Interlude

Sat with Rocky and the gang on the upper balcony of the Press Club last night. The Jalur Gemilang unfurled, carried on the back of a gentle breeze. Or perhaps on the voices of the young journalists who sang with their hearts.

Our future is in the hands of the young. Their future is something that only we can guarantee.

Defamation And The Blogger

Defamation Proceedings

There is a fallacy that needs to be addressed. Blogging on the internet is not immune from legal process. Like other publications on the internet if a blog publishes defamatory material the blogger responsible for the publication, and even the host of the blog, can be subjected to defamation proceedings.

I believe that Dr Mahathir’s promise of internet freedom could only be taken as being a promise that the Administration would not restrict internet freedom. Based on this promise, Malaysians could reasonably expect that no criminal proceedings are brought against persons publishing on the internet and that no steps will be taken which have the effect of impeding free access to the internet.

I do not believe that Dr Mahathir’s promise was a licence for bloggers to publish material in a reckless and irresponsible manner. You can imagine the extensive damage that could be done if this were the case. For as many bloggers who publish responsibly there are that many more who do not, hiding behind their anonymity and their mistaken belief in immunity. Their attacks on the reputations of individuals and businesses do have an impact and it will sometimes be necessary for those who have been attacked to take steps to vindicate themselves.

This is at the heart of defamation proceedings, the desire to clear one’s reputation and achieve vindication. In more traditional systems, such as in the UK and Malaysia, an award of damages is seen as being the best means of vindication. The award is intended to represent to the world at large the inaccuracy and lack of truth in the offending statements. They are also intended to deter, through a ‘chilling effect’, publications of a similar nature. The courts do not order the publication of an apology, the failure to voluntarily do so by the wrongdoer when asked being one of the factors taken into consideration in quantifying damages. In other systems, such as in Germany, the courts do order the publication of an apology.

Seen from this vantage, those who sue for defamation cannot be faulted for so doing where there is legitimate basis. We have heard of and seen how defamation proceedings have been invoked as means of pressure and intimidation, the complaint most commonly being made with regard defamation proceedings in Singapore. Where done with that intent, the proceedings could be said to have been brought for collateral purpose and despite the plausible legal basis for doing so, could be seen as being ‘less legitimate’. This too is a factor that the court can take into consideration where damages are concerned.


Blogging And Nation Building

However, in the Malaysia context, the analysis should not end there. I believe that there is a social and moral dimension to the discussion. This dimension is founded on the crucial role that blogging plays in socio-political Malaysia and in nation building efforts. There are several ways this can be approached.

First, the reality is that press freedom in Malaysia is limited. The need for permits and the threats of closure and prosecution are not conducive, even where there is editorial will for freer publication. As such, information is available to the public on a limited and ‘structured’ basis. Responsible blogging allows for gaps in information to be filled and the establishment of a more informed polity. In this vein some blogs have, in a manner of speaking, become alternative journalistic institutions. There are of course numerous other blogs that are purely of a personal nature and do not fit into the scheme of things as outlined here.

Second, we cannot deny that the fact that Malaysians having had to exist in a ‘climate of fear’ since, at the very least, 1987 has resulted in an inability on the part of many Malaysians to engage in critical and constructive of analysis on topical issues. The ‘de-education’ of Malaysians by the education system has worsened this state of affairs. The democratic space that blogs open up and the education in logic, critical analysis and constructive dialogue are invaluable.

Third, we similarly cannot deny that race politics and its consequences has also caused a continuing brain-drain. This has seriously undermined the quality of the views expressed and allowed for the insulation of an Administration that is clearly not the best qualified for that role. The blogs have allowed for an involvement of Malaysians living abroad and a harnessing of their views.


Competing Interests

Keeping the foregoing in mind, it becomes apparent that where suits are brought against blogs that are recognized as playing a crucial role in nation building, then it is the nation building process itself that is being threatened.

Having said that, from time to time, as with all publications, offence will be caused. Aggrieved persons will have rights of action and will be legally entitled to recourse and vindication. This points to a need on the part of bloggers to be more responsible and professional in the way material is published.

