Monday, October 26, 2015

Tipping the scales - have our courts lost the balance?

In PP vs Kok Wah Kuan [2007] 5 MLJ 174, the Federal Court said (Abdul Hamid Mohamad PCA writing for the majority): “Our constitution does have the features of the separation of powers and at the same time, it contains features which do not strictly comply with the doctrine.
"To what extent the doctrine applies depends on the provisions of the constitution. A provision of the constitution cannot be struck out on the ground that it contravenes the doctrine. Similarly, no provision of the law may be struck out as unconstitutional if it is not inconsistent with the constitution, even though it may be inconsistent with the doctrine.
"The doctrine is not a provision of the Malaysian constitution even though no doubt, it had influenced the framers of the Malaysian constitution, just like democracy. The constitution provides for elections, which is a democratic process.
"That does not make democracy a provision of the constitution in that where any law is undemocratic it is inconsistent with the constitution and therefore void.”
If the doctrine of separation of powers does not exist in the constitution, the decision of the Federal Court in the Kok Wah Kuan case suggests that the judiciary will not act as a strong check and balance against the excesses of either the legislature or the executive, i.e the government and Parliament/state assemblies respectively.
Five recent decisions of the Malaysian courts, at either Federal Court or Court of Appeal level, appear to confirm this observation.
The courts in these five cases have shown little inclination to protect the individual and uphold the individual’s fundamental liberties in the face of prohibitions or limitations from the government through the application of provisions of the law enacted by either Parliament or state legislatures.
What the courts appear to be doing in these five cases is, on the one hand, to give a wide interpretation to any provision that allows the government or Parliament to restrict the scope of fundamental liberties. Whilst, on the other hand, to give a narrow interpretation to the rights of the citizen or individual, and to any challenge to the restriction of that right.
In Azmi Sharom’s case, the Federal Court in effect held that pre-Merdeka legislation, namely the Sedition Act 1948, which defined and criminalised seditious speech, need not be applied subject to such modifications as would be necessary to take into account of provisions with respect to the right to freedom of expression in the constitution.
The transitional provisions accorded to Parliament to accept and preserve pro-colonial pre-Merdeka prohibitions against free speech were held to outweigh any obligation on the part of Parliament to apply its mind to ensure that restrictions were only imposed for the purposes permitted by the constitution.
Can assemble but must pay price
In the PP vs Yuneswaran case, the Court of Appeal held that it was lawful for Parliament to criminalise the failure of an individual to give 10 days’ prior notification of the holding of a peaceful assembly as required under the Peaceful Assembly Act 2012.
The court took the view that the Peaceful Assembly Act 2012 “contains procedural provisions that are regulatory in nature. The non-compliance with those procedures does not stop a citizen from exercising his right to assemble peaceably and without arms. In other words, there is really no restriction on the right to assemble peaceably and without arms...”
What the court seems to be saying is that a citizen can choose to exercise the right to assemble peaceably and without arms without giving the required prior notice, but then has to pay the price for it.
The penalty for non-compliance is not a restriction of that right, the courts maintain. The courts have not fully appreciated that allowing a criminal sanction to operate in relation to procedural non-compliance is a de factorestriction of the right to assemble peaceably and without arms.
A freedom to assemble that causes a commission of a criminal offence cannot be said to be a “freedom”.
In the ZI Publications case, the freedom of expression of an individual Muslim, Ezra Zaid, was allowed to be circumscribed by state law which the constitution allows to regulate the personal law of a person professing the religion of Islam.
Instead of defining a restriction on a fundamental liberty narrowly, the court generously interpreted the provisions of a state religious enactment as being of sufficiently wide scope to restrict an individual’s right to freedom of expression granted by the constitution.
A wide ambit was given to the scope of “personal law”, which appears to include freedom of expression. In balancing the constitutional freedom of expression with a constitutionally-permitted regulation of the religion of Islam, the Federal Court came down in favour of the state over the individual.
In this case the offending act was not even committed by the individual himself, but by a company.
However, all concepts of separate legal personality were cast aside and the acts of the company, and of the company’s employees, were deemed the act of the individual, for whom the company was the alter ego, since the individual was both a director and majority shareholder of the company.
The fact that at the material time the book published by the company was not listed as a prohibited publication under the relevant legislation, the Printing Presses and Publications Act 1984, was not deemed to be of sufficient significance.
Ground-breaking decision set aside
Similarly, in State Government of Negri Sembilan & Ors vs Muhammad Juzaili & Others, a case involving three transgender women charged with the offence of cross-dressing in Negri Sembilan, Islamic “personal law” once again trumped fundamental liberties.
In this transgender case, and in the fifth decision, See Chee How & Anor vs Pengerusi Suruhanjaya Pilihanraya Malaysia, the courts chose however to arrive at their decision on the basis of legal procedure rather than on the substantive issues.
The Federal Court used the issue of wrong procedure to set aside the ground-breaking rights-upholding decision of the Court of Appeal in favour of the three transgender women.
In denying See Chee How and Pauls Baya leave to appeal, the Federal Court held that the arguments in the case failed to meet the threshold for the granting of leave (permission) required by either Section 96(a) or (b) of the Courts of Judicature Act 1964.
The Federal Court also denied leave on the ground that the application was academic, given that the Election Commission had already completed its constituency re-delineation processes and submitted its report to the prime minister as provided for in the constitution.
The fact that the report had not yet been placed before Parliament, and was therefore not yet acted upon, was not considered relevant.
A more detailed analysis of some of these five cases awaits the release of full written judgments and reasoning.
However, these five cases suggest the reluctance of the courts to play their proper role as guardians of the fundamental liberties of individuals.
All too easily, the courts appear prepared to subordinate the rights of the individual to that of the state, even to the extent of giving a generous interpretation to what ought to be narrowly-construed restrictions of fundamental liberties.
An active protection in favour of individual liberties does not, at this point in our journey of nationhood, seem to be the preferred flavour of the Malaysian courts.

