Monday, December 11, 2006

Rayappan: Constitutional Considerations

The Rayappan affair is worrying as, apart from the grief caused to the family, it indicates a total lack of understanding on the part of the Government and the Attorney General’s chambers as to how the separation of powers is meant to work in this country. Several points need to be made.

It is not for the Executive to resolve conflicts other than as a mediating party or, where the Executive is a party to a conflict, by offering a settlement. In the Rayappan affair, the Executive was not a party to the conflict. This was between the Majlis Agama and the family. The Majlis Agama had for its own reasons taken this matter to the syariah court and there were proceedings pending. The family had taken the matter to the High Court. Whether either party was right or wrong was a matter for the various courts to decide, though my view is that it was only the High Court that had jurisdiction.

By directing the Attorney General to determine Rayappan’s religious status, the Government in effect side-stepped the Courts. This was not legally permissible. It also creates the impression that the ultimate decision is with the Government and not the Judiciary. This line of thinking appears to have become more prevalent in the Government as of late and must be corrected. Decisions of the Judiciary are declaratory of the law and the Government, like all of us, is bound to follow the law as written and declared.

I recognize that the situation would be different if the Attorney General had advised the Majlis Agama to withdraw its case. The decision would ultimately have been that of the Majlis Agama, a party to the conflict. I believe this to have been the case although the media reports are ambiguous. If this were the case, then Malaysians are entitled to know why the Majlis Agama took the position it did in the first place. And if the Majlis Agama takes the view that it was correct in the first place, how could it allow the subsequent developments, that is the release of the body to the family for burial as a non-Muslim? This begs the question of whether there should be any intervention by the Majlis Agama in situations like this but that is a matter which I will discuss at another time.

Additionally, it is not for the Government to direct the Attorney General as was done in this case. The Attorney General may be requested to consider or look into a matter but he cannot be compelled to exercise his discretion. This is most obvious when one considers the discretion of the Attorney General when he wears the hat of the Public Prosecutor. The Public Prosecutor’s discretion to charge or to not charge as the case may be particular persons is entirely his own. Were it otherwise, the Government would be deciding who is prosecuted and who is not. I am surprised that the Attorney General seemingly complied with the direction instead of correcting the impression created. Though one can appreciate that diplomacy is required, this cannot be at the expense of public confidence in the system of government employed. Such confidence must be prioritized above everything else.

Quite apart from the constitutional and legal considerations, the Rayappan affair underscores the need for the Judiciary to deliver its decision in the Lina Joy case. The precedent set there will be of great value (if the Federal Court concludes on all the issues raised in a comprehensive manner) and go a long way to resolving the conflicts of laws that underscore the case and cases like it.

MIS

6 comments:

Old Fart said...

K Shanmuga in a comment in todya's The Sun highlights what was the situation before and then after 1988 when Article 121(1) was put into the constituion, at a tme ofcourse when the opposition was mostly serving time under the ISA.

Before 1988 Article 121(1) used to say "...judicial power of the Federation shall be vested with the High Court. After 1988, Article 121(1) was changed to "the High Court shall have such jurisdiction and powers as may be conferred by or under Federal law".

Is it the devil that was introduced then that is carrying out its demonic intentions now?

Considering we have a bunch of lawmakers who do not have respect for the law and who have shown that the law is there to serve them, these happenings you have identified become more and more frequent. It is obvious that that change in the constitution has paved the way for our law makers to have disrespect for constitution and the juiciary considering that rather than they operating under the powers and authority granted by the constitution, it is they who seem to be the trustees of the constituion with powers to cange the terms of the trust. Indeed they are behaving like they are the settlors of the trust.

The cabinet's passing the buck to the attorney general to look into the matter is further evidence of our Prime Minister not understanding the workings of the different institutions set out by the constitution.

devonic said...

It's true when the power of law are readily available in some selected hands we are in jeopardy...But the question is how this law is used and dispersed?...How much of this written law is made understandable to all is relevant..
How many of us do really know anything about the written law nor do the constitution..We only know some of the important aspects of the law and constitution...And that too..maybe just for the reason it has been an issue or debated widely..or if it is probing our own circle of life...
How can we instil the knowledge of moral,law and constitution to all of us...Maybe to late for some..but not for all...
If the Education Ministry would introduce a compulsory study of Morale,Law and Constitution for e.g 'Pendidikan Rukun Negara' or some thing better,this will pave way for our younger generation to know about their rights,what's wrong or right,what is stipulated for them in this nation and more importantly...the well behaviour of our next generation...
When a court reading or a legal sentence is spelled out ,at most time ,we blur out..If this is something that we do not want our younger generation to feel...then a formal education at any early stage of our young kids should be given...
Then only we can say..."Now I know what is Malaysia is about and what am I to Malaysia....."

