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Monday, June 4, 2018

On Fear Mongering And Tommy Thomas

In one of his earliest press conferences after the election, Dr M was asked about how the new government would approach the rights of the Malays. He responded by emphasising that his government would adhere to the Federal Constitution and that the rights of the Malays would be respected, as would the rights of the non-Malays. Pertinently, he also emphasised, as he continues to do, that his government would act in accordance with the Rule of Law.

In taking that position, and by his conduct since, in particular the recommendation of reputedly the most diverse Cabinet this country has seen and the latitude he has given his Ministers to state their respective positions on their portfolios, Dr M had signalled the potential for us to shift away from an ethno-religious political construct in favour of a more inclusive, capabilities based approach.

Such an approach appears to have resonated with the voters. However, as we have seen and heard in the period following the election, there is much debate about what had led to the toppling of the BN. Though an inclusive viewpoint was an important factor, the debate reveals some uncertainty about whether it was instrumental and, if so, whether that approach is here to stay.

This represents an opportunity for detractors aimed at undermining, or even impeding, the trajectory of the current government. It goes without saying; any political actors that would benefit from a surge of ethno-religious issues would either work towards that surge or support such efforts. For these parties, fear mongering about the undermining of the status of the Malay Rulers, the rights of Malays, and the administration of Islam would be a useful endeavour for a variety of reasons that ultimately pertain to self-interest.

The nomination of Mr Tommy Thomas appears to have been a flashpoint. It has provided a useful platform to stoke fears about these matters. A perfectly credible nomination has been characterised as an attempt to undermine Islam through liberalism and secularism, and to undermine democracy through an implied support of communist ideals. 

This has been packaged in the apparent denial of a legitimate need on the part of the Malay Rulers, in particular the YDPA, for advice on matters of Shariah law by the nomination of a non-Muslim. This purported denial suggests that the legitimate needs of the Malay Rulers as Heads of Islam are being ignored by the nomination.

It is possible that as a consequence of the murkiness, the matter is to be deliberated by the Conference Of Rulers.  The Malay Rulers are of course entitled to deliberate on any matters that their Highnesses consider to be relevant to their roles as Malay Rulers. 

It bears consideration though that, unlike the appointment of judges of the Superior Courts (Article 122B(1)), the appointment of an Attorney General is not a matter that requires consultation with the Conference Of Rulers. That is a matter on which the YDPA is to act on the advice of the Prime Minister (Article 145(1) read with Article 40(1A)).

This is not to say that that the YDPA is precluded from considering the matter in consultation with the other Malay Rulers, should His Majesty consider this to be necessary. 

A legal question does arise as to the scope of such consultations. That would ultimately relate to the powers of the YDPA as to the appointment of the Attorney General.

Article 145(1) specifically deals with the appointment of the Attorney General and it explicitly requires the YDPA to appoint the Attorney General on the advice of the Prime Minister. The YDPA is therefore precluded from questioning such advice save on the limited question of whether the Prime Minister is duly empowered to give such advice. He may, for instance, in recommending the dismissal of one Attorney General and the appointment of another, be acting in conflict of interest. 

Article 40 does however, generally provide for where the YDPA is to act on advice. A40(1) and (1A) suggest that the YDPA is entitled to “consider” the advice given, and for that purpose,  is allowed access to information the government might have on the subject. Thus, the scope of consultation could be slightly broader though, ultimately, the YDPA is obliged to act on advice.  It may also be argued that as Article 145 specifically deals with the subject of the appointment of the Attorney General, its language is to be given effect as the specific provision over-rides the general one.

Whichever interpretation is adopted, in my respectful view, the YDPA is ultimately obliged to act on the advice given save where the Prime Minister is not empowered to give such advice.

This should, however, not be any cause for concern.

Matters pertaining to the administration of Islam fall within the purview of the State. The Malay Rulers are Heads of Islam in their respective States. The YDPA is the Head of Islam in the Federal Territories. The focus of the Malay Rulers is thus on the personal law of Muslims. For this purpose, the respective Majlis Agama and Muftis advise the Malay Rulers.  This is the case even for the Federal Territories.

