of community service”, the lawyers proposed two options.

The first is that he’s assigned full-time for a few years to Covenant House, which provides emergency shelter and other services for homeless, runaway and at-risk youth.

The idea is that he will be based in New York to work directly with the children at Covenant House’s facility in Manhattan, and to help Covenant House come up with strategic initiatives for expansion and improvement. There’s no tourism element here because New York is one of several places where Gupta maintains a residence.

The second option, in the words of the lawyers, is “less orthodox but innovative”.

No kidding. The plan is for Gupta to go to Rwanda to contribute towards improving the delivery of health care (focusing on HIV/AIDS and malaria) and agricultural development.

The Rwandan government has agreed that if the judge accepted the proposal, Gupta would be under its direction and supervision, along with Care USA, a humanitarian and development organisation. He would live and work with government officials in the African nation’s rural districts.

In the sentencing memorandum, Gupta’s lawyers explained: “We recognise this is an unusual community service proposal, but one that could potentially provide great benefits to large numbers of Rwandans desperately in need of help, and which Mr Gupta is uniquely situated to perform.

“Moreover, it would require Mr Gupta to confront significant hardships and would thus constitute punishment commensurate with the seriousness of the offence, as Gupta would be thousands of miles from his family and friends, and would be living in basic accommodations in rural areas of the country.”

However, Rakoff rejected both proposals, labelling them as “Peace Corps for insider traders”. He instead stuck to the conventional, sending Gupta to jail, slapping him with a US$5mil fine and ordering him to be placed under a year of supervised release after the prison term ends.

But the idea of penal tourism is now out there. There’s rich potential in welcoming white-collar criminals who are made to do community service in faraway places.

Besides the direct impact of their work, these wealthy law-breakers will draw the international spotlight, thus raising the profile of the host countries. The criminals are likely to function as magnets that attract family members, friends and associates to come over. All this attention can translate into cash inflows for penal tourism destinations.

Malaysia should seize this opportunity to claim the first-mover advantage in penal tourism. As outlined by Gupta’s lawyers, the key is to have plenty of community service projects that involve “significant hardships” so that the criminals (or penal tourists, to use the politically correct term) are indeed doing work that can be widely accepted as punishment that fits the crimes.

Here are some projects that can be used to promote Malaysia as a hotspot for penal tourism:

Stick no bills: The problem with the Ah Longs is not only their frighteningly high interest rates and intimidating debt collection tactics. Their annoying advertising strategy is to plaster signs, walls, lamp posts, phone booths and other surfaces with stickers bearing their contact numbers. Penal tourists can pay their debt to society by painstakingly removing these stickers and doing restoration work if there’s damage.

Setting the record straight: When somebody attempts to break a trivial record or establish a new one for example, the longest popiah, largest group of people doing Gangnam Style moves, most Facebook “likes” in 24 hours penal tourists will be present to verify the feat.

Gaydar duty: Penal tourists will be tasked with compiling statistics on the lesbian, gay, bisexual and transgender (LGBT) community. They will rely on a leaflet recently issued by the Yayasan Guru Malaysia Bhd and Putrajaya Consultative Council of Parent-Teacher Associations to spot those with LGBT tendencies.

Pointing in the right direction: Armed with laser pointers, penal tourists will be stationed at concerts, plays and cinemas to shame the inconsiderate people who use mobile phones, or who talk too much and loudly.

The scoop on food: Penal tourists will be put in charge of crowd control and apportioning of food at government open houses during festivals, AGMs of listed companies and popular hotel buffets. Their job is to ensure there’s queuing and that there’s no wastage of food. Now that’s true hardship.

Garbage or generosity?: There’s often a lot of unusable stuff among items given away to welfare homes and charitable organisations. The penal tourists can be deployed to sift through the piles of things.

Smoking wardens: This is strictly for penal tourists who relish a tough challenge with a dash of danger. They will patrol smoke-free zones to tick off smokers who insist on having a puff. The tourists will be required to sign indemnity forms before starting work.

