Archive for the ‘Federal Constitution’ Category

Hindraf should be given the permit to gather on Sunday 25 Nov

November 23, 2007
The police was wrong to reject the application of permit for BERSIH’s Nov 10 Peaceful People’s Gathering. They now again made the same mistake by rejecting the application by Hindraf for the coming Sunday rally. The police must respect the right of assembly enshrined in our Federal Constitution and grant a permit to Hindraf for the rally at the British High Commission. The warning of stern actions will be taken on protesters was uncalled for.The PM should interfere immediately to grant a permit for the Sunday rally. Hindraf has the right to hold the peaceful rally to present its memo to the British High Commissioner.I understand that the Indian community are now determined to present their views to the BN government and a responsible government must be prepared to listen to those views any time, any where.I will be there as an observer on Sunday. C U There!

 Hindraf rally: Cops warn of ‘stern action’

Andrew Ong
Nov 22, 07 5:47pm
Malaysiakini
The police warning is predictable – Kuala Lumpur CPO Zulhasnan Najib Baharudin issued his first public warning against a planned rally at the British High Commission on Sunday, organised by the Hindu Rights Action Force (Hindraf).
He warned that the planned rally is illegal and that the public should stay away.
“I will take stern action (against participants),” Zulhasnan told a packed press conference at the Kuala Lumpur police contingent headquarters today.Zulhasnan said no police permit has been issued for the event and that those who attend would be violating Section 27 of the Police Act 1967.Under the law, offenders can be fined between RM2,000 and RM10,000 and are also liable to a jail term not exceeding one year.

Zulhasnan said Hindraf had applied for a police permit but that this was rejected.

“I have received the appeal against the rejection but I rejected it after studying the matter,” he said.

On the reasons for the rejection, Zulhasnan said the police have received information that “criminal acts” such as “fights” and “arguments” would occur during the rally.

Crime prevention

The police chief confirmed that numerous roadblocks have been erected around the city to prevent rally participants from entering.

“We believe they will be wearing orange shirts,” he said in reply to a question.

After the press conference, however, Zulhasnan said the roadblocks were part of a “crime prevention” exercise.

Zulhasnan skirted a question as to whether the police would be using water cannon and tear gas to disperse the crowd.

Meanwhile, Inspector-General of Police Musa Hassan said the police had received information that gangsters would be used during the rally that would disturb the peace.

“These illegal street rallies and demonstrations would surely lead to aggression and these acts can affect the safety and economy of the country,” he said in a statement.

Hindraf plans to gather 10,000 Indians to hand a memorandum addressed to the British Queen to support a class-action suit against Her Majesty’s government for bringing Indians to Malaysia as indentured labourers and exploiting them for 150 years.

A total of US$4 trillion (RM14 trillion) is being sought for US$2 million for every Indian residing in Malaysia.

Watch the 5-min video heremkinitv_client(‘hindrafPolice_2211.wmv’);

Hindraf rally – police stop over-reacting, dismantle roadblocks and issue permit

/ Lim Kit Siang

November 23rd, 2007 « 3 Comments »

The police should not repeat their over-reaction and high-handed action on Nov. 10 over the peaceful 40,000-people Bersih gathering to hand over a petition to the Yang di Pertuan Agong for electoral reforms to ensure free, fair and clean elections and should immediately dismantle the roadblocks creating massive jams in Kuala Lumpur and the Klang Valley since yesterday.

The massive Nov. 10 traffic gridlock creating massive congestions in Kuala Lumpur and Klang Valley were largely the creation of the police and could have been avoided or ameliorated considerably with enlightened and sensitive police handling of peaceful gatherings by citizens exercising their fundamental constitutional rights to get their voices heard in a meaningful democracy.

If the Police had issued a police permit for the Bersih peaceful gathering on Nov. 10, demonstrating greater sensitivity and respect for human rights guaranteed in the Malaysian Constitution as recommended by the Dzaiddin Royal Police Commission 30 months ago, all legitimate concerns would have been met – the concerns of the police and government with regard to law and order and the concerns of aggrieved citizenry to petition the Yang di Pertuan Agong for an end to electoral abuses.

For the Hindraf rally on Sunday, the Police has not only refused to learn any lesson to respect the human rights of Malaysians to peaceful assembly, but has decided even earlier to impose roadblocks – starting since yesterday on various roads and expressways in the Klang Valley.

The Custodian of the Constitution

November 13, 2007

 

The Custodian of the Constitution  

By Yellow Walker  

The PM and his super cronies after 50 years, had failed to realise that the question that to “drag the King into politics does not arise”. When the King our Supreme Sovereign Head does not get himself in daily politics or a member of the executive, it does not mean that his Majesty is totally above politics and is just a fiqure head of the country. 

In a democratic country with a constitutional monarchy like Malaysia, we have the Monarchy, Executive, Judiciary and Legislature. Each is independent of the other. If everything runs smoothly, the Royalty stays at his Palace, and is happy that his subjects are happy. The economy turns, majority of his Royal subjects has a job and  development is in full swing. The job of the King is to oversee that the country is running in proper order. His Majesty has the constitutional right to intervene today because everything is wrong today.  

The King is the people’s TRUSTEE. The Trustee has to act constitutionally today before the country go to the rocks! His Majesty need not take sides. The Royalty must see that there is fair play. The King is there to PROTECT the Constitution from being abused. He is the CUSTODIAN of the Constitution. Please don’t insult the King!  

The level of the playing field is tilted in favour of the powers that be. They even shift the position of the goalpost to whatever position they like! 

Everything is wrong today! One cannot even be safe inside our house. 300,000 graduates are jobless, Parliament leaks, a former railway gatekeeper’s house is bigger than a Division One Officer, the police is divided, Team A accusing Team B, we a net exporter of gas and petroleum  yet we have to pay more for gas and petroleum instead of paying less when the prices rises, the top cronies are enjoying themselves as  patrons of Petronas Philhamonic Orchestra, patients suffering unnecessarily instead of getting cured by the hospitals, everywhere you walk you see foreigners as much as you see your fellow citizens, government purchases having a free for all, no tenders being called as cronies lined up to secure projects at exorbitant prices, a 4.6 billion free trade zone as a white elephant collecting dusts, a congested bus terminal built 33 years ago and its next door – a dilapidated half constructed building, breeding anopheles and aedes mosquitoes, prices of houses and cars beyond the reach of  the mid income family, electricity prices increase by Tenaga although they make billions, buying screwdrivers at exorbitant prices, banks of a certain race taken over by another bunch of cronies in the pretence of having less banks but bigger banks to compete overseas, companies are asked to employ their staff in relation to the country’s population ratio but their own GLCs, universities full of their cronies such that they reflect the superpower of the cronies and pages and pages to be filled—-endless.

The King must step in to stop the rot! Enough is enough. 50 years of mismanagement is sufficient! The most important underhand tactic is the Election Commission reporting to the BN. Overnight they increase the Ipoh Timor Constituency by 8500 voters and then claim that it is their absolute right! Before the election you will already know who the winner MP is. Bukit Bintang has no army camp but got postal voters by the army. Therefore the Election Commission must report to an independent body and NOT to the BN! The Election Commission keeps the BN in perpetual power!    