Further, the Shariah courts enforce Shariah law, and the Attorney General’s Chambers plays no role in this. 

It is only where Islamic law intersects with matters in the public sphere involving the Federal Government that the Attorney General’s Chambers is involved; for instance, on laws pertaining to Islamic Banking. The administration of Islam as a personal law does not concern the Attorney General’s Chambers.

As for the status of the Malays, that is protected by Article 153. Unless and until that provision is amended out of the Federal Constitution, it is there to stay. 

Given this state of affairs, I do not think there is any reason for any of us to be fearful. The system will self-regulate.  

The government changed on 9th May and the sky did not fall on our heads. Things are moving in the right direction now and, understandably, an overwhelming number of Malaysians are concerned about attempts to undermine the changes that are happening around us. We are worried that the continuing fear mongering will only entrap us in the murkiness of race politics that has impeded our progress for far too long.  


Wednesday, May 16, 2018

On The Reform Agenda

The Pakatan Harapan ousted the BN on the strength of a promise of reform. Having formed the new government, it is clear that the ability to deliver on that promise has to be balanced against the challenge of taking the reins and steering the country back on course. 

From what Dr M has been doing, it appears that his government (as small as it is) equally recognises reform as a priority. The establishment of the Council of Elders, and the Committee On Institutional Reform speaks to that.

It is imperative that Dr M and his team be given the fullest support and latitude to do what needs to be done. To the extent that there is any political infighting s the members of the Cabinet are being determined, and it appears that there may be, it would be a shame if that infighting impacted on reform efforts.

More than that, it would amount to a betrayal of the mandate given to Pakatan Harapan to reform the country. Political interests must give way to the national interest. 

I am happy to note that, as quoted in Malaysiakini today, Dato’ Seri Anwar has said that the litmus test of the new administration (perhaps we should stop using the word regime) will be on how its implements the reform agenda. 

I think that is a fair yardstick to apply. It implicitly recognises that the new administration must be given the time and space to do what it needs to, and that a high standard is expected.

It bears reiterating that the necessary time and space must be given to the new administration to let it see through its reform agenda.

Going by the issues that created the momentum for the ousting of the BN, the expected reforms are numerous, ranging from the electoral system to the public service and, close to my heart, the administration of justice.  This will require a lot of thought and effort and, more importantly, the political will to drive reform through to completion.

Having said that, this is a process that has to be approached with a sense or urgency and novelty. Decisive steps will have to be taken. Problems need to be addressed with the best solutions, even if these involve approaches that are novel or unconventional. 

For example, where the justice system is concerned, if the administration is serious about shoring up public confidence in the Judiciary it must take concrete steps to do so. This has to start by asking whether the Judiciary is made up to the best persons for the job. It may be that, without impinging on their security of tenure, measure needs to be introduced to allow for judges to be independently vetted, evaluated and reviewed for performance and suitability for office periodically by an independent judicial ethics committee. There is a Judicial Ethics Committee Act 2010 in place. It needs to be tweaked. Similarly, it may be that the Judicial Commission Appointments Act 2009 will have to be amended to make it wholly independent of the Judiciary in the manner originally proposed by the Bar. This is after all the way in which the commission operates in the UK.

Similarly, to ensure that justice is seen to be done, it may be the case that the judges of the Federal Court and the Court of Appeal be required to deliver written grounds of judgment for every appellate decision of those courts. This will make their reasoning known to litigants and the wider public, and ensure that due consideration is given to the issues that arise for determination. It will also eliminate concerns about selective decision-making.

Also, it would best for all appeals to the Federal Court to be determined by panels of at least 7 or 9 judges, each of whom write or contribute to the written decisions of the court. This is, after all, the practice of the apex courts in the USA, the UK and Australia, a practice that ensures the development of the law in a coherent manner. The Federal Court is after all the apex court tasked with supervising and developing judge made law in the public interest.

These changes are easily applied without the need for constitutional amendment.  However, those seeking change will have to wrestle with entrenched ways of thinking, comfort zones, or circumstances, these obviously beneficial practices have not to date been adopted. 

