KALAU BUKAN DI SINI, DI AKHIRAT

Kosmo, October 25 2009 (Rencana Utama) - Seorang bekas pegawai tinggi pasukan keselamatan, Marjan (bukan nama sebenar), dilepaskan daripada tuduhan merogol seorang gadis terencat akal berusia awal 20-an. Hakim menyifatkan persetubuhan dilakukan atas dasar suka sama suka. Hakim juga menyatakan bahawa si gadis rela melakukan hubungan seks dengan Marjan lantaran tidak membantah, tidak takut dan terus mengunjungi tempat yang sama selepas kali pertama tumpas kepada nafsu lelaki itu. Keputusan hakim itu disifatkan sebagai sesuatu yang luar biasa kerana tidak mengambil kira keadaan gadis yang disahkan terencat akal separa oleh pakar psikiatri dan tidak boleh memberikan kerelaan secara sah kerana dia tidak mampu untuk membezakan antara baik dan buruk.

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MY ARGUMENTS

For me, this is some kind of humiliation to our justice department. The judgment given by the learned judge was highly criticized. The offence of rape is considered a threat to the public at large and it should not be taken lightly. This is not an escape goat case. It involves dignity of a person. Rape is a criminal case and in each and every case of criminal, in order to determine the liability of the accused person, two main ingredients need to be proven which is the actus reus (the guilty act of the accused person) and the mens rea (the guilty mind of he accused person). This is based on the legal maxim, "actus non facit reum nisi mens sit rea" which means, an act does not make a person legally guilty unless his mind be also guilty.

In Malaysia, rape is dealt under section 375 of the Penal Code. According to this section, a man is said to commit "rape" who has sexual intercourse with a woman under these following circumstances:

a) Against her will.
b) Without her consent.
c) With her consent, when her consent has been
obtained by putting her in fear of death or
hurt to herself or any other person, or obtained
under a misconception of fact and the man
knows or has reason to believe that the consent
was given in consequence of such
misconception.
d) With her consent, when the man knows that
he is not her husband, and her consent is
given because she believes that he is another
man to whom she is or believes herself to be
lawfully married or to whom she would
consent.
e) With her consent, when, at the time of giving
such consent, she is unable to understand the
nature and consequences of that to which she
gives consent.
f) With or without her consent, when she is
under sixteen years of age (statutory rape).

Now, basically, section 375 requires two things for the accused person to be liable under rape, namely, sexual intercourse by a man with a woman and the sexual intercourse must fall under any of the limbs mentioned above. the first limb which is limb (a) is relevant in a situation where the victim is in possession of her senses and therefore is capable of giving consent. The second limb, limb (b) is where the victim is insensible or unconscious or so imbecile that she is incapable of any rational consent. In limbs (c), (d) and (e), there is consent but it is not such a consent as would excused the accused. The consent is invalidated by the circumstances mentioned in the provision. The last limb which is limb (f) refers to a situation where the victim is below 16 and consent is irrelevant. One thing to be noted here is that, in the case of rape, consent of the victim is the fundamental principle to determine the liability of the accused person. The act of penetration comes later. This is simply because, consent must be given before the sexual intercourse either by word or by action constituting that she consented to that intercourse. As to the issue of penetration, it must be proven that the accused penis had penetrated the vagina of the victim. Full penetration is not necessary as slight penetration can constitute rape even it does not break the hymen of the victim.

There are two factors which invalidate a consent which are threat and misconception of fact. In the case of the first factor, the victim had to give consent out of fear or injury to herself or it may extend to others either. Such consent is not a valid consent and it may render the accused person to be liable for rape under section 375 (c) of the Penal code. This can be seen in the case of PP v Teo Eng Chan [1988] 1 MLJ 156. In this case what happen was that there was a gang rape. The victim was threaten with a knife point and was forced to have sexual intercourse. She had to consented because she feared that something bad might happen to her or she might be hurt by the pointing knife. All the accused persons raised the defense of mistake because they thought that the victim consented. The Court in this case held that the consent given was not valid as it was given out of fear or injury and it was given because the victim was threaten. The Court later added, how was that possible the victim had consented when her life was at stake? As to the defense of mistake raised by the accused, it was ruled out as the Court found out that all the accused person were negligence and hence liable for rape because they have acted out of proper care and caution.

The case of the second factor, which is the misconception of fact is far more interesting. The principle rule is that, consent which is given out of misconception of fact is not a valid consent. In this scenario, the victim had given consent because of the misconception of fact. For an example, A, thinking that B is the famous singer, say Faizal Tahir for an instance and B knowing of the fact that A had misunderstood him as somebody else, induced her to have sexual intercourse. B is liable for rape. In such cases, section 375 of limb (c) and (d) come into force.