Equally however, the evolution of the Malaysian blogsphere and the crucial roles that blogs and bloggers play point to a need for greater appreciation of how vital they are for nation building. I do not think I am overstating things when I say that Malaysia is in a state of crisis, politically and economically. The freedom to access information is more vital than ever.

As such, I believe that a balance has to be struck between these two competing interests; personal reputation and integrity on the one hand, and nation building on the other. We cannot lose sight that in as much as vindication may be achieved, the chilling effect may have far wider, and unintended consequences.

MIS

Where Were You

Where were you
When the machete swung
And walls were painted Red
With the blood of innocence

Were you in hell
Speculating, trading
In the currency of life and soul
Negotiating your immortality
A place of honour in posterity

Or were you in heaven
Between the thighs of the whores
For whose whispers
Of transient love
You guaranteed lifetimes of pain

Where were you
When hope was cleaved, hacked
From mind and breast
When the rivers of blood
Swollen with the tears of a nation
Burst their embankments

As that machete swung

Watch This Space

The NST and individuals in senior positions with the newspaper are suing Jeff Ooi. I am one of the lawyers representing Jeff. I was informed by the NST yesterday that it will not be running my column until the case has been brought to an end. I do not understand the reasoning underlying this decision but of course accept it as it is for the NST to decide who writes for it.

MIS

Extremism Does Not Define Religion

(Published in the New Sunday Times, 14th January 2007 as "Extremism, Not Religion, Begets Violence")

I HAD not been told that my workshop was potentially the most controversial. At an international conference in Prague last November, to commemorate the 25th anniversary of the United Nations' Declaration on the Elimination of Intolerance and Discrimination Based on Religion of Belief, I was co-facilitating a workshop on the relationship between the freedom of religion and the freedom of expression.

My presentation focused on the twin pillars of freedom of religion: The freedom to profess (or not to profess as the case may be) as a personal or internal expression of one's belief; and the freedom to manifest, or externally express that belief through an act of worship or by not worshiping. The experience I had gained, in cases dealing with the denial of the freedom of religion, had led me to understand that while no one could impede another's internal expression, much could be done to restrict the manifestation of that belief.

The nuances of expression in religion must be explored at all levels, from the right of the individual to profess and practice a religion of choice, to a state's justifications for clamping down on free discussion concerning religious practices. My involvement in various efforts has led me to the conclusion that, other than to genuinely preserve public order, free expression on matters of religion is vital if a community is to defend against intolerance and extremism. This is at the heart of the 1981 Declaration.

Out of the 50 participants in our session, more than half were diplomats. And everyone wanted to talk about the cartoons of the Prophet Muhammad (p.b.h.) and the controversial speech by the Pope. The European diplomats were keen to defend their position on the freedom of expression underlying these events. Representatives of Islamic countries were, on the other hand, driven to point to the insensitivity and the underlying insult. All indicators pointed to a potentially explosive morning.

As my co-facilitator, a senior director from Amnesty International, and I began to navigate through the session, it became apparent that in order to ensure a meaningful dialogue we needed to ensure that the language was kept civil and the concepts objective.

This was to prove challenging as one of the first salvos into the fray was from a British academic. He scathingly made two points. First, that Islam demanded sensitivity and acceptance of its particular idiosyncrasies but was unwilling to reciprocate with tolerance and understanding. Referring to the cartoon episode, he pointed out that the Islamic world had not attempted to understand that in allowing for the publication, the publisher may not have intended to insult Islam but rather uphold a universal freedom of expression. The violence of reactions was proof of the rejection of any other view. In this vein, secondly, he went on to characterize Islam as a religion of violence.

Objectively, one could see why he might have thought so. I do not mean that he was right in his conclusions. The sad truth, however, is that a lot of violence is done in the name of Islam. The violence is not limited to acts of terrorism but includes aggression, abuses of power and insensitivity. I have seen some of that violence first hand. There was, as such, a basis for his skewed perceptions of Islam.

However, not everyone in the room was prepared to consider his position with the necessary objectivity. The outrage was immediate and loud. This was ironic as it served to reinforce the point the academic was making. Where were the objectivity, rationality and broad-mindedness that one associates with Islam, I found myself wondering.