Dealing with an entrenched culture is going to be one of the biggest challenges to the institutional reform. It will have to be driven through unrelentingly by administrators capable of staring it down. Amongst the most important of these administrators is the Attorney General. That is why I think that the reform process can only truly start, going from theory to practice, when we have an Attorney General who understands what is needed and is not daunted by the challenge.

That is why a new Attorney General has to be appointed as quickly as possible, one who is capable of doing what it takes but who remains accountable to Parliament. 


Tuesday, May 15, 2018

On The Attorney General

There are calls for a non-political Attorney General. 

If the Attorney General were only the Public Prosecutor, this would make sense. You would want the person vested with the power and discretion to prosecute to be wholly free from influence. 

However, the Federal Constitution says that the Attorney General is also the Public Prosecutor, and thus serves the dual function of both being the legal advisor to, and the representative of, the Government as well as the Public Prosecutor.

It is for this reason that the Federal Constitution allows for the appointment of a Member of Parliament to be the Attorney General, who may even be appointed as a member of the Cabinet (see Article138(2) and Article 145). In this way, the Attorney General can be made accountable to Parliament.

This is a vital dimension of the discussion and should not be overlooked. This accountability would extend to the role of the Attorney General as Public Prosecutor.  Decisions made in that latter capacity could also be reviewed and scrutinised in Parliament.

I appreciate, however, that there is basis for concern as to the potential for political influence to creep into the sphere of prosecutorial discretion. That concern can only be completely addressed by a constitutional amendment that separates the office of the Attorney General from that of the Public Prosecutor. 

That is something, as I understand it, the Pakatan Harapan is committed to doing. It however requires steps to be taken, Apart from the constitutional amendment, it would be necessary, amongst other things, to establish a separate body akin to the Crown Prosecution Service in England, the reassigning of officers of the Attorney General’s Chambers to that new body, the amendment of criminal laws to provide for this fundamental change.

Such steps must also be taken in tandem with the other reforms the Pakatan Harapan says it will introduce, in particular the reshaping of the Malaysian Anti-Corruption Commission into an independent body accountable to Parliament. If this is taken to the fullest, it could possibly involve the head of that agency also being given an independent power to prosecute.

To put this into play, there is a need for continued political will for such change. The new Attorney General must be someone who can see to it that the Pakatan Harapan does not lose steam on the subject or, for other reasons, retract its position on the commitment. An Attorney General who is a Member of Parliament and in the Pakatan Harapan would be able to do that more effectively than an outsider.  The candidate for Attorney General must however be someone who is seen as committed to this change and who is capable of delivering it.

In the meanwhile, there are ways in which any lingering concerns about political influence on prosecutorial discretion can be addressed temporarily. The Attorney General could seek to exclude himself from decisions to prosecute or not by delegating the functions of the Public Prosecutor to the Solicitor General. Should the need arise, a lawyer from private practice could be contracted as the Solicitor General for that purpose. Additionally, independent oversight committees could be established to oversee decisions made. And, the Attorney General could be asked to prepare reports for Parliament. For this purpose, if necessary, an Administration Of Justice Act could be enacted.

The office of the Attorney General is pivotal to the reforms in the administration of justice that the Pakatan Harapan has committed to. Whoever fills that position must not only be a person recognised for integrity and principle, but also to the Rule of Law and the highest standards of the due administration of justice.

He or she must also be committed to those reforms and must be able to drive the process through to completion, working both with the Government and other stakeholders. This calls for an understanding of the processes involved in the administration of justice as a whole, and in the civil and criminal justice systems. That person must also be able to work with the officers of the Attorney General’s Chambers, who in turn should be able to relate to him or her. Internal resistance would undermine any efforts to introduce reforms.

Ultimately though, that person must be accountable to Parliament from the outset.