Now, here comes the most interesting part which is related to the article in Kosmo as i mentioned earlier. As far as our discussion had gone through, we have discussed limb (a), (b), (c) and (d) of section 375 of the Penal Code. Well, here is the most related part of our discussion which is limb (e) of the said section. Limb (e) of 375 is an extended provision specifically deals with a situation whereby the victim was rape due to fact that she was insensible and incapable of any rational consent. Looking back to this specific provision, limb (e) and limb (b) of section 375 are somewhat similar except in limb (b), the victim never consented due to her imbecility or she was intoxicated. Limb (e) on the other hand, the victim did gave consent but she was unaware of her action since she cannot differenciate between right and wrong as well as good and bad and she is incapable of giving any rationale consent. Section 90 (b) of the Penal Code has underlined the issue of consent and clearly stated that a consent is not a valid consent if it was given by a person of unsoundness of mind or intoxicated and is unable to understand the nature and consequences of her action to which she had given the consent to. Coming back to the said article in Kosmo, the judgment given was irrational and totally ignorant to the fundamental principle in cases of rape which is consent. The victim was suffered from imbecility and she cannot make any good judgment between right and wrong as well as good and bad. She was unable to understand the nature of her act. This clearly a case under section 375 (e) of the Penal Code and the accused should be convicted for rape punishable under section 376 of the Penal Code which will carry punishments of imprisonment for a term of not less than five years and not more than twenty years and shall also be liable to whipping.

As a conclusion, this very case is clearly unfairly treated case and it has brought a humiliation to our justice system. For God sake, this is a clear cut strict liability case. There is no need to prove mens rea of the accused person but still, the judgment was given in favor of the accused person and the court held that the sexual intercourse between the accused and the victim was a consented intercourse in spite of the fact that the victim was an imbecile person according to the psychiatrist which happen to be the medical examiner in this case. Seriously, where is the justice when a person needed it the most?

THE BOND THAT NEVER FADED V2

THE BOND THAT NEVER FADED

I think it was not too late for me to share something with all of you out there about something which I regard as nostalgic to me and perhaps to some of my friends out there too. It was about a day which happen to be on August 1st 2009. A day that none of us will ever forget. A day which brought all of us together under one roof. Okay, I lied. Not all, but you can say a quarter of us. By us, I mean my friends, my former colleagues from my other life in secondary school. What in the world I am babbling about? Okay, cut this crap and nonsense. Coming back to my story, that day was a nostalgic and classic one. The day that we held our reunion after six years of separation. Everyone looks so classy in black and purple attire which happen to be the theme for the reunion party. Two weeks before the event, all the committee members were trying their best to make sure that this event will work just fine. And Alhamdulillah, although there was a slight misunderstanding between the committee and the hotel management as to the issue of venue, but that issue has been successfully catered before the event started on the same day.

With approximately 50 persons, the event started with welcoming remarks by master of ceremony, Mohamed Munzir and later on with appreciation speech by our former Head of Hostel, Mohd Taqiuddin Azman. The event continued with diner. As far as I can remember, that night we have approximately 30 meals served buffet with 8 main course and 22 other side dishes as well as appetizers. As I was concerned with insufficiency of meals due to the capacity of persons involved, I was proven to be wrong as those meals were incredibly more than enough to feed at least another 50 persons.

Later on that night, we have a surprise for our married couples. I don't know whether they already knew that we are going to surprise them with another "Bersanding Ceremony" but, little that I know, they seems happy to me. And guess what? One of my friend, Sufarah Azizah has been pregnant for four to five months already. Congratulation to her and her husband as well. Seing those faces again on that historic and nostalgic day have made me realized that in life, how far you go and how long you have been separated with your friends, that bond of friendship has never faded. It remains as in the first day we built and strengthen it through years of studies. And we will keep it that way as we travel through this amazing and wonderful life.

FINISH IT STRONG

I haven't notice until now that lately I have been posting topics on football too much. Not that I have nothing else to say or to share with but writing about football is much more easier than writing about oneself. I need not to find a proper word. Any simple word will suit well. I just need to nail it down to the spot. But again, it is just another excuse for me. Actually, I did not find a right and suitable time to write something about me. I have been busy lately or should I say the past 2-3 months. That is quite sometime right? Well, life a bit messy for me right now. I need to fix things accordingly to the way they were before. A promise I made to myself and to someone who is very much concerns about me right now. This time, it is not about me anymore. It is about the future that awaits me.

WEAK WEEK?

Well, it has been a hectic week for me. With all the assignments and presentations to be done, its like a never ending work. More tiring than working actually. And that never ending work seems to be bothering me again the next two week only it gets worse with mid term just around the corner. A straight week of examination and a lot of topics to be covered in these few days. And, a nightmare just begun, I have to repair one personal computer and two laptops. Why in the world I am willing to do all these? Gosh! I thought when i went to a trip with my cousin last week, I could somehow relief myself from all these stressing and tiring situations but in the end I have been proving wrong. So much of a vacation...(sigh).