Amidst the protests, I thought it might be useful for the others to hear a clarification of his stance. I believed that he might not be anti-Islamic and that he might sincerely hold the view that he was espousing. I also recognised that there was a possibility that he could not see that he was confusing issues, much as the others were. The premise of his argument was tenuous at best; the same reasoning could be employed against any religion. World events, past and present, reflect that.

There was, however, some value in the academic's point of view. It highlighted the fact that the use of religions, all religions in one form or the other, to justify violence pointed to a single painful truth: Religion is too often misused for political purpose. Such misuse is made possible by a propensity on the part of some towards extremism. In this way, extremism is harnessed not for religious purpose but for political purpose.

Perhaps it was more important then to understand why extremism existed.

Exploring this notion, I asked the academic whether he could agree that it was extremism, as opposed to religion, that led to violence. He was gracious enough to agree, conceding the point immediately. He also agreed to the suggestion that in allowing for diversity, religions were not monolithic. This, he further conceded, disallowed any generalizations about any particular religion.

Muslim participants were quick to agree as well. I believe their willingness lay in recognition of the fact that the violence we have seen done in the name of Islam - from effigy-burning to death threats to killings to terrorism - cannot by any stretch of the imagination be seen as being definitive or characteristic of Islam.

This agreement was echoed by other participants from different backgrounds, some completely secular or atheistic. Discussing the matter further, the workshop very quickly agreed that extremism was largely caused by factors that were independent of religion. Core amongst these are poverty, a lack of education and the denial of social justice. These factors have allowed for the entrenching, and misuse, of extremist thought and the galvanizing of extremist action.

Recognising this, the workshop readily agreed that the fight against extremism was one that had to focus, as a global concern, on eradicating the root causes of extremism.

The workshop ended on a high note, its recommendations a testament to the fact that more often than not, so many of us are shackled by fear and prejudice. Constructive and meaningful dialogue, and the truths it bears, can be achieved where there is the will to do so.

MIS

Jurisdiction And Law: Syariah Courts

The syariah courts have no jurisdiction over non-Muslims. This is beyond doubt. In allowing for the creation of the syariah courts, the Constitution limits its jurisdiction to persons professing the religion of Islam. This has been judicially recognized by the Supreme Court (a decision handed down in 1994 in Tang Sung Mooi).

What then do we make of suggestions that non-Muslims should appear before the syariah courts in disputes involving Muslim and non-Muslim parties? My view is that the suggestion is wholly untenable and has no basis in law. There are several reasons for this.

First, as noted above, the Constitution has limited the jurisdiction of the syariah courts. The jurisdiction of a court is, in effect, the mandate of the court. This mandate, given or conferred by law, delineates and defines the types of matters that can be dealt with by a particular court. For instance, it is abundantly clear that a syariah court has the jurisdiction and power to deal with the dissolution of marriages solemnized under Islamic law.

The Constitutional limitation is, in general, mirrored in legislation that vests jurisdiction and power in the syariah courts. This legislation usually provides for situations where all parties are Muslims.

Second, and as a corollary to the first point, the syariah court only has jurisdiction over and the power to deal with matters that fall within its jurisdiction. This jurisdiction is given, or vested, by law enacted by the State Legislative Assemblies or, where the Federal Territories are concerned, by Parliament. It is crucial to take not that until and unless law is enacted, there is in effect no law to be applied. The common fallacy where the syariah courts are concerned is that these courts apply Islamic law, syariah or hukm syara’, in the wider sense i.e. principles of Islamic law as determined by the ulama and set out in scholarly texts. This is not the case. The Constitution, in defining ‘law’ does not include the wider syariah corpus.

It is the erroneous assumption that ‘unwritten’ (or un-enacted) syariah law or the established principles of hukm syara’ can be applied in the syariah courts that has led to the insistence that some matters must, or can only, be dealt with by the syariah courts, notwithstanding the absence of any written law to that effect. This assumption in turn has been used to justify a position that has led to a denial of access to justice for non-muslims caught in so called conflict – syariah in tension with civil – situations.