Saturday, April 26, 2014

Defending the basic structure

It appears that PAS will be seeking to give effect to the Kelantan Syariah Criminal Code Enactment II of 1993 by way of a Private Members Bill in Parliament. Through this, PAS aims to introduce hudud laws into Kelantan for Muslims living I the state. The term ‘hudud’ (literally “limits”) refers to offences (and their corresponding punishment or sentence) that are considered by jurists to have been prescribed by the Quran and the Sunnah of the Prophet Muhammad. Punishments include death (by stoning), flogging and amputation.

It may be recalled that the 1993 Enactment, like its counterpart the Terengganu Syariah Criminal Enactment of 2003, which additionally introduced Qisas (retaliatory) offences and punishment, have been the subject of controversy since their inception. These laws, it was thought by many, were not only unconstitutional; they sought to codify impressions of Islamic criminal law that were not necessarily universally accepted.

Both the Kelantan and the Terengganu Enactments did not come into force, in part because of challenges to their constitutionality and public outcry. In 2003, Zaid Ibrahim was given leave by the Federal Court to challenge the validity of these enactments on the basis that the Legislative Assemblies of Kelantan and Terengganu did not have the competence to enact these laws. I appeared as counsel for Zaid Ibrahim. The Government of Malaysia, through the Attorney General, supported the applications. Though the petitions were ultimately withdrawn, the matter was thought to have ended there. The subject remained within the realm of politics and political brinksmanship.

Or so it was thought. The recent initiative to implement the Kelantan Enactment, albeit with the endorsement of Parliament, calls for a reappraisal of the matter, in particular its constitutionality and lawfulness.

No matter how many times the politicians say otherwise, Malaysia is not an Islamic state from a legal standpoint. The Federal Constitution declares itself the supreme law of the land. All actions by all organs of the State, including the Legislature and the Executive, at the Federal and State levels, must act consistently with that supreme law.  

Legislative power is divided between Parliament and the respective state legislative assemblies. The delineation of legislative powers is prescribed by the Federal Constitution itself, the 9th Schedule of which sets out in three separate lists – the Federal, State and Concurrent Lists – the fields of legislative competence of these lawmaking bodies. Criminal law as the term is commonly understood is within the domain of Parliament. The aim was to allow for the creation of a uniform system of criminal law applicable to all persons in Malaysia, a state of affairs required by the guarantees of equality before the law, equal protection of the law, and the equal protection of life and liberty. 

A minor exception was allowed for. Recognising the place of Islamic personal law in pre-merdeka Malaya (later Malaysia), State legislative assemblies were vested with the power to create Islamic law for personal law purposes. This included the power to establish Islamic courts, and create offences against Islamic precepts. In deference to federal control over matters of criminal law, the Federal Constitution required that sentencing powers for such offences be vested in the Islamic courts by Parliament. As thing stand, a federal statute – Syariah Courts (Criminal Jurisdiction) Act 1965 (Revised 1988) – limits the sentencing powers of the shariah courts to imprisonment of three years, with any fine exceeding five thousand ringgit or with whipping exceeding six strokes, or with any combination thereof.

Although we are yet to see what it is that the Private Members Bill is aimed at, it stands to reason that it will seek to amend the 1965 Act in so far as Kelantan is concerned to allow for hudud offences and sentences, with particular reference to the 1993 Enactment. From media reports it would seem that some PAS Members of Parliament are of the view that a simple majority of members present in the Dewan Rakyat would be sufficient to push the bill, and as such hudud in Kelantan, through. I beg to differ.

For one, this viewpoint ignores the fact that the Kelantan legislative assembly was not competent to enact the 1993 Enactment. In creating the offences and prescribing the sentences that it does, it has encroached into the domain of Parliament for having created criminal offences. It has in effect created a parallel system of Islamic criminal law that goes beyond the constitutionally contemplated scheme of personal law offences. This not only violates the legislative provisions of the Federal Constitution, it offends the various guarantees of fundamental liberties accorded by the Federal Constitution to all citizens, including the Muslims of Kelantan. It would wholly undermine the constitutional arrangement of this nation and irreparably damage its basic structure. 