And now I am spending time in this blog instead of doing something I should really do. Confusing or it is just me babbling and whining? You tell me

THE NEXT SAN ANDREAS

It has never been easy for a young player from the cantera to make it big at Real Madrid, let alone during a Galacticos era.

Expectations from fans and the media are always overwhelmingly burdensome and opponents treat them like they would any other experienced superstar signing. But in Esteban Granero, Los Blancos have in their ranks a real, unpolished gem; someone who could unfold as the surprise performer in the team and end up becoming Manuel Pellegrini’s secret weapon throughout the course of the campaign.

He may only have played a little over an hour’s worth of football with Madrid since his making his dream return from Getafe a week ago, but he has already done enough to show his potential and give the Bernabeu faithful a glimpse of what he has to offer.

Those who observed him closely when he was with Los Azulones will know full well of the talent that he possesses. And for those who have only seen him in action for the very first time over the past week, they would have been suitably impressed.

Within minutes after coming on as a substitute for Wesley Sneijder in the 1-1 draw against Al-Ittihad in the Peace Cup, Granero came within inches of scoring a stunning goal on his debut when his 20-yard piledriver just clipped the wrong side of the bar.

But he did find the back of the net in the second game against LDU Quito, pouncing on a spilled shot from Cristiano Ronaldo and finishing off the rebound with clinical composure. As if that wasn’t enough, he went on to provide the assist for the team’s third goal when he delivered a pin-point corner for Christoph Metzelder, something both Sneijder and Guti had failed miserably at when assigned that specific task.

These are just the two qualities that could see him become Real Madrid’s version of Barcelona sensation, Andres Iniesta. Although not identical, they are very similar players in more ways than one and in fact, the only thing starkly different is their appearance. One looks like a choirboy and the other looks like, well, a pirate… as his nickname would suggest.

Granted, Granero’s goal against LDU was nothing special, but it does demonstrate one vital characteristic as a natural attacking midfielder: the ability to make that stealthy run into the box, just like Iniesta often would.

And just like the Barca man, he is also incredibly versatile. He can play anywhere across the midfield and he has even been utilised as a forward at Getafe. These are traits that will come in handy as it will allow him to see more playing time by slotting in anywhere on the pitch when required. In return, he will give the Merengues more options in attack and depth in the squad.

While opponents will have their bulls-eye mark pinned firmly on the high-profile Galacticos, Granero could be given the luxury to fly under the radar, much like Iniesta did when he first broke through. Flanked by players like Xavi, Deco, Ronaldinho, Lionel Messi and Thierry Henry just to name but a few, ‘San Andres’ would often be the team’s unsung hero or the unheralded superstar.

Granero, too, can assume that role. The constant attention on players like Ronaldo and Kaka, and potentially Xabi Alonso, will allow him to quietly bang in some stellar displays without stirring up too much of a fuss for rival defenders to take notice.

Of course, ‘El Pirata’ is unquestionably still light-years away from reaching the level Andres is at currently. But if he is given a chance to show his worth this season and then consistently improve on his performances in the subsequent campaigns, he could become Madrid’s own Iniesta in the not so distant future. And training regularly alongside big guns such as Cristiano, Kaka, Karim Benzema and Raul will help him develop, sharpen and enhance his game in half the amount of time it would take him if he were to be temporarily shipped out to another club again.

It doesn’t hurt either that he has an immense desire to succeed at the club he first joined when he was only eight, and that he has already built up an instant rapport with the Bernabeu die-hards, who are desperately crying out for a new homemade hero. And that’s often the most important factor: the support and encouragement from the local fans. And we all know how fickle-minded and demanding the Madridistas can be.

If he can maintain his confidence levels and keep on progressing like he has over the past few years, there’s no reason why he can’t succeed. And if there’s one homegrown Blanco who can take the world by storm in a few years’ time, it would be Granero.

THE REUNION

as far as we are concerned, it is only a few days left before our grand reunion the next coming Saturday. the preparation of the said reunion has entered to the final stage and we will be releasing our event tentative in a few coming days. i know that everybody is looking forward to this historic moment since we haven't had any formal, exclusive and grand reunion like this before. even me and the other committee members are trembling and sweating like rocks and we are doing beyond our best just to make sure that this thing happen and most importantly to have this reunion a nostalgic moment that will be in mind and heart for years to come so that when we grow older in our life course and when we look back, we will proudly left a beautiful smile and said, "this was the moment that define friendship and love".

so, on behalf of the reunion committee, i would like to express our gratitude to all friends out there who have been supportive up until now. thank you for your warmest cooperation and i hope we could really enjoy the day that we called, "the reunion"