Malik Imtiaz Sarwar said...

I think Shamuga is correct. The principle cause of the difficulties we are facing at the moment in all areas (where the courts are concerned) including the 'Islamic' one is the 1988 amendment to 121(1). Not 121(1A) as some suggest, as this in my opinion merely clarifies the nature of the relationship between the syariah courts and the civil courts, mantaining a supervisory role for the latter. The 121(1) amendment could be said to have suborned the Judiciary to Parliament and, by default, to the Executive. With the amendment, the right to judicial review has been said to have been removed (I do not agree with this as I think the amendment was unconstitutional).

We do need a constitutional/human rights element to the curriculum for schools, especially at the primary level. It is the only way that we can start repairing things, from the ground up. Having said that, I think all of us play a role too, especially in creating awareness and empowering.

Stanford Law said...

MIS,

let's talk law for a moment. here r my views about this whole issue of apostasy, article 11, 121(1A), n corpse-fighting. hope to hear your response.

but first, policy.


I

corpse-fighting: as a policy matter, i think even if the state religious authorities have the legal power/right (or obligation? i'm not so sure) to ensure that a muslim should b buried according to islamic rites, they should not excercise that in the case of a muslim (real or 'suspected') who has his family members to take care of his funeral.

even if it means that the 'muslim' will b buried not in accordance with islamic rites.

a, bcos their role should b a 'welfare' one, to take care of those muslims whose bodies r not cared for upon death, such as poor people, people living alone with no relatives, etc.

b, bcos the ill-will generated by the corpse fighting really does more, MUCH MORE, harm than good, to islam.

ANYBODY (including muslims, if they put themselves into other people's shoes) would b offended if their loved one's corpse is being snatched away by TOTAL STRANGERS just before the funeral. the anger is multiplied when the 'snatcher' is religiously-motivated, bcos the sensitivity towards religion is suddenly elevated so much at a person's significant moments in life (birthday, wedding, death of parents, her own death).

on the other hand, what good does it do to the muslim ummah as a whole to ensure this particular body of a 'suspected' muslim buried as a muslim? from the other angle - would islam/muslim ummah b seriously (i don't mean 'symbolically', unless they r hell-bent on being obsessed with form n consider form as being the supreme consideration) affected if they 'missed out' some of the 'suspected' muslims?

i keep emphasising that they r only SUSPECTED muslims. to take rash, drastic (provocative, to the reciepients) actions based on conflicted, controversial evidence is not only imprudent, but gross recklessness, n downright stupid n extremely harmful pr.

so, given that the deceased's family have been taking care of him n will b able to do so at his death, the religious authorities should just leave them alone. we would have so much less trouble if everybody minds their own business n don't do this kind of counter-productive, costs-far-outweighs-benefits(if any) actions.


II

i take this opportunity to contribute my 2 cents about the article 11, lina joy n article 121(1A) issues, as u have been heavily involved in them.

1, article 11 - something as important as DENYING the freedom of religion to a SIGNIFICANT/MAJORITY group of the population (muslims) would have been explicitly spelt out by the constitution, but it wasn't.

under usual principles of statutory interpretation, if i'm not mistaken (iinm), this should indicate that such freedom has not been taken away. iinm, the common law has many cases which says something to that effect, n that in order to deny a person's liberty or fundamental rights, clear n unambiguous words must b used. i think the federal court even have some recent cases on that principle, with regard to liberty of isa detainees.