Compelling courtesy: Instead of air marshals, we have bus and train marshals. The penal tourists will ride buses and trains to zero in on passengers who refuse to give up seats for the elderly and the disabled, pregnant women, and mothers with young children. Boarding passengers who don’t wait for others to disembark will be targeted as well.

To delete or not to delete: Online political forums can get wild and woolly if they aren’t moderated vigilantly. Penal tourists will be entrusted with the gruelling job of monitoring forums to ensure there’s no flaming and spamming, use of inappropriate language, and seditious or defamatory content. If that sounds punishing, Malaysia is on track to becoming a top penal tourism destination.

By The Star Executive editor Errol Oh is happy to be just a plain tourist.

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Ex-McKinsey CEO’s case highlights swapping of secrets in corporate world

Legal profession unattractive in Malaysia?

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Malaysia is not a hub for legal services in the region. The best minds are more interested in practising in other jurisdictions where the work and pay is better.

 

IT’S a funny world we live in. Today’s unalterable truth may be tomorrow’s shibboleth.

For the legal profession in Malaysia, the seemingly unalterable truth is – do not join the profession unless you are prepared to face the harshness of the working conditions.

However, if you persevere, the returns can be very rewarding and fulfilling.

The National Young Lawyers Committee (NYLC) conducted a survey on the working conditions of young lawyers in late 2011, and the results which were recently released can be found at http://www.malaysianbar.org.my.

It indicates that there is or will be a mass exodus of young lawyers from the legal profession because of the lack of work-life balance, low pay and bad working conditions.

The survey shows that the average starting pay is RM3,000-RM3,500 in the Klang Valley and RM2,000-RM2,500 outside of the Klang Valley – just enough to support the cost of living.

The average working hours are between 51 hours to more than 60 hours a week. Almost all young lawyers work weekends.

This means that, in the Klang Valley, based on the average monthly pay of RM3,250 (RM39,000 per annum, excluding bonuses) and average working hours of 55 hours a week (2,860 hours over 52 weeks), over a year, first-year lawyers are only paid RM13.64 per hour. It is much lower for pupils.

Outside of the Klang Valley, based on the average monthly pay of RM2,250 (RM27,000 per annum, excluding bonuses) and the same average working hours, over a year, first-year lawyers are only paid RM9.44 per hour.

Some recommendations were made by the NYLC to increase the starting pay and improve working conditions.

Some quarters cynically cried out that young lawyers are making demands despite being of low quality.

They say that young lawyers should not demand higher pay unless they have proven themselves.

Pause for a moment and consider what the survey results really mean. Firstly, it means that the profession, as a whole, is not attractive.

Students, when choosing a degree, will second-think pursuing law. Law students may choose not to practise upon completing their law degree.

Some will be driven by passion, but not everyone has enough passion to endure the initial hardship.

The best minds may instead be more interested in other professions. Why isn’t the profession able to retain these talents?

Generally, Malaysia is not a hub for legal services in the region. The best minds are more interested in practising in other jurisdictions where the work and pay is better.

The profession must improve and be the main legal services hub in the region. But the paradox is, to do so, higher salary and better working conditions are also required to attract and retain the best talents.

Secondly, not having an attractive entry point does not augur well for diversity in the legal profession.

The legal profession should be diverse because lawyers are guardians of rights and liberties of people of all gender, races, backgrounds or classes.

The current starting salary and working conditions, by chance or design, targets only a single demographic – fresh graduates, middle or upper middle class, living with their family, and having little family or financial commitments.

A prospective entrant who has dependants would find it hard to pursue a career in law given the low average starting pay, the long hours and the non-existing weekends.

To quote Lord Falconer: “If you don’t catch people when they’re 15 or 16, when it comes to choosing judges 30 or 40 years later, you won’t have the diversity you need to ensure that judges reflect society”.

Thirdly, with the starting salary and working conditions of the legal profession failing to attract and retain talents and not encouraging diversity, legal access would be significantly affected. Legal access also means having access to a lawyer of your choice.