ANDREW KHOO is co-chairperson of the Human Rights Committee of the Bar Council Malaysia. He writes here in his personal capacity.

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Monday, October 12, 2015

What does a prison for mothers with infants look like?

Babies and children living behind bars with mothers in Victorian jails alongside murderers

September 5, 2015 7:00pm
A guard watches an inmate mother put her baby into his cot.
NEARLY a dozen babies and children are living behind bars with their mothers in Victorian jails alongside infamous murderers.
The 11 children, all under five years old, are sleeping in cells with their criminal mothers in frequently overcrowded jails.
Spread between the maximum security Dame Phyllis Frost Centre in Deer Park and minimum security Tarrengower Prison near Bendigo, the children have to leave their mothers when they reach the age of five — either into the care of family or a foster carer.
The number of incarcerated children reflects the dramatic increase of inmates entering the women’s prisons over the past 10 years.
The DPFC facility houses 356 inmates including some of Australia’s most notorious criminals, including gangland matriarch Judy Moran, 71, child killer Donna Fitchett, 56, and student attacker Sarah Cheney, 31.
Critics have been outspoken about inmates raising children in jails, saying it’s not in the best interest of a child to be tied to mothers with deep-rooted criminal problems.
              However, Geelong-based psychologist Helen Barnacle, 61, disagrees, saying the Mothers and               Children Program should be expanded to accommodate more children to be with their mothers               in jail.

She also believes fathers in minimum security jails in Victoria should be allowed to apply for the same right.
IT’S a bitter sweet scene in the grassed exercise yards of Victoria’s two women’s prisons when the children come out to play.
They giggle, they run. They demand everyone and anyone join in.
Piggy backs are their favourite.
“Again, again,” the toddlers squeal, tugging on the prison-issue green trousers of their assembled “aunties” meandering around chatting during their morning exercise.
Apart from the games and the usual, much-enjoyed attention they are just happy to be racing around outside.
In the spring sunlight, gulping in the fresh air.
Freedom, of sorts.
For these young children spend each day of their young lives locked up behind the alarmed, barbed wire walls of prison, alongside those being punished for serious crime.

A prisoner walks her son around the Dame Phyllis Frost Centre grounds.