As an attempt to address the obvious injustices, the suggestion has been made that non-muslims appear before the syariah court. As is pointed out below, this suggestion is disingenuous and purports to validate, and entrench further, an entirely erroneous interpretation of the law.

Third, it is a trite principle of law that jurisdiction cannot be enlarged by ‘submission’. A non-Muslim cannot confer jurisdiction on a syariah court simply by agreeing to submit or appear before it. The constitutional limits are explicit and do not provide for such ‘submission’. Any proceedings as such involving non-Muslims in a syariah court are, in my view, unconstitutional and of no legal effect whatsoever.

Fourth, in the ‘conflict’ cases – Rayappan, Murthi or Shamala – the non-Muslims concerned want a remedy. Even if it were possible for a non-Muslim to ‘appear’ before a syariah court, at most this would be to give information to the syariah court as witnesses (although I have my reservations. How is a non-Muslim witness ‘regulated’ by the syariah court. It has no jurisdiction to cite a non-Muslim for contempt let alone the power to administer an oath to such a person). This does not address the grievance of the non-Muslims concerned as the syariah court would not be in any position to grant a remedy to the non-Muslims. This is why I said earlier that the suggestion is disingenuous as it masks the fact that the proceedings will, for all purposes, still be a proceeding involving only the Muslim parties.

Lastly, the suggestion also obscures the fact that in many cases, the issues involved are not within the jurisdiction of the syariah courts. The argument is commonly made that the issues are matters falling within the ambit of the hukm syara’ or syariah law as and such fall wihttin the ambit of the syariah courts' jurisdiction. However as noted above, this is not enough. The Constitution declares itself as the supreme law (Article 4(1)). The provision of Islam being the religion of the Federation (Article 3(1)) has been judicially recognized (Che Omar Che Soh) as being of ceremonial significance and is subject to other provisions of the Constitution.

In this vein, matters strictly within the jurisdiction of the syariah courts would not give rise to any conflict. We never hear of difficulties where divorces or custody disputes between Muslim parties are concerned. Or where there are disputes as to inheritance between Muslim parties. We only hear of difficulties were the syariah court is being pitted against the civil courts, more usually in situations where there are non-Muslim parties involved. This is indicative as, in my view, this reflects an aspiration on the part of some quarters to see an enlarged syariah court jurisdiction. I have said before that there is nothing objectionable about this aspiration. My only concern is that the objective be achieved through constitutional process. Only then will the interests of all parties be safeguarded.

Of Fatwas And Precepts: The Haji Kahar Challenge

Many would have read today of the constitutional challenge that is taking place in the Federal Court. Media reports have been ambiguous, some wholly inaccurate, to the extent that the proceedings and their significance have been somewhat distorted.

Let me first disclose that I act as counsel to Abdul Kahar and the 2 others.

The applicants Abdul Kahar and 2 others have been charged with various offences under the Selangor Islamic Criminal Law Enactment. These in essence go to Kahar and the 2 others having practiced a form of Islam declared to be deviant by the Selangor Fatwa Committee and range from conceiving the purportedly deviant Islam to insulting Islam to disseminating information about the purportedly deviant Islam. The three are challenging the constitutionality of the provisions of law under which they have been charged competency on the basis that the Selangor State Legislative Assembly had no power to enact those provisions of law.


The Law Making Scheme

To appreciate the basis of the challenge, one must first understand the law-making scheme provided for under the Federal Constitution. As a general principle, the laws that are applied in Malaysia are written laws created by the legislative bodies of the nation. Malaysia being a federal system has a central legislative assembly, Parliament, and at the state level, State Legislative Assemblies.

It is not the case that these legislative bodies are free to make law as they please. In order to ensure a coherent system of law-making, the Constitution defines the areas or fields in which these bodies can do so. The Constitution sets out in its 9th Schedule, three lists of competence. List I is the Federal List and provides for matters over which Parliament can make law. List II is the State List and provides for matters over which the State Legislative Assemblies can make law. List III is a concurrent list over which Parliament and the State Assemblies can make law. The provision which vests power in the legislative bodies is Article 74 that, in essence, describes how Parliament makes federal law and the State Assemblies, State law.