The march by BERSIH is NOT a demonstration. During Prophet Mohamed Birthday the Muslims march. During Wesak the Buddhists march. During Deepavali the Indians march. During Saint Anne Festival the Christians march. All religions and groupings march. So why can’t BERSIH march? The powers that be, make it illegal. Gambling is illegal. But gambling at the Genting Highlands is LEGAL. Buying 4 digits is illegal. But buying 4 digit from Magnum, 3D and Toto is LEGAL. We want to tell AAB that we are not born yesterday! The shops at Masjid Jamek and Jalan Tuanku Abdul Rahman were doing a roaring business. Without provocation water cannons and teargas were fired. Hell broke loose. The shops have to close. So who is to blame? Buses were turned back at the highways. The commuter trains stop running. Road blocks were set up. The police were not looking for weapons. They were looking for YELLOW shirts! What is wrong with yellow shirts? Are yellow shirts  weapons? Why don’t the police stop the Buddhist monks from wearing YELLOW. SO WHO’S THE CULPRITS OF THE TRAFFIC JAMS? It is a deliberate attempt by the police to stop the march!  

BERSIH has declared that yellow is the colour of protest; it’s also the colour of press freedom. Wearing yellow also shows our love for the Rulers. The police has insulted the Royalties.  What is wrong if the people want to hand his Majesty a memorandum? You mean we have to send by the unreliable post office? It is just a memorandum on the demand for a clean and fair electoral system! What is the big fuss?

Lina Joy: What is freedom of religion?

June 1, 2007
I find Nathaniel Tan’s letter to editor (Malaysiakini) useful in understanding the issue of Lina Joy. I am reproducing it here for further discussion.I have, in my hands, a few cases of Muslim converts who wish to return to their previous religion. In that sense, their cases are slightly different from Lina who has renounced Islam ( a Malay who’s born as a Muslim). In my mind, I think they should be allowed to go back to their original religion.Even for Lina Joy, I really do not see the logic and reason to force her to stay as a Muslim. It’s pointless to keep a Muslim who has changed to other faith in his or her heart. I hold the the view that Lina should proceed to Syariah Courts to seek the permission to leave Islam. But to resolve cases similar to Lina in future, the Government must reform the Islam institutions in the country so that these institutions could handle such cases professionally. We do not need the courts to decide on conversion of religion, whether it’s Islam or other religions.But I do understand the strong feelings of some of my Muslim brothers and sisters. I know exactly where they were coming from.To them, they cannot accept a Muslim to leave Islam more of the fear factor (but you may argue that their fear was unfounded)rather than holding the view that Islam is a more superior religion. Yes, I do know that there were some who hold an extreme view that certain religion is more superior than other religion. But we do not have to agree with them.

I wish to tell all my Muslim brothers and sisters that there ‘s really no point to keep a Muslim if he or she has decided to embrace another religion.

My reasons are simply these:

1. All religions share the same root. We are all children of Abraham. All religions is ONE.

2. There’s no such thing as a superior religion.

3.Other Muslims would not leave Islam just because Lina Joy was allowed to leave Islam.

4. Freedom of religion should include freedom to join and freedom to leave a particular religion.

5.Many have left Islam in the past but more have embraced Islam at the same time.

6.Like other religions, Islam is a good religion.

7. People who have left Islam without condemning it should not be seen as apostles.

8. Only people who condemn the religion (Muslim or Non-Muslim) could be considered as apostles (of Islam) and this must not be allowed in this country. No one should condemn or belittle other’s religion.

9. Malaysia, as a multi-religious society, needs freedom of religion for real harmony and peace among the peoples of different faith.

The Prime Minister’s response on the Lina Joy’s case is pathetic. He just want to wash his hands and pretend that he has got nothing to do with it. He has once again failed to carry out his duty and responsibility as the prime minister of this country.

I hope bloggers could also give their views on this important issue. Please leave your comments with Colour-blind.

BTW, DAP will be holding a forum to discuss the case on 7 June 2007 in Petaling Jaya. Watch this blog closely for further details.

Lina Joy: Let’s not leap to polemics

Nathaniel Tan
May 31, 07 2:58pm
Malaysiakini
I refer to the malaysiakini report No joy for Lina.We can expect a lot of emotional responses to the recent ruling involving Lina Joy. In navigating the understandable amount of passion surrounding this issue, it is perhaps worth ensuring that the details of this judgement are properly understood for what they are.Many are likely to say that this is the death of freedom in religion in Malaysia, because Lina Joy was denied of her right to convert. A closer look reveals a slightly more textured landscape. By way of brief chronology:

  • Lina was a Muslim who renounced Islam.
  • She went to the National Registration Department (NRD) to have the religion on her MyKad and on record changed.
  • The NRD said: ‘For us to change the religion on your MyKad, we need a certificate from the Syariah Court stating that you have indeed renounced Islam’.
  • Yesterday, the Federal Court upheld the ruling of the NRD.

It is important to realise that technically and theoretically (if nothing else), the road is still open for Lina to go to the Syariah courts, apply for recognition of her decision to renounce Islam, obtain it and live happily ever after.

Some make the argument, clearly not entirely without merit, that since Lina has renounced Islam, she should not in any way, shape or form have to submit herself to the jurisdiction of the Syariah under any circumstances as this would be subjecting a non-Muslim to Muslim laws.

Others yet (again, perhaps understandably) are extremely cynical about the chances of the Syariah courts actually granting such a controversial recognition of apostasy. The hardcore religious, after all, are likely to fear the ripple effect this may cause – a wave of mass apostasy being the biggest fear (founded or unfounded) of all.

Some might even see a political angle to this – where the ruling powers refuse to take any steps that would cost them Malay votes in a time where the non-Malay votes are swinging strongly against the government.

A ‘miracle’ decision by the Syariah court – should Lina decide to apply there – to allow her renunciation might be a relatively successful compromise. It would appease some of the more religious parties who hold the Syariah in such high esteem, and espouse its ability to dispense justice fairly to non-Muslims (as in their much touted case of Nyonya Tahir), while essentially granting Lina the fundamental right to convert.

In any case, it would be extremely mature of us to see the judgement for what it is and not be too quick to condemn it for what it is not (or what it isn’t yet). If we are to criticise it, which is our inherent right, let us be clear on what we are debating, rather than leap to polemics.

PM: Don’t be emotional over Joy decision
May 31, 07 11:31pm Malaysiakini
Prime Minister Abdullah Ahmad Badawi today urged for an open mind and rational thinking from everyone over the recent decision in Lina Joy’s case.“If we allow ourselves to be overcome by emotion, we will begin to have all kinds of thoughts; we will have suspicions about this and that,” he was quoted as saying in Bernama.

He also said that his government had played no role or brought any influence on the decision of the Federal Court.

“That is the decision of the court; I don’t question them,” he said after chairing an Umno Supreme Council meeting today.

Yesterday, the highest court in the country ruled on a 2-1 majority to dismiss Lina’s appeal to to have the word “Islam” removed from her identity card.