The survey shows that 28.17% of the respondents in the Klang Valley and 15.29% of the respondents outside of Klang Valley are leaving the profession in the next five years and a further 38.73% of the respondents in the Klang Valley and 48.24% of the respondents outside of Klang Valley are uncertain of their future in the legal profession.

These staggering numbers show that lawyers do not want to be lawyers anymore.

Society will be affected because the choice of lawyers would be limited. There will not be a greater pool of talent to choose from for clients or when it comes to the appointment of judges.

The quality will have to be compromised with whatever the supply is. In the long run, it will be detrimental to the legal system in Malaysia.

The results and the recommendations by the NYLC are not unjustified.

It would be convenient to blame the law schools for failing to produce competent graduates. But employers must look at themselves and ask if they have been contributing to this problem.

The unalterable truth of today must be questioned. For employers who are truly concerned about attracting and retaining the best talents, the survey results and recommendations should be taken seriously.

For those who choose to ignore the survey results and recommendations, do so at your own peril.

PUTIK LADA

By NEW SIN YEW
newsdesk@thestar.com.my

> The writer is a young lawyer. Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, visit http://www.malaysianbar.org.my.

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Jul 30, 2012

Penang Road Bully

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AN assistant sales manager who uploaded a recording of a driver of an MPV allegedly ‘damaging’ the former’s car, has received more than 60,000 hits after it went viral online.

The footage, which lasted one minute and 16 seconds, titled ‘Penang Road Bully’, has been widely circulated on the Facebook in the past week.

Ooi Tze Dong, 29, said he was in his car with his girlfriend Lim Ann Si, 26, and they were on their way back from lunch at 2.30pm on Oct 17 when the incident happened at Lengkok Sungai Dua in Sungai Nibong here.

“We were about to go back after lunch when an MPV blocked our way.

“I honked twice at the driver to move his vehicle but he refused. Then I reversed my car to the back alley.

“I was shocked to see the MPV in the middle of the back lane and the driver demanded that I come out of my car,” Ooi said, adding that there was also a woman carrying a baby in the MPV.

He added that when he refused, the driver of the MPV allegedly tapped his car window and repeatedly kicked the driver’s side door, causing a dent.

Ooi said the man continued the ‘attack’ on his car even after Ann Si had started recording his act.

Take a good look: Ooi (centre) and Ann Si showing Lim (left) the police report and video footage of the incident at the Penang MCA headquarters in Jalan Pahang

He added that he then called the police and blocked the MPV from leaving the scene.

“However, the driver came at our car again with an umbrella and started hitting the windshield until it cracked,” said Ooi, adding that he then reversed his car and drove to the Sungai Nibong police station where he lodged a police report.

Ooi said he had also lodged another report at the Jelutong police station on Oct 22.

Speaking during a press conference at the state MCA headquarters in Jalan Pahang yesterday, Ooi said he was disappointed that no action has been taken yet against the driver of the MPV despite both his police reports.

“The officer in charge of our case advised us to settle the matter by discussing with the driver of the MPV but I just want the driver to pay the cost of my damaged car which had come up to RM5,000,” he said.

State MCA Public Services and Complaints Bureau deputy chief Lim Thoon Deong said that the police should be more professional in handling the case instead of merely ‘advising’ the victim to settle the matter.

“This is considered as attempted assault and the police should be more serious in curbing these ‘road bullies’ by bringing them to justice,” he said.

When contacted, George Town OCPD Asst Comm Gan Kong Meng said the case was being investigated under Section 427 of the Penal Code for committing mischief and damage.

He also said the officer-in-charge of the case is expected to refer the matter to the deputy public prosecutor’s office by next Monday for further action.

By HAFIZ MARZUKH The Star/Asia News Network

Why Malaysian Evidence Act Section 114A should be repealed

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Continued opposition to this piece of legislation may yet result in it being taken off the statute books.

THE recent amendment to the Evidence Act with the insertion of Section 114(A) basically presumes that a person who is depicted in a publication as owner or administrator is presumed to have published the contents.