It is important to bear in mind that the Constitution does not envisage the establishment of any other legislative body. The Constitution being supreme, law enacted in Parliament or the State Assembly can create no additional legislative body, in whatever form. Having said that, as the Cabinet cannot be expected to make decisions on everything), the power to make decisions of an administrative nature (town planning, building permits, licensing of establishments) is allowed in law to be delegated. With delegated administrative power has come delegated legislative power. We often hear or read of Ministers making regulations. This is an instance of the delegated legislative power. In the case of delegation of legislative power, the delegation is by the legislative bodies. This delegation is more usually clearly expressed in the principal or substantive laws that are made by these bodies.

Delegation of this nature is acceptable in law as long as the delegation is not excessive. It is excessive where the delegation of power is over matters of essential legislative nature that is of a ‘principal’ or ‘substantive’ nature. Where a law has that effect, the courts have struck down these laws for having been made without power (the delegation is considered not to be valid). Put another way, as long as the delegation of power is over matters of an administrative nature, the delegation is good. If it is otherwise, the delegation is considered invalid.

To ensure the proper exercise of power by Parliament and the State Assemblies, the Constitution provides a mechanism by which challenges can be made directly to the Federal Court. This is known as an Article 4(4) challenge. The Federal Court here acts not as an appellate court but rather a review court. This challenge is mounted in two stages; first, an application for leave to commence the challenge and second, if leave is obtained, the substantive challenge itself. This is a rarely invoked process and concerns only the question of power to make law. Other aspects of constitutionality such as whether a law contravenes a fundamental liberty do not fall within the purview of such challenges.


Islamic Criminal Law

It is crucial to note that substantive criminal law falls within the Federal List and is as such, Federal law. This explains why criminal laws in general are contained in Acts of Parliament (as opposed to State Enactments). The State List does however allow for the enacting of Islamic laws over matters enumerated in the list. For clarity, I reproduce below the item (Item 1) that provides for this:

“Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; Wakafs and the DEFINITION and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs; Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques or any Islamic public places of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, Organisation and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law, the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom.”

(Emphasis added)


The portion that I have emphasized sets out the power to create offences where Islam is concerned. This limited extent of this power needs to be appreciated. The State Assembly has only a limited power to create offences where Islam is concerned. The offences that the State Assembly has the power to create are offences against “precepts of Islam” which are not matters falling within the ambit of the Federal List. This second aspect is significant as the Federal List sets out an extensive field of competence where criminal law is concerned. This was the basis of the Article 4(4) challenges brought by Zaid Ibrahim against the Kelantan and Trengganu State Governments over the Islamic Criminal Law Enactments passed by the PAS led governments. Zaid contended that the matters provided for under these enactments were matters within the ambit of Parliament’s power to make criminal law. The Federal Court granted leave to challenge, with the Federal Government supporting Zaid. The substantive challenges were never heard as Zaid recently withdrew the proceedings.

Regrettably, the Constitution does not define the phrase “precepts of Islam” and its meaning has thus far been left open to debate. The ambiguity has become a battle ground in a scenario where the rule of law is becoming ambiguous, in part due to Islamization trends.

It is open to argument that in making Islamic Criminal Laws the State Assemblies have allowed for the creation of offences other than offences against the “precepts of Islam”. Insulting a religious officer, for instance, may not be a nice thing to do but is it an offence against a “precept of Islam”. In the same way, some will argue that acting contrary to a fatwa is not an offence against a precept. In June 2006, the Federal Court heard the main part of an Article 4(4) challenge brought by a man named Sulaiman Takrib in respect of several provisions of the Trengganu Syariah Criminal Offences (Takzir) Enactment as well as sections in the Trengganu Administration of Islamic Law Enactment. There, like in the Kahar challenge, an argument was made to the effect that the Fatwa Committee was making substantive law and that the offences Sulaiman was charged with – acting contrary to fatwa, disseminating material contrary to hukm syara’ - were not precepts offences. Expert opinions were provided one of which (by a learned and recognized scholar base in Malaysia) went so far as to say that the offence were not precept offences. The Federal Court reserved its judgment and is yet to deliver it.