Lina, 43, had claimed to have renounced Islam to embrace Christianity 17 years ago.

The court however ruled that Lina had to obtain a certificate of apostasy from the Syariah Court before the National Registration Department could drop the word “Islam” from her identity card.

Chief Justice Ahmad Fairuz Sheikh Abdul Halim and Federal Court Judge Alauddin Mohd Sherif dismissed her appeal while Chief Judge of Sabah and Sarawak Richard Malanjum dissented.

No religious divide

Asked if the Federal Court decision would cause a religious divide in the country, Abdullah said: “I don’t think there is a divide although the discussion on religion becomes more widespread.”

Bernama also reported that at the press conference, Abdullah also dismissed a suggestion from a foreign journalist that Islamic law was now above the Federal Constitution in the country.

“There is no such thing (of Islamic law being above the Federal Constitution). The Federal Constitution is the Federal Constitution.

“There is a set of laws we have to follow. It is something that we have to follow, that’s all,” he said.

Raja Nazrin: Be colour-blind

April 6, 2007
We like to say that our youth are the future of this country, but then we proceed to ignore or marginalise them. We want our future generations to be able to think and act wisely, but then we do not give them sufficient opportunities to do so.” –Raja Nazrin

 In recent times, it has become usual to try and place the blame for the disintegrating state of world affairs on the doorstep of religion. This is a misunderstanding of the first order. Religion is not the cause of societal dystrophy; it is the antidote. It is a social stabiliser that allows believers to reconnect to values that are fast being lost in today’s ever more materialistic and self-centred world.” – Raja Nazrin

“Malaysians of all races, religions, and geographic locations need to believe beyond a shadow of a doubt that they have a place under the Malaysian sun. Only when each citizen believes that he or she has a common home and is working towards a common destiny, will he or she make the sacrifices needed for the long haul.”- Raja Nazrin

“I hope we will do our best to guard against cynicism and hopelessness. And I hope we will all stay the course. Failure, may I remind you all, is a costly option.”- Raja Nazrin

IMO, the speech delivered by Raja Nazrin Shah for young Malaysians should be read by all Malaysians, from an ordinary citizen right up to the prime minister of this country.

I will try my best to translate the speech into Chinese and Malay ( and get an expert to do it in Tamil). Watch this blog.

I thank the Sun for publishing the full text of his speech.

EXTRA! :: Cover Stories – the Sun 6 March 2007

Raja Nazrin: Be colour-blind
Malaysians of all races and religions have a place in this country. Sharing a common destiny, we must put our shoulder to the yoke and work to build the nation, in particular preserving the national unity we have enjoyed through 50 years of nationhood. Given our plural composition, it is a difficult task but it must be done for failure would prove too costly. The Raja Muda of Perak, Raja Nazrin Shah, tells of the ways to do this in his keynote address at the Young Malaysians’ Roundtable Discussion on National Unity and Development on Tuesday. Here is the full text of his speech.

Raja Nazrin is greeted by Malaysian Bar Council
president Ambiga Sreenevasan on arrival at the Bar
Council premises in Kuala Lumper for the function

It is my pleasure to be here to deliver the keynote address at this Roundtable Discussion on National Unity and Development in Malaysia: Challenges and Prospects for Nation Building. I am always happy to take part in an event where there are many young informed Malaysians. I find that this is time well spent. Not only does it give me a chance to share my thoughts, but it also lets me do a bit of opinion research among the younger generation.

We like to say that our youth are the future of this country, but then we proceed to ignore or marginalise them. We want our future generations to be able to think and act wisely, but then we do not give them sufficient opportunities to do so.

In my view, this is not a good way to prepare those who will take our place. If the young are to be good leaders and citizens, they must be exposed to more than just abstract concepts. Even those nation states which have failed miserably have had great political ideals.

I believe that good and upright leadership must be demonstrated. It has to be both taught and observed at work. Then, those who are found to be able, must be mentored by those who are capable. In this way, success can be learned and replicated.

Finally, the young must be given responsibilities they can handle. They should be allowed to make mistakes along the way as part of their overall learning process. If we do these things, our actions will echo loudly into the future.

My address this morning is on the challenges and prospects of nation-building, a topic that is of the greatest and gravest importance. Nation-building is essential to national unity which lies at the heart of what this country was, is and will be.

With the passage of time, it seems that we are starting to forget this and it is imperative that we do not. In the time available, I hope to say enough to provide some fuel for the discussions to follow. It is my earnest wish that you will gain some further perspectives on the nature of nation- building and that you will also deliberate on specific actionable ways to further it in this country.

Confucius insisted that language must be properly used if things are to get done, if justice is not to go astray, and if people are not to “stand about in helpless confusion”. He disapproved of those who misused words to hide their true intentions and actions.

So what exactly is nation-building? Not surprisingly, there are many definitions, some which differ by a little and others by quite a lot. In his book, The Making of a Nation, for example, Prof Cheah Boon Kheng defined it as “both economic progress and socio-political integration of a nation, that is prosperity and national unity”.

This captures what are hopefully the two end-results of nation building, but it makes no mention of its nature and process. I prefer the more common understanding, which is that it is the use of state power across different dimensions to ensure that a country is politically stable and viable in the long term. These dimensions include ethnicity and religion.

As a brief footnote, it should be noted that nation-building is a heated and even hated notion in some parts of the world. The main reasons for this are, first, that it is taking place in the midst of great domestic turmoil and, second, that it is primarily initiated and managed by foreign powers.

Trying to cobble a functioning state by papering over deep social and political rifts is, of course, easier said than done. History has shown us, time and again, that it is much easier to break down, rather than build up, nations.

In the case of Malaysia, nation- building has occurred in generally peaceful circumstances. It was not imposed by another country. And it is undertaken mainly by collective choice rather than compulsion.

The fact that we have been able to forge a nation without resorting to the rule of the gun has made us something of a rarity and a case to be studied, if not emulated. It has allowed a relatively effective system of governance to develop. Our track record in development and resolving problems such as illiteracy, poverty and poor health has been good.

There is, of course, much more that can be done. Our institutions of governance are far from perfect and quality improvements will probably occupy us for at least the next 50 years, if not longer. Nevertheless, for all the criticisms that have been made, it is only common sense that we could not have survived, let alone prosper, these last 50 years if government institutions had not been responsive or effective.

So, what are the central challenges to nation-building going forward? Let me speak first more generally about the world, and then move specifically to Malaysia.

To my mind, there are many challenges, but one that stands out most is that of having to balance the need for change with that of continuity.

Globalisation, in particular, has unleashed sweeping economic, political, social and cultural transformations that have weakened national institutions, values and norms. It is as if all the boats on the ocean had suddenly lost their anchors, rudders and compasses overnight.

Naturally, this has produced a strong reaction in the form of a desire to preserve identity, character and tradition. These are among the strongest motivations known to mankind and have been at the foreground or background of practically every conflict that has ever been waged. Add to this, a deep sense of deprivation, powerlessness and injustice, both real and imagined, and the tension between change and continuity mounts greatly.

Managing change on a national level is never easy, and certainly not on the scale and speed that we are witnessing. Multi-ethnic countries have to be especially watchful, and particularly if they have a weak sense of national collective identity.

