Strong medicine

You learn something new every day.

Stare decisis – Latin for ‘to stand by things decided’ – is a cool phrase with a big stick, as I found out. In the laws of our land, as with many other societies, stare decisis is a key doctrine based on the principle that when a point has been made by decision, it sets a precedent. This precedent shall be respected and honoured in any subsequent cases.

Its aim is this: This policy . . . ‘is based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system; i.e., that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law’. (Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 296)

Federal Court Judge Augustine Paul pulled that phrase out Thursday when dissing his colleague Gopal Sri Ram of the Court of Appeal. Justice Paul mentioned this in a written judgment over the Metramac-Fawziah Holdings case.

The Star reports:
“Justice Paul said that although Justice Sri Ram was correct in saying that the Federal Court had made the wrong decision in Lam Kong Co Ltd v Thong Guan Co Pte Ltd and Capital Insurance Bhd v Aishah Manap & Anor, he was not the right authority permitted by law to express such an opinion.

“As both cases are judgments of the Federal Court he (Justice Sri Ram) is bound to follow them whether he agrees with them or not.

“The stand taken by him is in blatant disregard of the doctrine of stare decisis, particularly the need to comply with this fundamental rule of the common law,” he said.

Justice Paul, in predictable fashion, goes on to mention another point which forms the paradox to the doctrine.

“However, in the written judgment, Justice Paul agreed that both the cases of Lam Kong Co Ltd and Capital Insurance had been wrongly decided.

In the two cases, the Federal Court had ruled that any interim decision or ruling by the Court of Appeal made pending or before the end of proceedings cannot be appealed to the Federal Court.

Justice Paul said the Federal Court now did not agree with the ruling of former Chief Justice Mohamed Dzaiddin Abdullah in the Lam Kong case that this was done to “filter against unnecessary appeals.”

Here’s the dilemma. Granted that the courts are run by humans, fallible as we are, mistakes will be made. There will be wrong decisions. If stare decisi is to be upheld in its purest form, we’re in trouble. Who rights the wrong?

While it is true stare decisi forms a key doctrine in law, its exactitude is also one of the most debated topics in the courts of many countries. So potent is its content, the best minds of the law are wrestling to manage it from abuse. (Here's one good essay.)

Yet some, I believe, clamour for it as a convenient weapon to achieve an agenda. It is an animal instinct: If it’s there, why not use it to serve us?

Lately, the government has been emitting strong signals to toe the line. We’ve read about Sharir and the ridiculous Umno Whip. The message – forget conscience, toe the line. On Sunday morning, the police used force and aggression against demonstrators to the fuel and electricity hikes at KLCC. The message – go home, change your lifestyle, toe the line.

Augustine Paul’s criticism of Gopal Sri Ram is a weak one. It was a cheap shot that reeks of masters and servants and the stink of politics invading the sanctum of the judiciary. I read it as a prepping up and dressing down of the eventual decision to come on the Metramac-Fawziah case.

Thanks to incompetents, we’ve lost our balance of right and wrong. We’ve allowed fools to smash our lamps of truth. It is okay to be a cheat. You know, close one eye.

How else do you explain that over at Sipadan, one of the most unique marine ecosystems around – after a contractor’s illegal barge ripped apart a section of corals and exposed suspicious building contracts and deals probably with the government – the State Tourism, Culture and Environment Minister Chong Kah Kiat comes on the news saying the contractor has apologized so there will be no penalty imposed, just a cleanup fee. Fuckwits.

Seems like the wheels of deceit are spinning happily. In fact they’ve have been equipped with new all-weather tyres. Clearly, when one resorts to strong medicine – from citing stare decisis to police force – it illustrates a lack of faith in the body system to regulate its own health. It deems that a critical and thinking public, one that demands accountability and fairness, is a fever that needs fierce control.

They forget there’s such a thing as overdose.

Seasoned

We're like neighbours separated by a fence called the Titiwangsa Range. While most of the limelight has fallen on the west coast states of peninsular Malaysia, the east coast sails along, its culture growing confidently without the bulldozers of development.

Guys in shades and dive-gear probably remember it more for the great beaches and underwater world, and perhaps visions of a tanned babe in a bathing suit. All that is true. But there is indelibly more.

In reality, Pantai Timur has arguably a more layered history stretching back to the glory days of Langkasuka and even before that. As with sands shifting, so did local culture; and what is this culture today? What are its values? Forget politics and the newspapers. Go there. Go there and feel.

Any novice interested in local history will find this stretch of coast over 450km a refreshing template as to how people work together, play together. Observations on my other blog: http://straits-mongrel.blogspot.com/2006/05/mute-and-salted.html

Eating up history

Maybe it's in the quiet shadows, maybe it's age but I'm disturbed by the directions of Melaka's growth. I firmly believe we made a terrible mistake in the 70s and 80s by reclaiming land at the mouth of the Melaka River. We're allowing the disease to spread today.

Does history have to be buried in the name of progress?

Did a roadtrip with Hup, spent a couple of nights in Melaka plus a quick jaunt to Muar. The whole place is a gemstone of breathing history. But we seem intent on suffocating it.

Yesterday, we defaced Banda Hilir and Tranquerah. Today, we're killing Klebang to who knows where... Tanjong Kling? Tanjong Bidara?

If Hang Jebat was around, he'd have those responsible quartered and cooked. My rants: http://straits-mongrel.blogspot.com/2006/05/water-margin.html

A very good walk

I read that he asked for a kretek before he died. He loved his cloved tobacco – the crackling stick, tingling bite to the lips, the full-body smoke in the lungs – as he loved Indonesia. Pramoedya Ananta Toer, writer and beacon, died this morning at home in East Jakarta.