If this is what the Private Members bill seeks to achieve, then it is clearly misconceived. Leave aside concerns about the basic structure, such an effort would be tantamount to an attempt to amend the Federal Constitution. In the ordinary course, this would require a majority comprising two-thirds of all members of both Houses of Parliament. 

As I understand it, private members bills are not treated as matters of priority. I cannot recall when we last heard of one being debated in Parliament, they are pushed to the end of the list and called up only on the completion of government business. Chances are that the proposed bill would never see the light of day.

The political climate is however murky, and extremism appears to be lurking on the fringes. A declining economy, continuous emphasis on race and religion and an ineffective education system have collectively served as an incubator for a reactionary mindset amongst a large number of Malaysians.  I am concerned that desperate ambition may make an alliance with PAS on this subject seem acceptable to UMNO. 

If so, and I hope it not to be the case, then it cannot be emphasised enough that the context make this a matter of great seriousness. The implications are tremendous. 

This is not about Islam, or being anti-Islam. I do not think it open to anyone to suggest that the legal framework of this country has done anything other than to serve and promote the interests of the religion. Muslims in this country have every resource at their disposal to profess and practice their faith. 

Rather, this is about standing by a shared commitment that we undertook in 1957 when we declared ourselves citizens of an independent nation.

Malik Imtiaz Sarwar is a practising lawyer and the Immediate Past President of the National Human Rights Society of Malaysia (HAKAM). This comment is dedicated to the memory of the late Karpal Singh who fearlessly and untiringly defended the basic structure of this nation

Friday, April 25, 2014

Tribute to Karpal Singh

(I was privileged to have been invited to speak at the memorial event held in honour of the late Karpal Singh on 24th April 2014)

Allow me to begin by expressing my heartfelt condolences to the family of the late Mr Karpal Singh. 

Mr Karpal was a close friend of the family. 

I grew up with his children, became their schoolmates in secondary school. First Jagdeep, a year below me, then Gobind, Ram, and Sangeet. Mankarpal was a little too far behind. We treated each other’s houses as our own. We were close enough for our respective mothers to scold us all. There was no discrimination. I describe this to you not as a mark of distinction, or a source of pride, but rather as a means to say that the man I came to know, and love dearly, was always simply Uncle Karpal.

As a young boy, he was a towering presence. Larger than life. That man on the posters, on the back of the jeeps, vans and lorries that carried him on his election campaigns. The walls of the boys’ rooms were filled with cut outs of his exploits, the Lat cartoons that he was quite regularly featured in. His was that comforting presence that, often absent, was nonetheless cherished, even if it involved some of the strangest pranks. In him, we had an ally, not just someone who would protect us from the wrath of our mothers when we created trouble, but someone who would quite happily get involved in the mischief we were brewing if he had the chance.  

Curiously, it seemed the like the most normal thing in the world. This world-class advocate, fearless defender of human rights, parliamentarian, to be getting wholly involved in the childishness his sons and I were more than happy to engage in every chance we got. He was just the coolest person in my view. 

Maybe it was because we, I, didn’t quite understand the true nature of events that were unfolding. Those became apparent in 1987. I was in Singapore for my A Levels when he was detained.

I knew by then that I would become a lawyer. I knew too that I wanted as much as possible to be able to fight the causes that I believed in. It’s only with his passing that I have come to realise how much he had influenced that choice. How much of a role model he had been.  

I would like to focus on Karpal the lawyer.

I spent some time today meandering through the list of reported cases that Karpal handled. There were almost a 1000 according to the Current Law Journal database. His achievements, and it did not matter whether he won or lost the case, that was decided on the facts, he more usually than not, won the point of law, were like a road map to the evolution of criminal and constitutional law in the country. The right of accused persons to counsel, to the principles underlying the granting of habeas corpus, the standard of proof in criminal cases, the powers of the monarchs in the constitutional framework that governs us, the democratic underpinnings of our electoral system, the fundamental liberties of citizens, these and many other principles he helped clarify through the courts, signpost our nation’s journey through the four plus decades that he was a member of the Bar.