This effectively means that those named in publications are presumed guilty of any offending content that may be posted, including those on the Internet where there is no licensing and it is easy to use some other person’s name, photograph and details as the originator.

This presumption of guilt, requiring the accused to prove his innocence, instead of the prosecution having to prove his guilt, is a strange reversal of the rule of law when the entire justice system is based on the assumption of innocence unless guilt is proven.

It is stranger still coming in the wake of moves to liberalise draconian laws such as the Internal Security Act which provided for detention without trial, and the Universities and University Colleges Act which severely curtailed the rights of students to participate in the political process.

When there is such liberalisation taking place, it is strange that the Government should be setting the clock back by introducing legislation that goes clearly against the grain of justice.

Yes, the Internet space is a raucous one and lots of stuff are pasted and posted, and people, including many in the Government, the Cabinet and the Opposition, are regularly blasted for things that they may or may not have done.

But there are laws to deal with them such as the defamation laws. And some of the victims have sought recourse to these with visible success, which includes Information, Communications and Culture Minister Datuk Seri Dr Rais Yatim.

Why, therefore, should a sledgehammer be given to prosecutors to bring a tonne of weight down indiscriminately on people who may not have committed the offence, but may have a tough time proving that they had not and may become involved in tangled knots with the law for a long time?

Conspiracy theorists, of whom a lot exist in this country due to the nature of the way things are, have immediately seen this as a move to limit criticism. That’s hardly a PR effort by the Government.

When the Centre for Independent Journalism organised an Internet blackout on Aug 14, it met with a tremendous response and many people just did not post anything on the Net during that particular day.

Such support must have had an effect on the decision of the Prime Minister to call upon the Cabinet to review its decision to pass the amendment to the relevant Act.

“Whatever we do we must put the people first,” the PM had tweeted, and who can disagree with that?

But unfortunately, the Cabinet stuck to its guns and backed its previous decision.

Dr Rais said the Cabinet discussed it exhaustively and decided not to make any changes because Parliament was represented by the ruling party and the Opposition and had debated it.

“Once it is officially passed, to do something now is an afterthought,” he said.

Dr Rais added that the Law Minister would explain further.

Later, Home Minister Datuk Seri Hishammuddin Hussein said the controversial amendment would be explained further by the Attorney-General.

“If explained properly, I believe right-thinking people will know why the amendment was tabled in Parliament and approved. If there still are fears, laws can also be tweaked, amended and abolished, but don’t get emotional about it,” he said.

Those interested will wait for the Government explanation, although Dr Rais had already said that presumption of fact was nothing new in law and there was still room for accused persons to defend themselves.

The converse position is that such a law can be abused.

Those who want to “fix” someone on the Net can post comments and claim that it came from that particular person. And that person will be tied up in knots trying to defend himself.

That is the main fear among Internet users and other publishers.

Inordinate power is in the hands of prosecutors who now don’t have to prove who the real publishers are.

The question is why grant them these additional powers under the amendment when the entire Internet is subject to the laws of the country?

The only difference is that there is no licensing of the Internet compared to conventional media such as print and broadcasting.

Thus, the new laws are seen as a move to bring the Internet under control more quickly than using existing laws, a move which the disinterested would oppose.

Policymakers may actually realise that. As seen by the quote from the Home Minister above, if there is continued strong opposition to the amendment, it could be repealed.

Perhaps it may need another tweet from the Prime Minister to make that happen, and this time he will be at that Cabinet meeting.

That should make a difference to what the Cabinet may think.

Question Time By P. Gunasegaram

> Like most people, P Gunasegaram can’t stand presumptuous people.

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Gu Kailai: High flying lawyer turned murder accused

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As a high-flying international lawyer married to one of China’s most promising and charismatic politicians and with a son at Harvard, Gu Kailai appeared to have it all. Now she is on trial for murder.