In the absence of a strong binding nationalism, they are prone to polarisation and competition along ethno-religious lines. The state, which may well start out by being a relatively honest broker, can become increasingly pressured to act in ways that favour the interests of one group over another.

If the pendulum swings too far in one direction, dissatisfaction and frustrations will inevitably result. These can be expressed in ways that range from passive non-cooperation to active opposition and even violent conflict. To a large extent, this has led to the fragmentation of states.

Countries need to recognise the larger macro forces at work and understand their implications. They have to engage creatively to ensure that there are sufficient investments in social capital and cohesion. They must create and capitalise on cooperative systems within societies.

In recent times, it has become usual to try and place the blame for the disintegrating state of world affairs on the doorstep of religion. This is a misunderstanding of the first order. Religion is not the cause of societal dystrophy; it is the antidote. It is a social stabiliser that allows believers to reconnect to values that are fast being lost in today’s ever more materialistic and self-centred world.

What does Malaysia have to do to ensure that it continues to be successful at nation-building? Psychologists say that our short-term memory can only hold seven items. Let me outline seven guidelines that I think will have to be borne in mind in future nation-building efforts.

First, Malaysians of all races, religions, and geographic locations need to believe beyond a shadow of a doubt that they have a place under the Malaysian sun. Only when each citizen believes that he or she has a common home and is working towards a common destiny, will he or she make the sacrifices needed for the long haul.

In Malaysia, the Federal Constitution, the Rukun Negara and Vision 2020 encapsulate the rights, hopes and aspirations of the population in a way that no other documents do. The integrity of these documents must be defended and promoted, especially the first.

Second, when we seek solutions to problems in nation-building, we must be careful not to assume away problems. Nation- building is required precisely because there are stark differences within society. If we all walked, talked and thought the same, it would probably not be needed.

There will therefore be chauvinistic groups in this country, just as there are in others. They will fight the idea of national unity, block social change and try to be politically dominant. The existence of these groups, however, does not mean that nation-building is a futile exercise.

It does mean that we must be prepared to negotiate our way through and around these differences. We can, for example, create social movements that aim to enlighten and dissuade popular support being given to them.

Third, nation-building requires accommodation and compromise. In our haste to be prescriptive, we should not be so idealistic that we are incapable of also being practical. We should not allow perfection to be the enemy of the good. Yes, we should seek the best solutions and expect the highest standards of performance.

But we should also be prepared to sacrifice some part of our positions for the good of the whole. The virtues of pure self-interest are largely a myth. What seems to be a reality is that individuals end up worse off when they act out of self-interest, as opposed to acting in their collective group interests.

Fourth, if nation-building is to be successful, enforced solutions must be avoided. Nation-building is effectively rendered null and void by coercion or the threat of violence. Might cannot, and must not, be shown to be right. If solutions cannot be found within the political and social structures, there will be a strong temptation to resort to illegitimate ways and means.

Fifth, nation-building occurs when society is open, tolerant and forward-looking. So important are these values that they are embedded in Vision 2020’s nine strategic challenges, as are those of mature democracy, caring society and innovation. Only by being inclusive and participative can the various sectors of our society be productively engaged. It follows that all forms of extremism, chauvinism, racism and isolationism must be guarded against. They must be soundly sanctioned socially, politically and, if necessary, also legally.

Sixth, nation-building is a process rather than an outcome. When Malaysia started off 50 years ago, there were no examples to study. There were no manuals to follow. Mistakes were made and, to a greater or lesser extent, lessons have been learned.

While a sense of impatience is perhaps fully understandable, nation-building takes place over a period of time and only with persistence. Where there is no trust, trust has to be built. Where there is no cooperative network, one has to be established. Building on layers of foundation is the only way to ensure that the process is solid and sustainable.

Seventh, the political, social and economic incentives must reward good behaviour and penalise bad. I know that this statement is virtually self-evident, but it is a fact that many countries are as likely to punish good behaviour as to reward it. After all, if there are benefits for corruption, then there is a real cost to being honest. The incentives for building up a nation must be greater and more compelling than breaking it down. The price of racial and cultural intolerance must be made prohibitively high.

I believe fostering national unity is the responsibility of every Malaysian. However, schools, institutions of higher learning and sports centres have a very special role to play. This is because the sense of national unity is best inculcated in the young.

Through textbooks, sports and interaction, educators should eliminate ethnic stereotypes. Through the imaginative teaching of the history of Islamic, Chinese and Indian civilisation, educators could foster greater understanding among different ethnic groups.

It is said that it takes a village to raise a child. I believe this is true. To me, the village comprises three main institutions – family, school and community.

From birth, we should be taught to respect and honour each other’s culture and heritage. Learning to interact with others is part of this process. Playing with children of other races on the playground and in friends’ homes, we learn to go beyond the colour lines early in life. In school we should be taught about other cultures and beliefs under the same roof as others of different ethnic groups – once again cutting through the colour lines.

I am aware that there are many Malaysians who are deeply troubled at the state of national unity in this country. What I have tried to do today is disabuse you of the notion that there are any “quick fix” solutions in nation-building.

If you look closely enough at any country, even those that are regarded today as highly successful, such as Japan, you will find there have been episodes in their past where events were very tenuous.

I hope we will do our best to guard against cynicism and hopelessness. And I hope we will all stay the course. Failure, may I remind you all, is a costly option.


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The voice of conscience from the Crown Prince of Perak

April 5, 2007

Raja Dr Nazrin Shah, the Raja Muda of Perak must be commended for his boldness and sincerity. He said all  Malaysians must defend and promote the integrity of the Federal Constitution.

What Raja Nazrin, the Crown Prince of Perak, has addressed in a recent forum organised by the Bar Council and Transparency International KL Chapter certainly deserved our attention. Umno leaders who subscribe to the Malay supremacy (ketuanan Melayu) concept should heed the call and abandon all race based policies for the good of all Malaysians.

the Sun today carries his speech in full. Grab a copy today. It’s FREE! (Congrats to the Sun for achieving a circulation of 275 thousand as endorsed by ABC)

Raja Nazrin: M’sians must defend, promote integrity of Constitution

 

Cindy Tham
The Sun

All Malaysians must defend and promote the integrity of the Federal Constitution, the Raja Muda of Perak Raja Nazrin Shah said today.

The Raja Muda listed this as one of seven things Malaysia has to do to ensure it continues to be successful at nation building.

“All Malaysians, regardless of race and religion, have a place in this nation, and society must recognise that they share a common home and responsibility to build the nation together.

“Malaysians of all races, religions, and geographic locations need to believe beyond a shadow of a doubt that they have a place under the Malaysian sun.

“Only when each citizen believes he or she has a common home and is working towards a common destiny, will he or she make the sacrifices needed for the long haul.”

He said the Constitution, the Rukun Negara and Vision 2020 encapsulated the rights, hopes and aspirations of the people.

He stressed that the integrity of these documents, especially the Constitution, must be defended and promoted.

Raja Nazrin said these in his keynote address at the Young Malaysians’ Roundtable Discussion on National Unity and Development in Malaysia: Prospects and Challenges for Nation Building.