It did not matter that he was constantly beseiged, in one way or the other. It did not matter that the disappointments were many. He held an unshakeable belief in the validity of the system, its value. He had faith in our constitutional system, and measured his value by how he could contribute to that system as a lawyer. In all the tributes from lawyers and judges that have poured in since his untimely passing, the narrative has been one of a ethical, gentlemanly advocate who was skilled and appreciated the nature of the adversarial process.

As I read through his cases this afternoon, I was humbled. The practise of law in this country has become more of a challenge with each passing year. More increasingly, those of us who appear in the courts ask what value we bring to the process, to our clients. But challenging as it is for us, was it less challenging for those who preceded us? Karpal had to face operasi Lalang, the constitutional crisis of 1988 and its terrible impact on the judiciary and the legal system, the 1998 trials of Anwar Ibrahim, the scandals that the V K Lingam RCI brought into focus. He was unfaltering, unwavering in his commitment to his duties as lawyer, citizen and statesman.

It does not mean that he was not frustrated. In the last few years, I began to spend much more time in the appellate courts. There, lawyers spend many hours waiting to be called up. It gave me a chance to talk to him, lawyer to lawyer, though in all honesty, it was difficult not to revert to that fidgety child he probably remembered, and thought of, me as. But the one thing that came through consistently was that we could not give up. We had to soldier on for the betterment of the profession, the nation.

It reminded me of what Raja Aziz Addruse, another towering Malaysian, used to say. We have to keep on knocking our heads against that door. One day, it will open, and some light will shine through.

That is the legacy that Karpal left us.  That is the sacred trust that we carry in his memory. He asked for nothing and gave of himself wholly. 

Let me end with an image painted in words by William Blake.

Tiger, tiger, burning bright  
In the forests of the night,  
What immortal hand or eye  
Dare frame thy fearful symmetry?

Farewell, Tiger of Jelutong.


Sunday, March 23, 2014

A different paradigm

I have been finding writing my monthly opinion piece an increasingly challenging task over the last year. It is not for a lack of material; this country is a veritable goldmine when it comes to things to write about, especially in a column on the rule of law. 

In just the last two weeks, we have seen Anwar Ibrahim convicted of sodomy and sentenced by the Court of Appeal in a manner that has raised some eyebrows (while glasses have been raised in other quarters, I am sure), and Karpal Singh sentenced to a fine of RM4,000 for saying something which, it would appear, can only be thought of and done (but not spoken of) after a hearing in which the prosecution demanded that the court impose a deterrent custodial sentence on the wheelchair bound septuagenarian for his being a threat to the institutions of this country. Additionally, MH370 disappeared in circumstances which almost everyone but the Malaysian government is describing as questionable, and a Deputy Minister is reported to have described non-Malays as being less sensitive to the rape of their children. Marquez or Llosa could not have asked for better material with which to paint their caricatures of the banana republics that were often the focus of their writing.

The truth is evident, I think. We have plummeted as a nation to a level of intellectual and moral bankruptcy that is as staggering as it is banal. It seems that we are mired in the political schemes of an elite that no longer cares what others think of it and which believes it is entitled to act in its own interests over everything else. Were it not the case, the Government would be acknowledging that the nation is being brought to its knees, and is staring in the face of potential sectarianism, by the self-serving policies that it continues to impose on Malaysians. 

It can, and probably will for as long as it is able to, continue to delude itself into believing that it is doing more than paying lip service to the legitimate expectations of all Malaysians to social security. Reality however has a tendency to impose itself in the most inconvenient manner. 

For instance, who will provide for the thousands of unemployable Malaysians who have been churned out by academic institutions of dubious value that the regime continues to defend against criticism. If Malaysian universities are not getting into the top ranks of academic institutions internationally, is it not obvious that they are not being managed in a way that they need to be? Would it not be better to address the real problem rather than deflect the issue by blaming everything but what really needs to be blamed? It may be that Malaysian leaders have over the years have been hardwired to think and act in that way. How else can one explain the Defence Minister retorting: “There is only confusion is you want to see confusion” to suggestions from the international media on MH370. 