China Official’s Wife Doesn’t Deny Killing Briton

This frame grab taken from CCTV video shows Gu Kailai, the wife of Chinese politician Bo Xilai, facing the court during her murder trial in Hefei, Aug. 9, 2012. (CCTV/AFP/Getty Images/Newscom)

As a high-flying international lawyer married to one of China’s most promising and charismatic politicians and with a son at Harvard, Gu Kailai appeared to have it all. Now she is on trial for murder.

Since her detention earlier this year on suspicion of poisoning a British businessman a new picture has emerged of an at times volatile woman with a troubled childhood and a reported history of depression.

The daughter of a renowned general, Gu, like her husband Bo Xilai, is a so-called princeling — an elite group in Communist China whose family background has given them influence and privilege not enjoyed by most.

Like Bo, she studied at the prestigious Peking University, although the pair did not meet until 1984, while she was on a research trip near the eastern city of Dalian, where he had taken a post as a local party secretary.

“He was very much like my father, that sort of extremely idealistic person,” Gu, 53, told the Southern Weekend, a local weekly, in an interview published in 2009, recalling her first encounter with Bo.

“He lived in a small dirty room. He offered me an apple before telling me about his ideas.”

They married two years later and in 1987 had a son, Bo Guagua, who attended one of Britain’s most prestigious private schools, Harrow, followed by Oxford University and a postgraduate degree at Harvard.

She began work as a lawyer the same year the boy was born, later setting up her own firm and winning plaudits as the first Chinese attorney to successfully challenge a legal decision in US courts — an experience she recounted in two books that became bestsellers in her home country.

Ed Byrne, an American lawyer who worked with Gu, recalled her as “smart, charismatic, attractive”. “I was very impressed with her,” he said in a television interview.

As her husband’s political career took off, Gu gave up the law, a sacrifice to which Bo paid tribute at a press conference in March that was to prove one of his last appearances before the couple vanished from public view in April.

He described her as a stay-at-home mother who had given up a promising career to take care of her family, and hit out at allegations — which at that stage were not yet public — that he said had been made against her.

Details that have emerged in recent months of Gu’s life with Bo, however, suggest that his portrayal of a humble housewife was far from the reality.

She is reported to have spent several years in Britain while her son was at school there — a place arranged by Neil Heywood, the 41-year-old Briton she is charged with murdering after their business relationship went sour.

While in Britain, she stayed at the most expensive hotels and enjoyed access to a private jet owned by a billionaire friend, according to sources quoted in the New York Times.

Such privilege will have offered scant preparation for a life in jail — experts in the Chinese legal system say she is likely to be sentenced to around 15 years — although Gu’s life had not always been so comfortable.

During the Cultural Revolution her parents were detained and her four sisters sent to the countryside for re-education, forcing her to drop out of school and scrape a living variously as a construction worker, a butcher and a lute player.

State news agency Xinhua has said the evidence against Gu and her co-accused, a family aide, is “irrefutable” and suggested she was acting to protect her son from unidentified threats by Heywood.

This has been seen as a possible mitigating factor in her sentencing, along with the bouts of depression that she reportedly suffered in recent years.

Source: AFP

Former US President Bush ‘guilty of war crimes & torture’

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Bush found guilty of war crimes – But powerless tribunal cannot enforce sentence

 KUALA LUMPUR: The War Crimes Tribunal has convicted former US President George W. Bush and seven of his associates as war criminals for torture and inhumane treatment of war crime victims at US military facilities.

http://www.dailymotion.com/embed/video/xqpqda
KL War Crimes Tribunal pushes for Bush guilty… by presstv

However, being a tribunal of conscience, the five-member panel chaired by tribunal president judge Lamin Mohd Yunus had no power to enforce or impose custodial sentence on the convicted eight.

“We find the witnesses, who were victims placed in detention illegally by the convicted persons and their government, are entitled to payment of reparations,” said Lamin at a public hearing held in an open court at the Kuala Lumpur Foundation to Crimi­na­lise War yesterday.

He added that the tribunal’s award of reparations would be submitted to the War Crimes Commission and recommended the victims to find a judiciary entity that could enforce the verdict.