Unlike the many episodes he went through in his 81-year life, in this final passage he was among family, and that at the very least must have been a beautiful thing.

It has been a long, long trek for Pramoedya, born Feb 6, 1925 in the Central Java town of Blora beneath the sheltering canopy of its teak forests. He was the first-born among nine siblings and was given a name he stoically lived up to without bend or feign. Pramoedya means “First in the Battlefield”. And early in life while a loyalist soldier, he quickly discarded the bayonet for the pen.

He lived through Dutch rule, then the Japanese Occupation, saw the red and white flag of Indonesia raised and the decades of independence thereafter. After the war, pressing for a free Indonesia, he was jailed by the Dutch for 2-1/2 years. In 1960, his pen singeing with anger at the continuing feudalistic practices of the Sukarno government, he was jailed again, this time for two years. The most brutal was to come under Suharto – Pramoedya was detained without trial along with thousands of political prisoners, and imprisoned for 14 years, ten of which were on the penal island of Buru. It has been reported that in all the years of his captivity, he had never been charged with a crime.

It has been said that whatever doesn’t kill you can only make you stronger. Pramoedya’s works are proof. From as early as Perburuan (The Fugitive), first published in 1949, to the magnificent Buru Quartet, his verses have a quiet beat that remind you of the warm Nusantara nights, of cicadas, and the sloshing gullies during a rainstorm. They remind you of the smell of your own bed, of fresh-cut serai, and the tsk-tsk croak of geckos. It's that kind of beat.

They haunt.

Ironically enough, I first came to hear of Pramoedya’s works in a country and culture far from the tropics. In a toasty living room on a winter’s night in Eugene, OR, Coleen F, a wonderful American friend was recounting her days in Southeast Asia. She and then-boyfriend, now-husband Stephen had spent many months traveling in the region from Sulawesi to Sumatara to Indochina. Both speak fluent Bahasa Indonesia, and I must thank them for reawakening my affiliation to these lands.

“Try this,” Coleen said, over a mug of coffee. “Maybe you can tell us if it feels real to you.” It was a yellowed, dog-eared paperback, tattered at the corners, the sort of book that’s been floating through the hands of many back-packers.

It was This Earth of Mankind, the first novel of the Buru Quartet, which traces the growing nationalism through the eyes of Minke and Annelies. That night, in my frigid room, I read the opening paragraphs, then pages leafed over pages and slowly into chapters. Yes, it felt real. Not only that, it hit a depth in my being not very often struck. It unraveled a culture I knew but wasn’t intimate. It captured scenes and dialogues I lived in. It was vivid. It told a history and a people’s values far better than any textbook in school.

Two years later, I was back in this region, to this water wonderland. In my early days back, I was browsing through the book bins in Giant at Shah Alam when I found two jewels – Pramoedya’s The Fugitive, and House of Glass (final installment of the Buru Quartet) – chucked among other novels and children’s nursery rhymes. For RM9.95 a pop, it was a steal. Months later, while strolling through Books Kinokuniya I came across the exact two titles in the original Bahasa Indonesia version. What joy.

While the original version has a definite more earthy texture given the gamelan nature of Bahasa, Willem Samuels' translations are quite wonderful in themselves.

It has not been easy coming upon Pramoedya’s works in this land of pop booksellers and I still lament the absence (or demise?) of a used book culture that throbs with so much vibrance at affordable prices, a place where good literature can still be obtained on a shoestring existence. But that’s another story.

Here’s what matters for now. Pramoedya Ananta Toer lit it up for me then, and in reading about his life and causes, continues to light it up even more. In his struggles and uncompromising stand on honest values, he sits emblazoned as one of the few people in Southeast Asia who had the balls to show he had a heart and a brain. The role of literature in Indonesia “is simply to raise the level of humanity”, he had said.

He was unafraid. He was unafraid – as so many today are still afraid – to acknowledge, for instance, that the beauty and greatness of the Indonesian spirit is a concoction of many different cultures, the Chinese being a major one. Accept that fact and accept these people, he wrote. He was persecuted and jailed by Sukarno for delving on that topic (the Hua Kiau letters).

He was deemed a left-wing activist, a communist, by Suharto and was impounded on Buru, stealing away what would have been the years of fatherhood to his infant children. “Follow me, sir. I'll take you to safety,” an army corporal had told him as a mob gathered outside his house that fateful October night in 1965. He was led to a truck, clubbed with a rifle and lost his hearing.

In Buru, without pen nor paper he recited his stories orally. He was released from Buru only to be confined to house arrest in Jakarta. His books were banned under Suharto’s Indonesia and his name was not allowed to be mentioned in any publication. In 1992, on Human Rights Day, he simply decided to walk out on the streets and be a free man. It helped that Suharto was a weakened man by then.

An honest life spent bears its fruit although they may come years later. In the course of crafting his oeuvre – 37 novels, poetry, essays – Pramoedya was nominated for the Nobel Prize in Literature a number of times and was awarded the Ramon Magsaysay Award in 1995 among many others.

But for me, I believe the happiest denouement to his life was that at the end of the day, when the shades finally came down on his lithe body, he had had a final kretek – Indonesia’s own – all quiet and peaceful, crackling in that sweet clovened smell. And he had his family around, his own.

Rest well, my kindred spirit, rest well. You’ve had a long beautiful walk.



Photo: Stanley http://www.radix.net/~bardsley/photos2.html

Notable links:
http://en.wikipedia.org/wiki/Pramoedya_Ananta_Toer
http://www.radix.net/~bardsley/prampage.html
Provides huge body of literature and photos on Pram and his work.