2, lina joy

a, it's actually a case on a few narrow questions, as framed by cyrus das, but i was surprised that at the fc hearing, things have widened so much to talk about whether islam is supreme, article 121(1A) n all that. i wasn't present at the hearing, but i wonder whether there's some problems with the ability of the ag lawyers to concentrate, n by extension (in not demanding that parties return to the issues at hand) the fc panel as well.

the case could b decided by fc on narrow grounds of the powers of jpn to add in the 'religion' bit in mykad, whether they were ultra vires or not. all those debates about what does 'islam is official religion' mean was, with due respect to all counsels, completely off the mark.

b, even if the fc wanted to decide on the question of what does 'islam is official religion' mean in relation to apostasy, they should have asked for expert evidence on islamic law on apostasy in the first place.

after all, we cant just take the (unstated) assumption of the opposing counsels for granted - that in islam, there's no freedom to apostate. many progressive muslim thinkers would hold a contrary view - not least bcos the qur'an itself doesn't say no. (n if they want to open up the debate to hadith, they themselves r making the field even muddier, bcos there r so many diverse schools on thoughts on how to understand the meanings n implications of a particular hadith anyway, not to mention the challenging of their authenticity.)

so, even if somehow islam is 'supreme' (n not the constitution itself), that concession should NOT have been made without a hard fight.


3, article 121(1A)

a, i think the first question should b whether apostasy/freedom of religion has been 'assigned' under the fed constitution to syariah courts EXCLUSIVELY.

if the answer is no, the high court clearly has jurisdiction.

in fact, to many people, the syariah court was only supposed to decide on things like family, inheritance, criminal offences etc. but somehow, apostasy slipped in under 'crime'.

b, even if under fcon, apostasy is under syariah court exclusively, the question doesn't stop there. what if the syariah court decides cases in a way which contravenes the fcon, including article 11???

surely, as a creature of the fc, the syariah courts - being STATE courts only - could not bite the hands which created it, the fcon!

to me, at least, fc has the jurisdiction to review syariah court decisions when it impinges on fcon issues, if not hc (bcos of 121(1A).

c, if article 121(1A) has the effects which the anti-lina joy parties r advocating when it comes to demarcation of ct jurisdictions, then it still cannot b the case that STATE governments r allowed to OVERRIDE FEDERAL CONSTITUTION THROUGH THE BACKDOOR by enacting whatever islamic laws they like in STATE legislature which clearly contravenes the fcon.

to interpret 121-1A that way would mean that now, state legislatures r supreme when it comes to muslims, no longer the fcon.

to me, that's an absurd position to take, n dangerous too bcos the supposedly SUPREME fcon has suddenly been castrated, rendered impotent by mere state laws enacted in the name of religion.

malaysia BODOH indeed.

Malik Imtiaz Sarwar said...

Stanford Law, you make some very pertinent points and are asking the right questions. There is a lot of ground to cover and I will do it in a posting on the blog very soon.

I will say however that it is important for people to understand what the arguments in Lina Joy were, and why they were relevant.

It should be noted that there was no argument about whether Islam allows for apostasy or not. The questions framed though of an administrative law nature (and narrow, as you point out) had constitutional implications i.e. whether any regulation mandating identification of Muslims and requiring an 'exit order', if such regulation existed, rendered the freedom of religion illusory. The argument could not merely be one of whether there was a regulation/ policy that required the exit order or not. The majority in the Court of Appeal had said that there was.

It was in attempting to argue out of Article 11 that counsel for the government/majlis agama contended, in essence, that under Article 3 Malaysia was an Islamic State by reason of the supremacy of Islam.

I will return to this subject soon.

Stanford Law said...

MIS,

further to my II,3,c above about article 121(1A), i just want to add that if state islamic laws have the effect of overriding fcon when it comes to muslims, it is DANGEROUS also bcos now, we would have a DE JURE apartheid.

bcos for muslims, they r no longer governed by fcon, bcos fcon is supreme ONLY for non-muslims, the SUPREME LAW for muslims is no longer the fcon, but STATE-enacted syariah laws. we therefore have the ummah governed by the 'syariah' (subject to debate whether it conforms with the true islamic teachings), while the DHIMMIS governed by the fcon.

one country, 2 systems. unlike hong kong, this is apartheid in the true sense bcos in the case of china-hong kong, at least they r geographically separted from each other, such that in a particular place, only ONE set of laws apply to EVERYBODY. but in our beloved bodohland, on any given inch of land, 2 persons with different religions r governed by 2 very different sets of laws.

this backdoor attempt to introduce 'islamic' laws as supreme for muslims is mischiveous, n downright deceptive. the government should have the courage to b honest with the muslims by telling them that IN LAW AND IN FACT, the fcon is NOT YOUR supreme law. it's only the DHIMMI CONSTITUTION.

i can still tolerate it if the government is bodoh, but please don't b DECEPTIVE as well.