What happens when racial policies have left the institutions in the hands of persons simply not qualified or competent to act in a manner their roles require, if that has not happened already? None of us would put ourselves in the hands of a cardio-thoracic surgeon who was not qualified and sufficiently experienced to do what he or she had to do. And yet, the Government continues to do just that with the nation. A cursory glance at the institutions of state would reveal that we do not, as a rule, have the best people for the job in the institutions of the state (this is not to say that all those in positions of leadership are not qualified or competent). I think the Government would be hard-pressed to say otherwise. And yet, these individuals are defining and implementing policies that will have a tremendous impact on the future of this country.

The point is that all of this has been said before. It has become an overarching theme in general, at all levels and in varied forms. Public discussion or agitation of these matters appears to have had little or no effect. Attempts at shaming our leadership have been met with stoic indifference. Efforts to engage in critical discourse have been skewed. In the meanwhile, business carries on as usual. 

It seems therefore that the political elite operates in a completely different paradigm, one in which the notion of subordinating personal interests to those of the community is wholly repugnant. It has perhaps been foolish for us to think or expect otherwise. 

For all that it promises that paradigm is seductive; wealth, influence, power and all that these things bring with them. For some, if not many, these are highly relevant considerations, particularly so in a society that has become ever more obsessed with material gain. Others, sickened by what it is that this country has become, have left or are planning to.

What purpose then does it serve to continue to highlight the deficiencies of the system, or to propose reforms? These efforts are only meaningful if Malaysians as a whole accept the fundamentals as being of universal application, which one system of governance applies equally to all of us, and not selectively.

It is true that the state of affairs in this country has now been brought under international scrutiny by the tragic disappearance of MH370. Describing Malaysia as “an ethnically polarized society where talent often does not rise to the top of government because of patronage politics within the ruling party and a system of ethnic preferences that discourages or blocks the country’s minorities, mainly ethnic Chinese and Indians, from government service”, Thomas Fuller of the New York Times recently noted that “worldwide bafflement at the disappearance of Malaysia Airlines Flight 370 has challenged the country’s paternalistic political culture and exposed its coddled leaders to the withering judgments of critics from around the world.” 

Judging by the response from our Government, it appears that very little will change. 


(First published in The Edge, 22nd March 2014)

Sunday, October 20, 2013

A matter of law, not policy

It looks fairly certain that the decision of the Court of Appeal on the use of the word “Allah” in the Malay version of the newsletter of the Catholic Church, Herald, will be appealed to the Federal Court. It is improbable that the apex court will deny permission to appeal, considering the obvious constitutional implications of the matter.

It is obvious that the Federal Court will have much to consider. Amongst the criticism leveled against the Court of Appeal is the suggestion that the Court had made a policy decision, as opposed to a legal one. Considering the reasons advanced by the judges concerned for their decision, there is substance to this complaint. 

The Court of Appeal was required merely to determine whether the High Court judge had arrived at a decision that was consistent with the relevant legal principles. That decision related to only one question; whether the Home Affairs Minister had exercised his powers in a manner that was justified in law in imposing the condition that the word “Allah” was not to be used in the publication. And while the Court of Appeal would have been right to interpret such law as it was required to for the purpose of deciding whether the High Court judge had erred, it ought not have gone so far as to effectively develop a legal framework for the protection of Islam. 

Settled principles of law dictate that the courts are not to substitute the decisions of administrators with those of the courts. All that the courts can do in affording judicial review is to consider whether the administrator concerned, in this instance the Minister, had adopted the correct decision making process, and whether the administrative decision challenged was reasonable having regard to the circumstances as they stood at the time the administrative decision was made. These legal constraints were in fact recognised by the judges of the Court of Appeal who discussed them in their respective judgments.

In this context, all that the Court of Appeal ought have done was to enquire into the reasons advanced by the High Court to quash the decision of the Minister. These reasons ultimately centered on one primary conclusion; that the Minister had no reasonable basis on which he could objectively conclude that the use of the word “Allah” in the Herald would be a threat to public order.

