Time to deal with treason for what it is
A CANCER THAT NEEDS TO BE REMOVED
As the cancer of foreign (western) intervention in governments of south east Asia continues unabated with Indonesia being the latest and perhaps most volatile of all, the Malaysian government has decided to release its nemesis Mariah Chin Abdullah from detention.
Amidst calls for her re arrest and continued detention, the government appears to be softening its approach to dissent and treason or how to deal with it within its own extant laws.
Mariah Chin Abdullah was arrested under Section 124C of the Malaysian Penal Code which provides thus:
ATTEMPT TO COMMIT ACTIVITY DETRIMENTAL TO PARLIAMENTARY DEMOCRACY
Whoever commits an activity detrimental to parliamentary democracy or does any act preparatory thereto shall be punished with imprisonment for a term which may extend to fifteen years.
Herein lies much of the problem with Malaysia’s legal system. Drafting flaws in the various acts of parliament (statute) is often drawn up in the vaguest of terms. The result is that it renders legislation ineffective. In other instances circumlocution appears to be an art form in drafting legalization endangering its purpose, providing ample opportunities to defeat the object of legislation in court.
Commentators have articulated misgivings over the opportunities that the reforms present for unprecedented powers to outlaw, interrogate and jail opponents of the ruling political party. While it should not be assumed that the government of a democracy would seek to abuse its powers, it is also true that “eternal vigilance is the price of liberty”.
There is nothing in the reading of section 124C under which Mariah Chin Abdullah was charged to suggest that ‘intention’ has to be proved by the prosecution. Treason and its derivative actions are strict liability and absolute liability offences. No intention needs be proved although there is a rebuttable presumption available to the defence to dislodge charges against them in this category of offences.
INTENT AS A PRE REQUISITE FOR THE OFFENCE TO BE PROVED?
There is a common law presumption that ‘mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence’. The general requirement of mens rea is said to be ‘one of the most fundamental protections in criminal law’ and it reflects the idea that it is generally neither fair, nor useful, to subject people to criminal punishment for unintended actions or unforeseen consequences unless these resulted from an unjustified risk (ie recklessness).
Ashworth and Horder write: The essence of the principle of mens rea is that criminal liability should be imposed only on persons who are sufficiently aware of what they are doing, and of the consequences it may have, that they can fairly be said to have chosen the behaviour and consequences. Some criminal offences, however, do not require proof of fault—these are described as strict liability and absolute liability offences.
There are many offences for which intention or the mens rea need not be proved.
An offence for which the mens rea is not required to be proved, is said to be an offence of strict liability. Examples of such offences (of strict liability) include kidnapping and public nuisance ( treason also in many instances fall within the ambit of strict liability offences). In the civil context, defamation comes immediately to mind.
strict liability offences—the prosecution is not required to prove fault, but there is a defence of reasonable mistake available and absolute liability offences—proof of fault is not required and no defences are available.
It is implied as an element of the offence that, at the time when the person who commits the actus reus does the physical act involved, they either know the circumstances which make the doing of that act an offence; or they do not believe honestly and on reasonable grounds that the circumstances which are attendant on the doing of that act are such as to make the doing of that act innocent.
Strict liability offences do not require the prosecution to prove the mens rea although it will usually be inferred from the surrounding and attendant circumstances relating to the commission of the offence. This is of course a rebuttable presumption and it is for the offender (defendant) to rebut that presumption at law.
Interestingly the Australian Constitution does not expressly require that criminal offences include the element of mens rea.
HOW THE JUDGE IN MARIAH CHINA ABDULLAH CALLED IT
As to what reasons the honorable judge proffered in his decision to release Mariah Chin Abdullah from detention and to suggest that the state would have to prove intent on the charges against her is unclear.
It is difficult to fathom how any reasonable court having heard all the evidence laid before it and from the public record of the history and nexus between Bersih, the CIA, the Open Societies Foundation and the NED (National Endowment for Democracy) and more recently from comments made publicly by Bersih’s leader Ambiga Srinivasan, could draw the conclusion it did win Mariah Chin Abdullah’s matter.
Putting aside all of the other evidence there is clear statements by Bersih and its leaders that their objectives are more than that of free and fair elections. Theirs is an unambiguous unqualified objective of bringing down a democratically elected government, an arm of which is the judiciary.
Mariah Chin’s history of working towards destabilization of Malaysia from her time in London with the US Central Intelligence Agency and the National Endowment for democracy amongst others is not an unknown. Mariah’s is the offence treason (by US Constitutional standards). Reference to the US is relevant in this context because the US is the author of Mariah, Ambiga and Bersih’s treason. The other thing worth noticing about the American definition of the crime is that it does not include an explicit mens rea term. An neither does the Malaysian definition.
There are two sides to this coin. The paucity of knowledge and experience in dealing with offences of terrorism, treachery, treason and sabotage in the Malaysian bench post Chin Peng on the one hand, and the imprecise nature of drafting legislation in Malaysia being the other.
GOVERNMENT AND THE STATE OF LEGISLATION
Unless the government is prepared to take the steps necessary to make legislation clearer with more precise drafting, the Mariah Chin Abdullah’s of this world will continue to have a picnic at state expense and cause the deterioration of government and its reputation internationally without let or hindrance.
Even in liberal western democracies such as Australia is, the intention of perpetrators to coerce governments and intimidate the public was considered by Australia’s Parliament to pose sufficient threat to the fabric of the social and democratic system for related acts of violence to be labeled as crimes more immoral than other more common random societal tendencies to violence.
Academics and legislators in many countries have argued in favour of laws that are sometimes oppressive in the face of the type of apparently benign forms of terrorism of Ambiga and Mariah Chin Abdullah’s Bersih thus:
“Laws of indefinite detention and in some instances in breach of basic Human Rights and the convention that supports it even if not fully consistent with provisions of international human rights instruments, effective criminal laws properly adopted within a liberal democracy might well pose a lesser evil than ineffective action, consistent with international human rights instruments, against private coercion through acts of terrorism”.
From an Australian academic’s perspective comes the following:
“We suggest that a rough but reasonable measure of the legitimacy of counter-terror laws is the extent of their collective approval through a democratic process that enfranchises and effectively reflects the values of the majority of persons who are addressed by those laws”.
TIME TO SHOOT THE STRAYS
Back to Mariah Chin Abdullah’s release, unless the government has something else up its sleeve, she ought to be taken back into custody together with Ambiga Srinivasan and the board of the Malaysian Bar to explain their collective conduct as subversives now that the ‘cats out of the bag’, and knowledge of their receipt of foreign funding is public knowledge whether they deny it now or not.
The evidence against Mariah Chin Abdullah and Ambiga Srinivasan and the collective of NGO’s like the Malaysian Bar and Sisters of Islam is far too large and too cogent and damming to ignore.