The discussion was organised by the Bar Council’s National Young Lawyers Committee and Asian Strategy and Leadership Institute’s Centre for Public Policy Studies.

Eleven panellists shared their views at the discussion, attended by some 150 participants from the legal fraternity, non-governmental organisations, government departments and the public.

The other six guidelines for successful nation-building are:

* In seeking solutions to problems in nation building, don’t assume away problems.

“Nation-building is required precisely because there are stark differences within society. There will therefore be chauvinistic groups in this country, just as there are in others. They will fight the idea of national unity, block social change and try to be politically dominant.”

He pointed out that the existence of such groups meant that society must be prepared to “negotiate our way through and around these differences”.

“We can, for example, create social movements that aim to enlighten and dissuade popular support being given to them.”

* Nation-building requires accommodation and compromise.

“In our haste to be prescriptive, we should not be so idealistic that we are incapable of also being practical.”

Nazrin said to seek the best solutions, society should be prepared to “sacrifice some part of our positions for the good of the whole”.

* Avoid enforced solutions.

“Nation building is effectively rendered null and void by coercion or the threat of violence. ‘Might’ cannot and must not be shown to be ‘right’. If solutions cannot be found within the political and social structures, there will be a strong temptation to resort to illegitimate ways and means.”

* Be open, tolerant and forward-looking

“Only by being inclusive and participative can the various sectors of our society be productively engaged. It follows that all forms of extremism, chauvinism, racism and isolationism must be guarded against. They must be soundly sanctioned socially, politically and, if necessary, also legally.”

* Nation building is a process, not an outcome

It takes time and persistence to build a nation. “Where there is no trust, trust has to be built. Where there is no cooperative network, one has to be established. Building on layers of foundation is the only way to ensure that the process is solid and sustainable.”

* Political, social and economic incentives must reward good behaviour and penalise bad.

“The incentives for building up a nation must be greater and more compelling than breaking it down. The price of racial and cultural intolerance must be made prohibitively high.”

Karpal: Resolve Civil-Syariah overlapping issues

March 31, 2007

DAP Chairman Sdr Karpal Singh, who’s also the MP for Bukit Gelugor, has taken the Umno-led BN Government to task on the issue of ” directing Non-Muslims to seek remedy in the Syariah Courts, thus disallowing them to seek justice with the Civil Courts”.

Karpal is right. It’s not the question of whether the Syariah Courts were able to dispense justice. It’s the rights of the people of different faith not to be subjected to by a set of laws tailored for the Muslims. Such judgement has caused much disquiet and unhappiness among the people of differenth faiths and could be very damaging for our multiracial and multi-religious society. It’s the duty and responsibility of the Umno-led BN Government to resolve this highly sensitive issue.

Meanwhile, the Malaysian Cousultative Council on Buddhism, Christianity, Hinduism, Sikhism and Taoism issued a statement on the same matter. I have reproduced the statement by the Chairman of MCCBCHST in this blog.

Karpal Singh: Resolve Civil-Syariah overlapping issue

B.Suresh Ram
The Sun

An opposition Dewan Rakyat member has called on the government to take up and resolve issues involving the overlapping of civil and Syariah court jurisdiction.

Karpal Singh (DAP-Bukit Gelugor) said it was about time the matter be looked at and a solution found.

Referring to the case of R. Subashini, he said it was perplexing that the Court of Appeal could ask the plaintiff, who is a Hindu, to seek remedy in the Syariah Court in regards to the dissolution of their civil marriage and the conversion of their child.

“Does this mean there is an extension of Syariah laws to non-Muslims?” he queried in his debate on a Motion of Thanks on the Royal Address.

Karpal, who is DAP chairman, also said the time had come for Parliament to take up the matter and resolve it.

“This matter, though sensitive, must be discussed in this hall in an objective manner,” he pleaded.

He added this was essential as other similar cases, like that involving the late S. Rayappan, have been on the increase of late.

Touching on corruption and the judiciary, Karpal said Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim had spoken out against corruption in the Judiciary.

“This shows that there is corruption in the judiciary,” he said, adding that was a need to now establish an Independent Judicial Commission.

Earlier, the wheelchair-bound Karpal took on several BN MPs who criticised him for belittling the King’s speech.

Karpal had said the speech was not the King’s own, because as a Constitutional Monarch, it was the government which drafted his speech. He had said there was no mention of anything on corruption.

Md Alwi Che Ahmad (BN-Ketereh) pointed out that paragraph 40 ofthe King’s speech did touch on integrity and corruption.

Karpal replied: “But there is nothing specifically of cases that were mentioned.”

Karpal refused to give way after being pressed by Md Alwi who then retorted: “You have been here for 20 years and you do not know the rules ah!”

Both BN MPs and opposition MPs then mixed it up.

Deputy Speaker Yusof Yaacob had a tough time controlling the situation, prompting Karpal to tell him: “Can you control these creatures (makhluk)”.

As things began to settle, Karpal touched on the corruption of the national language.

“Bahasa Jiwa Bangsa. However the national language is littered with words corrupted, particularly from the English language,” he said.

He took to task Dewan Bahasa dan Pustaka for allowing the national language to be corrupted.

“Are there no other words than coming up with Integrasi, Innovasi or Reformasi. Are all these not from the English language?,” he asked.

“Even when I refer to Tuan Speaker, it is corrupted,” he said much to the amusement of all in the Dewan.

Karpal then targetted Barisan Nasional component leaders, first with People’s Progressive Party (PPP) president Datuk M.Kayveas, saying he was nothing more than a political con man.

“Barisan Nasional in the coming election should give the PPP seats in the Kinta Valley,” he said.

He also criticised Works Minister Datuk Seri S. Samy Vellu and Deputy Information Minister Datuk Ahmad Zahid Hamidi for not being exemplary leaders.

MAJLIS PERUNDINGAN MALAYSIA AGAMA BUDDHA, KRISTIAN, HINDU, SIKH DAN TAO

MALAYSIAN CONSULTATIVE COUNCIL OF BUDDHISM, CHRISTIANITY, HINDUISM, SIKHISM AND TAOISM

Secretariat: Buddhist Maha Vihara, 123 Jalan Berhala, Brickfields, 50470 Kuala Lumpur Fax 03 22739307 Email: mccbchst@yahoo.com

PRESS STATEMENT ON COURT OF APPEAL DECISION ON SARAVANAN v. SUBASHINI

In the wake of the majority decision of the Court of Appeal in the case of Saravanan A/L Thangathony v. Subashini A/P Rajasingam [Rayuan Sivil No. W-02-955-2006] we, the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism, are greatly disappointed that once again, the non-converting non-Muslim wife of a convert to Islam has failed to get relief from our Civil Courts.

Hitherto, in the case of Shamala a/p Sathiaseelan she was told by the High Court that it had no jurisdiction to declare as unlawful her young children’s conversion into Islam without her knowledge or consent and was advised to seek the assistance of the Islamic authorities.