Fatwas As Law

Additionally, it is to be noted that in the general scheme of things, the Fatwa Committee issues a fatwa upon any matter it decides it wishes to (and judging by the range of fatwas issued, these committees do not feel themselves to be restricted. See e-fatwa portal). Upon being so issued, these fatwa have the effect of informing opinion as to what is Islamic or not. Upon these fatwa being gazetted, they have force of law as the enactments more usually provide for gazetted fatwas to be binding on Muslims and authoritative in syariah courts. At no point in time are these fatwa referred back to the relevant State Assembly for its endorsement. The net result is that persons other than those elected for that purpose in effect make law. This, I believe, is not constitutional.

The scenario is made more complicated by the fact that in many instances, the primary offence is one of acting contrary to fatwa. In Selangor, there is a gazetted fatwa that declares haram the act of smoking. This means that any Muslim smoking a cigarette is committing an offence, not of smoking but of acting contrary to fatwa.

Alternatively, fatwas are made the foundation or touchstone of other offences. For example, if a person were to be charged with being a deviant, in order to know whether that person was a deviant, his conduct would have to be cross-referred to a fatwa. In this way, the fatwa features as a crucial aspect of the Islamic criminal justice system, not only as a foundation for prosecutions but also to inform the elements of crime.

It is questionable whether this is acceptable bearing in mind the creation of offences is a matter of substantive law and as such required to be generally within the discretion of Parliament or the State Assembly as the case may be.

In this context, like the Sulaiman Takrib challenge, at the heart of the Kahar challenge are two principal questions of constitutional law. The first is whether the Fatwa Committee of a state can be given powers, directly or indirectly, to create substantive law and in the exercise of that power define Islam and create offences. The second is whether the offences for which Kahar and the 2 others have been charged are “precept offences”.


Alternative Views

It should be noted that some arguments have been raised against the analysis set out above. I think it only fair to set out these arguments so as to allow you to come to your own conclusions.

It has been suggested that the fatwas as in effect made into law by the Sultans of the States as the Sultans have to assent to the gazetting of the fatwas. I do not view this argument as being tenable as the Sultans do not make law.

It has also more recently been suggested that the State List has a provision (item 9) that allows for the creation of offences in respect of any matters in the State List. This argument contends that the power to create offences is not limited to “offences against precepts”. This argument will feature in Kahar and I will not comment on it for the time being.

Lastly, it has also been suggested that the phrase “Islamic Law” appearing in the item reproduced above envisages a field of competence (where Islamic criminal law is concerned) wider than precepts offences. This too will feature in the Kahar challenge and I will refrain from commenting.


Where To From Here

The Sulaiman Takrib and Kahar challenges are crucial cases. Decisions in both these cases will define our constitutional landscape and determine the extent to which Islamic law will impact on our public life. The ramifications are tremendous, and like the Lina Joy appeal, these cases are cross-road cases.

Seemingly recognizing the seriousness of the Kahar challenge, the Chief Justice empanelled a panel of five judges. That all five sat for the leave application makes it all that much more significant. In the Zaid challenges, one judge sat for the leave. In the Sulaiman Takrib case, three judges sat at the leave stage and at the main hearing.

It is imperative that this case is followed as closely as the Lina Joy case was. It is crucial that Malaysians understand the significance of the issues and the ramifications. If any of the counter arguments noted above are accepted, we would see the creation of a truly parallel Islamic criminal justice system. The implications of that remain to be understood.

Smile

Defiant,
you walk
Devouring miles
with
tiny,
unshod
feet
King that you are,
Master of Streets

Nonchalant,
your eyes
Scream
With the muted rage
that reveals
The gambit
That is
Your smile

Desolation,
Incomprehension
As palpable
As the hammer thump
Of that heart
In its fragile cage
of rib and bone,
Are invisible
in their ordinariness
Less winning a habit
than that smile

That practised smile

Your cracked lips,
The treacle of saliva and fear
Are a golden thread
of hope
Spun from ignorance,
kidnapped opportunity
Woven into the fabric
of an existence
Worn, threadbare,
as precious
As the shirt that hangs
from your almost absent shoulders.