The tribunal would also submit the finding and records of the proceedings to the Chief Prosecutor of the International Criminal Court, the United Nations’ Security Council.

On Thursday, head of the prosecution Prof Gurdial Singh Nijar said Bush had issued an executive order to commit war crimes in Iraq and Afghanistan.

Five former Iraqi detainees, who were tortured while being detained in various prisons, including Guantanamo Bay, were called to give their testimonies before the Tribunal during the trial which started on May 7.

By QISHIN TARIQ
qishin.tariq@thestar.com.my

Bush ‘guilty of crimes of torture’

UNANIMOUS VERDICT: Kuala Lumpur War Crimes Tribunal orders reparations be given to torture victims

Kuala Lumpur War Crimes Tribunal president judge Tan Sri Lamin Mohd Yunus (centre) delivering the verdict yesterday. He is flanked by says reparations should be given to the complainant war crime victims. With him are Prof Salleh Buang (left) and Datuk Mohd Sa’ari Yusof. Pic by Hasriyasyah Sabudin

KUALA LUMPUR: Former United States president George W. Bush and his associates were found guilty of crimes of torture by the Kuala Lumpur War Crimes Tribunal yesterday.

The tribunal unanimously ruled that the prosecution had proved its case beyond reasonable doubt.

It said all eight accused had engaged in a web of instructions, memos, directives, legal advice and actions which led to the establishment of a common plan and purpose, joint enterprise and conspiracy to commit crimes of torture and war crimes, in relation to the “War on Terror”.

The War on Terror was launched by the US and others in Afghanistan and Iraq.

The eight accused are Bush; former US vice-president Richard Cheney; former US defence secretary Donald Rumsfeld; former counsel to Bush, Alberto Gonzales; former general counsel to the vice-president, David Addington; former general counsel to the defence secretary, William Haynes II; former assistant attorney-general Jay Bybee and former deputy assistant attorney-general John Yoo.

Tribunal president judge Tan Sri Lamin Mohd Yunus said the eight accused were also individually and jointly liable for crimes of torture in accordance with Article 6 of the Nuremberg Charter.

“The US is subject to customary international law and to the principles of the Nuremberg Charter and exceptional circumstances such as war, instability and public emergency cannot excuse torture.”

The tribunal agreed that Bush, Cheney and Rumsfeld knew the US was violating the 1984 Torture Convention and the Geneva Conventions but failed to intervene to prevent the violations.

“Evidence clearly shows the legal opinions and advice given by the lawyers Gonzales, Addington, Haynes, Bybee and Yoo to Bush, Cheney and Rumsfeld were legally flawed and the lawyers knew full well their advice was sought to be acted upon and thus are also liable.”

The legal opinions, contained in memorandums, were that the Geneva Conventions did not apply (to suspected al-Qaeda and Taliban detainees); there was no torture occurring within the meaning of the Torture Convention; and that enhanced interrogation techniques, consisting of cruel, inhumane and degrading treatment, were permissable.

The tribunal ordered that reparations be given to the war crime victims corresponding with the irreparable harm and injury, pain and suffering they had undergone even though the tribunal was merely a tribunal of conscience with no real power of enforcement.

The findings of the tribunal will be submitted to the International Criminal Court, United Nations and the Security Council and the names of the accused will be entered into the War Crimes Commision’s Register of War Criminals.

Former prime minister Tun Dr Mahathir Mohamad, in an immediate response, said the verdict and findings would be publicised globally and sent to heads of government of all nations.

He also hoped the public would not invite these war criminals to their countries.

“The International Criminal Court seems to be subservient to the big powers and does not seem to have the capacity or the willingness to charge the leaders of big powers who are responsible for torture, invasion of an independent country, destruction in war and for the killings of so many people,” said Dr Mahathir, who is the Perdana Leadership Foundation honorary president.

He said one step which could be undertaken, especially in democratic nations, was for people to insist that all election candidates should declare that they would never go to war on others.