Then the widow of Everest hero, Sgt. M. Moorthy also failed to get relief from the High Court on the ground of jurisdiction. Following an uproar from civil society, the Right Honorable Prime Minister had declared that although Article 121(1A) of the Constitution would not be amended, laws will be amended to remedy the situation.

Though it has been more than a year since then, there have been no amendments to any law as yet to clarify the jurisdiction of the Courts.

It is our duty to inform the authorities that there is growing discomfort amongst the non Muslim citizens of Malaysia, who form 45% of the population, many of whom feel that the judiciary are failing in their constitutional duty to ensure the equal protection of the law for all Malaysians.

In Subashini’s case, the husband converted to Islam and converted the eldest son, aged 3, to Islam without the wife’s knowledge or consent. The husband then applied to the Syariah Court for custody of the son, again with no notice to the wife. The wife then presented a petition for divorce and ancillary relief and applied to the High Court for an injunction restraining the husband from (i) converting the children of the marriage to Islam and (ii) commencing or continuing with any proceedings in any Syariah Court with regard to the marriage or the children of the marriage.

The High Court initially granted an injunction after hearing only the wife who at that time did not know of the substance of the Husband’s applications in the Syariah courts. This injunction was continued whilst the case was heard in the High Court. After the husband submitted his evidence, and after the High Court heard both parties, it refused to give the injunction. However, the High Court granted an interim injunction to the wife pending the hearing of an appeal to the Court of Appeal, known as an “Erinford Injunction”.

The majority decision of the Court of Appeal dismissed the wife’s appeal and set aside the Erinford Injunction with costs, effectively shutting the door on Subashini’s rights as a mother to prevent the Syariah court making a determination as to her marriage and as to the custody of her children.

To add to her problem, the majority have ruled that Subashini, a non-Muslim, must apply to the Syariah Court, instead of applying to the High Court. Of particular concern to us is the statement by YA Dato’ Hasan Lah, JCA that the High Court and the Syariah Court must be regarded as having the same standing in this country.

We are also concerned to note that in his grounds of judgment YA Datuk Suriyadi Halim Omar, JCA quoted a verse from the Quran and appeared to be elevating the role and prominence of Islamic law and the Islamic judicial system in Malaysia. We would respectfully remind members of the Judiciary that the Federal Court, Court of Appeal and the High Courts in Malaya and in Sabah and Sarawak are all civil courts and Judges of those courts take an oath of office to uphold the Federal Constitution, which guarantees all persons, including non Muslims, the fundamental liberty of professing and practising their faiths in peace and harmony. It is very clear and specific in the State legislative list in the 9th Schedule of the Federal Constitution that the “Syariah Courts … shall have jurisdiction only over persons professing the religion of Islam …”.

The learned Judges in the majority appear to note that requirement in their judgments, but with respect appear to contradict themselves by then requiring the non Muslim wife to go to the Syariah courts. We express our objection to any requirement for non-Muslims to have to go to the Syariah Court for relief as such courts apply Islamic theological law. Religious laws cannot be applied to people who do not profess that religion.

The Court of Appeal in this case and civil courts are expanding Article 121(1A) of the Federal Constitution. We are also concerned that Syariah Courts are usurping functions which are not theirs. Consequently, non-Muslims are unable to obtain relief when the Syariah Court makes an order which interferes with their fundamental liberties guaranteed by the Federal Constitution.

The Federal Constitution is the supreme law of Malaysia. Our highest court had declared in the case of Che Omar bin Che Soh v. P.P. (1988) 2 MLJ 55 that Article 3 of the Constitution was never intended to extend the application of Syaria to the sphere of public law. We object to any interpretation of our Constitution or our laws that deprive any person of his fundamental liberties, and deny access to a non Muslim to the High Court applying the general civil law.

We urgently call on the Government to immediately make the necessary legislative amendments to safeguard the rights of all Malaysians and to ensure non Muslims have full and proper access to justice in the civil courts.

Dato’ Chee Peck Kiat, President

23.03.2007

Bar Council is right. Syariah Court should be strictly for Muslims

March 20, 2007

And Jacqueline Ann Surin is right. The Federal Constitution should be regarded as the highest laws of the land. We need to adhere to these two principles if we were to maintain racial harmony among the people of different faith in this country. Failing which and i’m afraid, there will be unhappiness, dissatisfaction and even unrest in Malaysia.The AAB administration cannot afford to under-estimate the danger of losing ethnic harmony due to insensitivity of some judges and overzealous religious officers.

The recent developments inside and outside the courts were alarmingly worrying. It’s the Umno-led BN Government’s duty and responsiblity to restore religious understanding and racial harmony through decisive and well-balanced policies and decisions.

the Sun has the story and comments…

Bar Council: Syariah Court only for Muslims

Pauline Puah
The Sun

The syariah court should have jurisdiction over only Muslims, said the Bar Council’s newly-elected president Ambiga Sreenevasan.

“It is the Bar Council’s view that where one party is a non-Muslim, the matter must be heard in the civil courts. This is in accordance with the law as it has stood for many years,” she said today.

She was referring to the Court of Appeal decision last Tuesday (March 13) which dismissed non-Muslim R. Subashini’s appeal to stop her Muslim-convert husband – Muhammad Shafi Saravanan Abdullah – from going to the syariah court to dissolve their civil marriage and convert their children to Islam without her permission.

In the majority decision by a panel of three judges, Subashini was told to seek recourse through the Syariah Appeal Court.

Justices Datuk Suriyadi Halim Omar and Datuk Hasan Lah dismissed Subashini’s appeal while Justice Datuk Gopal Sri Ram dissented.

For full judgment, visit: < http://www.malaysianbar.org.my/component/option,com_docman/task,doc_details>

Citing the Tan Sung Mooi case in the Supreme Court in 1994, which clearly decided that conversion to Islam does not allow a person to avoid his legal obligations under his non-Muslim marriage, Ambiga said Subashini’s case again highlighted the fundamental issue of a denial of access to justice to a non-Muslim spouse where the other had converted to Islam.

“This case shows that a real problem exists that has to be resolved swiftly,” she said.

She added that asking Subashini to go to the Syariah Appeal Court was in effect asking her to be subject to a court which applied a theological law she did not believe in.

The All Women’s Action Society (Awam) executive director Honey Tan Lay Ean, in a press statement, said the decision was “disturbing”.

She said while Suriyadi had commented that Muhammad Shafi was well within his Constitutional right in bringing the matter to the syariah court, it was contrary to the Federal Constitution which clearly states that syariah laws apply only to Muslims.

“We ask: What of Subashini’s rights and the rights of her children?”

Tan also expressed concern that the rights of the children had been shunted aside. “Both parents must have a say in deciding their children’s religion. If there is no agreement, the children can choose their religion upon turning 18. Until then, there should be no change in the children’s religion,” she said.

She said a non-Muslim woman would not feel secure in marrying and having children if her husband could potentially threaten to convert and take away their children.

“Awam fears that violent husbands could use this threat to prevent women from reporting cases of domestic abuse, forcing them and their children to suffer in silence,” she said.

Women Aid’s Organisation executive director Ivy Josiah also expressed concern that the judgment was “confusing and raised alarm bells” as it appeared that the rights of the non-converting spouse was retrogressive.