They are the innocent ones.
Their mothers and other inmates? Not so much.
Drug offences. Fraud. Grievous bodily harm. Manslaughter. Murder.
All of the above.
Many of the children have literally been born into Victoria’s corrections system, going straight from a guarded hospital delivery room at Melbourne’s St. Vincent’s Hospital to a basic cot in an austere, slate-grey jail cell with their mother far out of the city.
A world away from our trendy cafes where tribes of glossy carefree mums gather, arriving with their offspring in $1600 Bugaboo strollers and ordering soy lattes without a care for the price tag.

A prisoner with her baby son in her cell at the Dame Phyllis Frost Centre.

Sunday Herald Sun investigation has uncovered the daily regimen for the 11 children and babies currently doing time with their inmate mothers across the state.
All are aged between a few months and just under five years old.
The children who live behind bars at Victoria’s two women’s prisons, whose populations have exploded over the past ten years, have little experience of the outside world.
At least half spend their lives in the maximum security Dame Phyllis Frost Centre (DPFC) in Deer Park, which currently has 359 inmates and for nearly 20 years has been dogged by self-harming, suicide attempts and frequent scandal.
Here, the children are growing up amid some seriously infamous Melbourne lady folk.
These include gangland matriarch Judy Moran, 71; swinging killer Bernadette Denny, 47; and pensioner murderer Rachel Hegerty, 38, to name just a few.
All are serving sentences at DPFC for hideously violent murders which shocked Victoria.
The other children live with their mothers (and far less dangerous comrades) in Tarrengower, a minimum security facility near Bendigo which currently houses 51.
Jail life for the children, along with the endless regimen of rules, the noise and the countless locked internal doors, is their home.
And for many, always has been.
They will be granted freedom of course.
But not until they reach school age.
A former prisoner has described in detail to the Sunday Herald Sun the devastating moment when the child finally leaves — a day that justice sources say infact engulfs the entire prison with sadness.
Helen Barnacle, 61, who fought for the rules to be changed to keep her baby daughter, Alice, now 35, in jail, has told how she felt “suicidal” as she handed over her child at the age of four.
“I just remember walking, carrying her in my arms and walking down to the gate knowing that I was going to hand her over to my brother,” Helen says.
“I didn’t think it was okay to let her see me crying and so upset about being separated from her.”
Sources are keen to stress however, that the decision to allow a child to live with their criminal mother being punished in jail isn’t taken lightly.
All incarcerated mothers — either on remand or serving sentences — in the two women’s prisons are eligible to apply to the Mothers and Children Program to care for their young children.
Unsurprisingly, conditions for approval are extremely strict; the final decision rests with the Correctional Services Commissioner following a number of detailed reports from justice and welfare agencies including Child Protection and the Quality and Compliance Unit.

A guard at Dame Phyllis Frost Centre oversees a prisoner with her baby son in a special unit.

“Everything is looked into including any history of harm and the parenting abilities of the mother,” a source says.
“They don’t just let the children in for anyone that asks — what is best for the child is always the priority.”
Often, corrections management have to make extremely tough — and often heartbreaking — decisions.
“Because of frequent overcrowding there are always mothers arriving into the jails wanting their children to be with them,” the source says.
“But if they are considered a danger to their child because of drug addiction or a violent past, or if their partner or a grandparent is considered a more suitable primary carer, the baby or child is not allowed to live in jail with them.”
If there is a lack of family support the children are put into foster care.
“There are a lot of very sad mothers without their children in jail,” the source adds.
But where possible, the mothers are always given access to their children in some other form.
They include a residential visits program at Tarrengower which allows eligible mothers to have children stay with them for up to three days.
At the same prison there is also a school holiday program where children under 16 can stay for up to four days.
And both Tarrengower and DPFC allow for weekly visits between a mother and child.
The most highly complicated situations unfold however, when prisoners arrive already pregnant.
A corrections source reveals how officers were assigned to guard the door of a delivery room on a shift rotation in recent years while a DPFC inmate gave birth.
While the child was delivered safely, what happened next shocked the normally hardened guards to the core.
“The mother was so addicted to heroin when she came into jail she had been taking high levels of methadone,” the source says.
“So as a result as soon as the baby was born it started to go into withdrawal. The screams from the newborn were nothing like they had ever heard from other babies.
“It was horrendous apparently. They were very distressed because they could hear it was in terrible pain.”
In distressing scenes, the mother steadfastly refused to give doctors permission to give the baby even a tiny amount of methadone to ease the symptoms.
A dose which would gradually have been reduced to nil over several months.
“She kept screaming that she didn’t want the baby to end up like an addict like her.
“It was understandable, but the baby was going through agonising cold turkey just like any other adult addict would be.”
For those mothers that do win the right to keep their children with them, in DPFC there is an allocated mother and baby unit.