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Bersih 3.0: the good, bad and ugly Malaysians

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When people who want change take to the streets, some stick to the perimeters of the law while others, with ulterior motives, break barriers and turn things unruly.

BERSIH 3.0 co-chairman Datuk Ambiga Sreenevasan‘s call for people to show their displeasure and demand for electoral reforms on Saturday brought out thousands of Malaysians from all races and walks of life in a colourful expression of free will.

But Ambiga’s calls also brought out the professionals the hardcore saboteurs who dreamt of regime change and the provocateurs who simply wanted chaos and trigger a mass protest that could eventually lead to the toppling of a democratically-elected government.

These people dream of sustained protests on the streets that eventually drive away tourists and worry investors.

Taking law into their own hands: Rioters using sticks and helmets to smash a car carrying the TV3 news crew as it was leaving Jalan Tun Perak, Kuala Lumpur, in 1999, soon after the verdict on Anwar was delivered.

Such sustained protests were last seen during the reformasi years in the 1990s with the arrest and jailing of the then Deputy Prime Minister Datuk Seri Anwar Ibrahim.

The same man was present on Saturday, after warning months earlier that Middle East-style protests could hit South-East Asian countries if the reforms were delayed.

If Ambiga thought she could keep everyone within limits, then she was sadly mistaken.

Different people read differently into a mass protest and the hardcore politicians in the crowd have other ideas too.

Reportedly, PKR deputy president Azmin Ali had egged on the crowd to break down the police barriers at Dataran Merdeka that were put up due to a court order declaring the place “out of bounds”.

Ambiga had given the order to disperse at about 3pm, but some marched forward and broke thorough the barriers.

They pelted a police car with bottles and stones, jumped on it and smashed the windscreen and later overturned it. They then attacked a police motorcycle and tried to grab a policeman’s gun.

The attack on the police car was reminiscent of an incident in 1999 when a TV3 car was set upon during the reformasi protest.

At a press conference later, Ambiga expressed shock over the turn of events.

The initial carnival mood where people were giving flowers to FRU personnel, who reciprocated by wearing them, was hijacked by a section of the crowd.

Ambiga described the violence as “highly unusual” and suspected that it could have been instigated by agent provocateurs.

The problem is that while Ambiga heads a civil rights movement which is winning support by the day from young people, who incidentally make up the bulk of new voters, she has chosen to tie that movement with Opposition politics.

She has given Opposition leaders an opportunity to ride on the Bersih movement.

Ostensibly, independent non-politicians fill the Bersih steering committee but they are also enthusiastic Pakatan Rakyat supporters.

The Opposition leaders are hardened politicians who have served time in jail, have courted arrest many times and are willing to take greater risk to trigger mass action.

During the two previous Bersih rallies in November 2007 and July 9 last year, a similar scene took place; a section of the crowd taking over the protest and turning it violent.

The same police force, which was peaceful in the morning, was forced to fire tear gas and arrest protesters in the afternoon.

It brings to mind DAP vice-chairman Senator Tunku Abdul Aziz Tunku Ibrahim‘s warning that by not using the stadiums offered, Bersih 3.0 “encourages Malaysians to break the law”.

He had said he supported an individual’s constitutional right to assembly but felt that it must be exercised within the provisions of the law. “As a lawmaker I am not willing to break the law.”

That same advice could also apply to Ambiga, a lawyer, but for politicians who desire regime change it is another matter.

The clock has been turned back on a burgeoning civil rights movement, and what could have been a shining example of peaceful protest, turned into a violent demonstration.

There were no warnings of reprisals in the days leading to Bersih 3.0, no roadblocks set around the city and no arrest of people streaming in for the protest.

But all that was blown away after some protesters breached the police barriers.

Many of the protesters who turned up on Saturday were those who genuinely wanted to bring about positive change. They had meant well and they represented middle Malaysia.

And, for the thousands of young Malaysians who braved Ambiga’s call for a sit-in protest over the slow pace of electoral reforms, it was their first baptism of fire and one that they can wear as a badge of honour.

 Comment by BARADAN KUPPUSAMY

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