On the same note, Suara Rakyat Malaysia executive director Yap Swee Seng called on the judiciary not to abdicate its duties and responsibilities, and check attempts to use the syariah court for a quick and easy fix such as cases of dissolution of marriages, custody battles and disputes over the religious upbringing of children.

He said the most appropriate court to handle a dispute between Muslim and non-Muslim parties was the civil court.

—————–
The Federal Constitution is the highest law of the land

Comment by Jacqueline Ann Surin
The Sun

The Federal Constitution is the highest law of the land.

Because the Constitution is the country’s supreme law, as stipulated in Article 4(1), all other laws and powers conferred by law must be constitutionally consistent.

Unlike Pakistan’s constitution, which states that all laws must be consistent with syariah – as derived from the Quran and the Hadith – our Constitution does not stipulate this.

This is what makes our nation a secular one, no matter the kind of rhetoric our politicians resort to.

That may be stating the obvious but, sometimes, the obvious needs repeating, especially in the light of the Court of Appeal’s majority decision in the R. Subashini case last Tuesday (March 13).

In the landmark decision, the Hindu woman was told by the Court of Appeal that she had to seek recourse through the Syariah Appeal Court to stop her estranged and Muslim-convert husband from dissolving their marriage in the syariah court, and converting their children to Islam without her permission.

This, despite the fact that both Subashini and her formerly Hindu husband, Muhammad Shafi Saravanan Abdullah, were married in a civil ceremony in 2001, and hence, should logically and justly be governed by civil laws in ending their marriage and resolving issues such as custody and inheritance.

Since marriage is a contract, then the terms of reference that both spouses agree to upon entering such a contract, cannot and should not be overturned by new terms of reference that are a result of one spouse’s conversion to another religion, in this case Islam.

Indeed, to suddenly impose new terms of reference on a spouse, who chose neither a new religion nor agreed to new conditions that are disadvantageous, is grossly unjust and contradicts Islam’s exhortations for justice and fairness.

What recourse, then, do couples have if one spouse converts? Section 51 of the Law Reform (Marriage and Divorce) Act 1976 already empowers the civil courts to deal with such situations.

Nobody disputes the legality of the Law Reform Act. Indeed, the law ensures that the interests of all parties in a dispute are protected according to the agreed terms of their civil marriage.

Hence, the civil court’s decisions thus far in Subashini’s case is highly problematic. By allowing the converted spouse to have his civil marriage dissolved and to obtain custody of his son in the syariah court, the civil court is, in fact, turning its back on the non-Muslim spouse.

What’s more, the Court of Appeal’s majority decision that a non-Muslim spouse must seek remedy in the syariah court, is unconstitutional.

Schedule 9, List II (1) of the Constitution stipulates clearly that the syariah courts, which are constitutionally subordinate to the civil courts, only have jurisdiction over “persons professing the religion of Islam”.

How then can Subashini seek recourse in the syariah courts? And why isn’t the civil court upholding her constitutional and civil rights?

Malaysians should also remember that three years ago, the High Court told S. Shamala, a Hindu, that she could not seek redress in the civil courts to declare null and void her children’s unilateral conversion by her Muslim-convert husband, and advised her to seek the Majlis Agama Islam Wilayah Persekutuan’s help instead.

Out of desperation, Shamala fled the country with her two children.

Following that, M. Moorthy’s family was also told they could not seek justice in the civil courts because Moorthy had allegedly converted to Islam.

In Subashini’s case, however, the civil court has gone one step further by telling a non-Muslim to submit to the syariah court. Not only is the Court of Appeal abdicating its responsibility to protect a citizen’s rights and interests as provided for by good law, it is also ignoring the Constitution by enlarging the syariah court’s jurisdiction where none can exist unless there is law to that effect.

Such a judgment not only undermines the Constitution that this nation was founded on, it also fuels the fear that our Constitution is being hijacked by an Islamist agenda.

Hence, the need to repeat the obvious. The Federal Constitution is the highest law of the land, and we would all do well to respect its supremacy.

Shih Ming-te : Multiethnic youth coalition to reform Federal Constitution

March 17, 2007

Renowned democracy fighter Shih Ming-te of Taiwan spoke about inequality in a recent meeting with Malaysian NGO leaders in Kuala Lumpur. He said that all citizens should be equal and no single race should be granted with special rights and privileges. He adviced Malaysian youths of different ethnic background to work together to reform the Federal Constitution. He opined that the biggest problem facing all Malaysians was racial inequality.

He also said that former prime minister Tun Dr Mahathir is in a very good position to push for such reforms and if he succeeded, he should be awarded with the Nobel Peace Prize for 2007. Shih is also nominated as a candidate for the coveted award (for the second time).

Last year, in a nationwide depose campaign, Shih led a million Taiwanese to the streets to demand President Chen Shui-bian to step down. Chen and his family members were said to be involved in several corruption cases.

Malaysiakini has the story (plus a video clip)…

施明德冀各族青年推动平等法

马哈迪若支持修宪可获诺贝尔

黄凌风 07年3月16日 傍晚6:24 

马来西亚的各族年轻人被建议应该设立一个跨族群委员会,共同推动宪法的改革,以制定族群平等法案。 台湾百万人民反贪腐倒扁运动总指挥施明德(左图)表示,马来西亚宪法存有对族群之间不平等的条文,是一个不好的现象,也是大马各族人民必须共同去推动改变的首要事情。

日前受到媒体邀请来马发表演说的施明德,昨晚是在吉隆坡一家酒店与民间团体代表交流时直接点出,马来西亚现在最需要的是,有自觉性的马来人、华人和印裔,共同推动族群平等法案。 他在这场大约1小时30分钟的交流会上,多次语重心长的鼓励在场的年轻人,去积极推动宪法的改革。 “这几天我有一些感触,特别当知道印尼对于宪法和族群问题作出很大的改变,但却看到马来西亚的宪法依然对特定族群作出特定的保障,换句话说,不是每个人生而平等。”

“我知道很多华人对这件事情,心里头都很不平衡的。为什么宪法可以这样规定?难道只有马来人百分百效忠和爱国?难道其他人因为族群和宗教,所受到的保障就有别於其他族群?难道要这些族群少爱一些马来西亚?少效忠一些马来西亚?我认为,坦白说,这是一个不好的现象。这是我不太愿意公开讲的。”

他认为,马来西亚当今面对的问题并非民主或自由,而是对族群平等的要求。

 “推动宪法上的族群平等法案,我觉得是很有意义的。长期来说,对马来西亚是正面的。在一个国家,如果有一些人生下来就在宪法上不取得平等的地位,我觉得对这个国家的效忠、凝聚力和承继力,都会出现问题的。如果做这件事,要求平等,我相信不但在这个地方,而且在国际上都会获得回响和支持。”

 “这个意义非常深远。我想对年轻的华人,首先应该追求的就是宪法的平等权,而且这个组织不应该只由华人参加。我相信会有自觉的马来人和印裔精英参与。平等法案是一个好议题,可以触动社会很多人的心。” 施明德表示,推动族群平等比什么都还重要,这不但对马来西亚的政治环境会有改变,也会获得国际社会的支持和同情。 目标非一朝一夕可达至 不过,他说,推动族群平等的努力并非一朝一夕可以达到的。