A prisoner with her baby son in the Dame Phyllis Frost Centre mother and baby unit.

There are eight cells, where the mothers sleep on a single bed with their child in a cot or mattress alongside them, leading off a communal lounge and kitchen area, complete with laundry and a TV.

The kitchen area in the Dame Phyllis Frost Centre’s mother and baby unit.

During the hours of 7.30pm and 7.30am the main door is bolted but the cell doors are not locked, leaving the women to feed and settle their children as a group.
“They each are given a weekly allowance so they prepare their food together in the kitchen,” a source says.
“The kids generally enjoy cereal for breakfast and pasta dinners just like any other Australian kids.”
Each baby and child is also given an allowance so that the mother can purchase nappies, creams and baby food from a small hatch which serves as a prison shop during the day.
During part of the day the women are free to leave their unit and push their strollers around to visit friends in other units or into the garden or “town square”, as it is dubbed by inmates and staff.
“The children run around on the grass and get heaps of attention, they lighten the whole mood,” a source says.
“With so many of the female prisoners missing their own children, they are totally spoiled and adored wherever they go.
“Prisoners read to them, knit them jumpers and give them chocolate from the shop.”
At Tarrengower, the children attend weekly music and art classes.
There are also weekly programs for the mothers.
While the outside play area at DPFC has been closed for two years after a shade sail broke, there is an inside soft play area.

Children are able to draw and do other normal activities in prison.

An in-ground outdoor pool in the grounds of DPFC is out of bounds for the young inmates however.
“It isn’t life guarded so they are not allowed,” a source says.
In recent years a female prisoner farcically leapt into the pool after being chased by guards due to bad behaviour.
“She started swimming in circles and causing a scene which was pretty amusing, but it’s probably for the best that the children stay out anyway incase that happens again,” a source said.
Most importantly, sources say they have never known an occasion at either prison where a child has been injured or harmed by inmates.
“They are so respected and cared for by both staff and inmates,” the source says.
“If any commotion kicks off they would be withdrawn by staff and their mothers instinctively back off with them anyway.”
The only common prison element they can’t be protected from is the noise and frequent verbal arguments among the prisoners.
“But then the fact is they would probably be in a similar situation if they were on the outside living in a big public housing block in the city,” a source says.
The children also have to endure the repetitive regimen of prison life.

Prison can be a stark, cold and sterile place at times for the children of inmates.

Most notably the head counts — or musters as they are dubbed inside — which happen four times a day.
An announcement comes over the loud speakers at random, unpredictable times saying: “Attention DPFC — the count will be in ten minutes. Please be by your cell door with your ID and your TVs turned off.”
There are measures in place that if a baby or child is missing at the count there would be a re-count.
And if the infant was still missing all units and prisoners would go into lockdown under the child was found.
But so far a need for that emergency plan to be enacted has, thankfully, never arisen.
“The older toddlers are so institutionalised they run to their mother’s side by the cell and practically stand to attention when they hear the familiar announcement over the loud speakers,” a source says.
“That’s sad to see because you wonder how they will find life on the outside.”

Some experts question whether jail life is a healthy environment for babies, toddlers and young children.