A review of this conclusion by the Court of Appeal would have entailed an objective consideration of the basis of the Minister’s decision, that is the factual considerations that the Minister took into account at the time he made the decision, with a view to determining whether his decision was one that any reasonable person in the Minister’s shoes would have made. For this purpose, negative reactions on the part of the public to the decision of the High Court were not relevant, it being a matter of established principle that the popularity of a decision of the courts is not the yardstick by which the correctness of that decision is to be measured. Were it otherwise, many a litigant would arrange for public controversy in order to gain a foothold in the appellate courts.

It must be appreciated that at the most fundamental level, the complaint of the Catholic Church was that the condition impacted on the right of the Church, and the members of its congregation, to express themselves fully. And while it is tempting to characterise disputes of such a nature as concerning the freedom of religion, this was really a case about the freedom of expression. From a constitutional standpoint, it is established principle that all Malaysians have the right to say what it is they want save where their right to do so has been limited by law on grounds of national security and public order. Such law must however be reasonable, and the restraint on expression limited to only what is essential to achieve the aim of the law. These constraints apply equally to any administrative action sanctioned by law.

It is telling that the current Deputy Home Minister has sought to justify the decision of the Court of Appeal by limiting it to publications by the Herald. And while the Deputy Home Minister may have a point, the case concerns only the permit to publish the Herald and nothing else, the assertion that the word “Allah” can still be used in Malay language bibles in East Malaysia wholly undermines the position taken by the then Home Minister that the use of the word by the Herald would result in public disorder. The Church has after all accepted that the Herald can only be circulated to the Church’s congregation.

Seen in this light, there was no necessity for the Court of Appeal to enquire into, and conclude on, what was integral to the Christian faith. It is not for the courts to define what is and what is not essential in any faith and I can see no reason for any superior court in this country to ever take such an extraordinary step. Not only is such a course wholly inconsistent with the various dimensions of the constitutionally guaranteed freedom of religion, it is unnececessary. 

Any concerns about the intersection of the free practice of religion and public order are addressed by the constitution itself. The freedom of religion is expressed in a manner that permits the legislature, and consequently the State, to encroach where required to by the dictates of public order. It is unnecessary for the courts to determine whether a particular practice is essential to a particular faith, or not, in such cases as the constitution focuses attention on solely the maintenance of public order. The courts are as such only required to consider whether a particular course of conduct on the part of the administration is justified by reference to the public order concerns asserted.

Even in those limited cases where a court is called upon to determine a question of fact that relates to the practice of religion, and in my experience this occurs exclusively in the Islamic sphere as, unlike the other religions of this country, the Islamic faith is regulated by law, the Courts only go so far as interpreting codified law, often with the assistance of experts.  For instance, in two matters that came before the Federal Court several years ago, it was contended that the legislature of the states of Terengganu and Selangor had acted without power in creating certain offences. The Federal Court availed itself of the views of experts in order to determine what the phrase “precepts of Islam” in the constitution meant. Similarly, in the early 1990s the Penang High Court took into consideration a fatwa in determining whether a person had died a Muslim.

It is unfortunate that the Court of Appeal felt it necessary to go as far as it did. Respectfully, the court appears to have substituted its own decision for that of the Minister, albeit to the same end. This was unfortunate, not least because the decision has fueled fears concerning efforts to establish the primacy of Islam in the public sphere and the implications this has. It has also overshadowed the emphatic declaration by the Supreme Court in 1988 that the public law of this country is secular.

Stripped of political implications, the case is one that is easily determined. It was made controversial by certain quarters for their own purposes. Regrettably, in failing to recognise the controversy for what it was, the Court of Appeal may have inadvertently laid the ground for the further machinations of those who would divide this nation.

It is my sincere hope that the Federal Court will appreciate that the case was only ever about whether the “Allah” condition was warranted, reasonable and accorded with the constitutional guarantee of free expression. Whatever the decision the court ultimately arrives on this narrow issue, it is imperative for the court to deal with the highly divisive policy dictates of the decision of the Court of Appeal. It can do so by underscoring that religion is a personal matter and theological debates cannot, and must never, be brought into the courts. 


(First published in The Edge on 19.10.2013)