“美国在1776年独立宣言宣布每人生而平等,但是真的要做到,还是要人去努力的。何况宪法所规定的就是不平等的。”

“不要期待三、两个月会成功,三、五年,十年乃至二十年,都值得去做这个有意义的事情。毕竟,在面对全球化的挑战……在21世纪我们都有全球化的挑战和压力,这样一个狭隘的族群意识,是不利于推动全球化这样大潮流趋势。” 《点击观赏施明德交流会短片》

 被捕和坐牢有时无可避免

 施明德也以开玩笑的口吻说,在推动这种运动时,被捕和坐牢有时候是无可避免的事情。 “做这件事情应该不会有什么问题,但是有时候去坐牢也是必要的。追求什么都必须付出代价。很多民主运动和人权运动,到了一定的程度,宗旨就被破坏了,往往是因为牢里头根本没有政治犯。如果牢里头有政治犯,它将像灯塔一样照亮社会,变成一个指标,变成一种引领。总要有人扮演灯塔的角色。”

也是今年诺贝尔和平奖候选人之一的施明德,也建议我国前任首相马哈迪,是推动宪法改革和制定族群平等法案的最佳人选。 “我也知道马哈迪也是今年诺贝尔和平奖的候选人,他如果能够在10月份以前推动马来西亚修宪,让马来西亚的平等法案能够通过的话,他就是应该得到今年的诺贝尔和平奖,因为这有实质的意义。”

OSA threat: Law professor speaks his mind

February 26, 2007

26/02: Government’s might vs citizens’ right

 Outside the Bukit Aman PDRM Headquarters after giving statements on OSA investigation.

Category: General

Posted by: Raja Petra

The ban on disclosure of road toll deals between the Government and the concessionaires raises interesting constitutional issues.

By Shad Faruqi
The Star

A FEW weeks ago four opposition politicians were questioned by the police for disclosing confidential contents of highway toll agreements between the Government and private concessionaires.

Several citizens’ groups including Transparency International were quick in expressing concern about the use of the Official Secrets Act in this situation. It was argued, and rightly so, that the imperatives of good government demand more openness in government and protection for whistle-blowers.

Those who act in the public interest to expose corrupt practices in government should be viewed as public benefactors, and not as criminals.

Public law issues

From the perspective of constitutional and administrative law, the toll deals between the Government and the concessionaires draw our attention to the following engaging issues of constitutionalism and good governance.

·What is the extent of freedom of speech and expression under the Constitution, and the corresponding power of Parliament to enact laws like the Official Secrets Act to impose restrictions on this fundamental right?

·Does the law relating to “government secrets” as contained in the Official Secrets Act give to the Government unfettered discretionary power to suppress any or all information in the public sector?

·Is there legal basis to the Minister’s claim that though the Prime Minister and the Cabinet are willing to de-classify the concession agreements, the prior consent of the concessionaires is required?

Article 10(1)

Article 10(1) (a) states that “every citizen has the right to freedom of speech and expression”. There is no elaboration of the exact scope of this freedom or its constituent parts. Specifically, there is no mention of freedom of the press or freedom of the electronic media.

In constitutional law, however, it is generally understood that the right to freedom of speech and expression is a combination of many rights in many forms.

Communication by word of mouth, signs, symbols and gestures and through works of art, music, sculpture, photographs, films, video, books, magazines and newspaper are all part of free speech. In India, a long line of cases has upheld the notion that freedom of speech and expression includes freedom of the press.

Advertisements are part of constitutionally protected free speech if they express ideas or promote human thought. But in India a commercial advertisement having an element of trade and commerce and promoting business is outside the Constitution’s protection.

Even “symbolic speech” like the manner of one’s dressing and grooming can be treated as part of one’s freedom of expression. In the US, flag burning has been treated as an expression of free speech protected by the Constitution: Texas v Gregory Lee Johnson (1989).

The guarantee of free speech covers not only the political but also the artistic and aesthetic field. It is available not only to natural persons who are citizens but also to legal persons like companies, corporations and statutory bodies if they are incorporated or established under Malaysian law.

Does Article 10(1) (a) include the right of access to information? The position is not entirely clear. In India, the Bennet Coleman case suggests that freedom of the press includes the right of the people to read. But in Singapore Justice Chan in Dow Jones Publishing v AG (1989) stated that the right of access to information is not part of the guarantee of freedom of speech.

Restrictions on free speech

The Constitution, in Article 10(2)(a) authorises Parliament to impose restrictions on free speech on the following eight grounds: national security, friendly relations with other states, public order, morality, privileges of Parliament and of any State Assembly, contempt of court, defamation and incitement to any offence.

In addition, Article 10(4) prohibits the questioning of citizenship rights, status of the Malay language, privileges of Malays and natives of Sabah and Sarawak, and prerogatives of the Sultans.

Freedom of expression can also be restricted by laws relating to subversion under Article 149 and emergency laws under Article 150. All in all, Parliament has authority to abridge free speech on 14 constitutionally permissible grounds. These grounds are indeed very broad. Nevertheless they do draw some lines beyond which Parliament cannot transgress.

Theory vs reality

The legal and political reality is, however, very different. A plethora of parliamentary laws imposes a blanket ban on freedom of expression even if the constitutionally enumerated grounds (like national security) are not involved.

For example the Statutory Bodies (Discipline & Surcharge) Act prohibits employees from making any critical comment about government policies. The Printing Presses and Publications Act vests the Minister with “absolute discretion” in relation to licences and permits.

Section 13A declares that “any decision of the Minister to refuse to grant or to revoke or to suspend a license or permit shall be final and shall not be called in question by any court on any grounds whatsoever.”

Judicial review

Can judges examine the constitutionality of laws or executive actions that impose restrictions on free speech?

It is conceded that Parliament’s power to restrict free speech is indeed very broad. But the power is not limitless. Any restrictive law or executive action must fall within one of the fourteen permissible grounds or fit into one of the constitutional pigeon-holes enumerated earlier. Otherwise judicial review is a distinct possibility.

In Madhavan Nair v PP (1975), Justice Chang Min Tat said: “Any conditions limiting the exercise of the fundamental right to the freedom of speech not falling within the four corners of Article 10 Clause (2), (3) and (4) of the Federal Constitution cannot be valid.

“No power, statutory or otherwise, can be exercised so as to contravene an article of the Constitution.”

Similarly, in Persatuan Aliran v Minister (1988), the Court accepted the principle that the Minister’s absolute discretion was subject to judicial review.

In conclusion, it is submitted that despite the wide powers conferred on Parliament by Article 10 clauses (2) and (4), provisions of the fifty-or-so statutes which directly or indirectly impinge on freedom of speech can all be tested by the yardstick of the Federal Constitution.

The courts are the repository of this power of review. They have the duty to give life to the Constitution; to make our basic law the chart and compass and the sail and anchor of all governmental action.

The writer, Dr Shad Faruqi, is Professor of Law at UiTM.


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