Each mother with their child with them in jail is allowed to nominate one “carer” from among the other female criminals inside.
The CVs of the applicants might be a little blemished, to say the least.
But, naturally, there is a screening process and the cherished role of carer in the jail is apparently taken very seriously by the chosen few.
Joyous distractions like this are at a minimum of course.
The carers look after the child when the mother has a medical appointment or a court appearance — or simply when she needs a break.
“Like any other mum sometimes they just need time out from the child and a bit of peace,” the source says.
Sometimes, a child will be released into the care of their father or relative on the outside for a short time.
And when they turn four, authorities take them to outside kindergartens one or two days a week to start their integration with ordinary children.
While the prisoners adore the children there are some inmates at DPFC in particular that the infants will never come into contact with.
And for good reason.
Frequently extremely violent to staff, Sarah Jane Cheney, 31 — the woman jailed for eight years for the stabbing of a La Trobe University student — is thankfully nearly always kept in isolation.
And Donna Fitchett, 56, the Melbourne mother twice convicted of murdering her two sons, is also kept in isolation away from any chance of coming into contact with babies or children.
She’s not exactly the mothering type you’d want close by.
The former nurse drugged and murdered sons Thomas, 11, and Matthew, 9, at their Balwyn North home in September 2005.
After an appeal she was jailed for 27 years in 2010.
“The children living in the prison will never get anywhere near these prisoners, the staff make sure of it,” a source says.

Grey walls and barb-wire fences surround the mums and their children at the Dame Phyllis Frost Centre.

But these safety measures aren’t enough for some critics who argue that the fact the mothers have even entered prison in the first place demonstrates they have serious problems.
Some have even suggested it is a selfish move akin to child abuse and not in the best interests of the child.
“Research suggests that this is just not a good gamble for these children to tie their fate to these women who have such deep personal struggles,” US law professor James Dwyer argues.
However, Helen Barnacle strongly disagrees.
Helen was five months pregnant when she was jailed for drug offences in 1979 and sent to Victoria’s Fairlea Prison, which has since closed.
She credits her strong relationship with daughter Alice due to her being allowed to eventually stay with her in jail.
“From the moment she was born I felt overjoyed,” Helen told the Sunday Herald Sun.
“It was probably the first time perhaps that I felt real love and that I had a proper role in life.
“But when she turned one I had to hand her over which was utterly devastating. I was so distraught I literally couldn’t speak, I felt suicidal. I knew if I lost the early years with my child we would never have a proper relationship.
“It wasn’t just about me, it was about Alice’s future. She needed her mother.”
The former heroin addict, who is now a well-respected psychologist living near Geelong, appealed and rules were changed.
As result children in Victoria could stay with their mothers in prison until the age of four.
Alice herself remembers a happy time, especially the singalongs with her mother and the other inmates.
“I had about 50 women all loving me and I was always going off to dinner with someone and trying to get chocolate off someone else and just having fun,” she says.
“I just remember fun things.”

Helen Barnacle, 61, and daughter Alice, 35. Helen fought for the right to keep baby Alice in Fairlea Prison until she was four years old.

Helen was left grief-stricken when she had to hand over Alice at the age of four to her brother Ron to care for until she was released.
“I got to the gate handed her through and Ron took her, and then turned around and walked off. I’ll never forget her tiny hand waving at me as she was carried away.”
Helen was released four years later from prison on the November 24, 1987, just before her 34th birthday.
“The best thing that happened that day was when I went to Ali’s school and I just remember her looking around at all the mums and spotting me and this big smile on her face and we just hugged each other,” Helen says.
“I was afraid to let her go but then I realised I would never be forced to let her go again.”
Today, the age children have to leave is five and staff and fellow prisoners do their best to make it a positive experience.
“They usually put on a farewell party with a BBQ, cake and balloons on the day the child goes, so they feel like it’s a celebration” a source says.
But it’s all a facade.
In truth, everyone is devastated.
“A whole feeling of doom comes over the whole prison in the days leading up to a child leaving,” a source says.
“Everyone is attached to them by the end, even the guards.”
But for the mother herself of course, the emotional hangover of their child leaving for the world outside ahead of their own release is primal and unrelenting.
“It’s the worst feeling I’ve ever experienced,” Helen says.
“I didn’t want her to see me cry, but once she was gone, that’s all I ever did until I saw her again.”
Twitter: @luciemorrismarr