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Saturday, August 11, 2007

Article 11 Meets Select Committee On National Unity

'Article 11', the coalition of NGOs was invited by the Parliamentary Select Committee On National Unity to make representations before the Committee on 6th August 2007. The coalition attended and made representations through Zainah Anwar and myself. A statement was submitted. The full text appears below.

Statement By “Article 11”
Hearing By Parliamentary Select Committee On National Unity (06.08.2007)

Article 11’s position from the outset, as has been the case for the civil society organisations that make up the coalition, has been the position declared by HRH The Regent Of Perak as reported in the media on 6th August 2007.

This position is:
  • that the Federal Constitution is the supreme law of the land. All laws, state actions and policies are to be tested against the Constitution. If they contravene the Constitution, these laws, actions and policies are void;
  • Malaysia is not an Islamic State. Our Constitution and a binding decision of the Supreme Court have rejected any such notion. The public, and as such the governing, law of this country is law premised on universal values equally cherished and applicable to all; and
  • The Rule of Law is essential to the continued progress and development of this Country. The Rule of Law must be blind to ethnic and religious influences. The special status of Malays, natives of Sabah and Sarawak and the place of Islam in the Federation have, and should have, no bearing on the Rule of Law. The laws of Malaysia must serve all Malaysians.
Article 11 was and is concerned that:

  • the 3 points stated above have not been fully appreciated by those charged with responsibility amongst us. There has, sadly, been an undermining of the Rule of Law in a series of actions and decisions of the Court that have run counter to the letter and spirit of the Federal Constitution including:
  1. the case of Kaliammah, the widow of the late P Moorthy;
  2. the case of Lina Joy; and
  3. the case of Subashini.
  • These decisions have not only resulted in injustice to the parties concerned but have also laid down precedents which have created deep rifts in society. The fact that these decisions have been justified by reference to the Constitution makes the situation more alarming. It points to:
  1. a state of affairs where the aspirations of some, in particular the aspiration for a greater role for what some perceive as precepts of Islam in public life, have become a reality through processes which are not constitutional or even legal;
  2. these unconstitutional processes include:
  • the irresponsible and reckless declarations by some quarters as to Malaysia being an Islamic State despite this not being the case and the stifling of free debate over such declarations (This should be compared and contrasted to the approach taken by the Government in 1988 when the then Chief Justice was removed on the following ground:
(charge 4) - Your attempt to restate the law generally along Islamic legal principles ignores the character of Malaysian society as one which is multi-religious and multi-racial with cultural differences. No responsible Government can allow the postulation of such views by the Head of the Judiciary without cause for consternation among its non-Muslim population. Furthermore your statement violates established principles of judicial interpretation widely accepted in the courts of Malaysia and in the Commonwealth.;
  • the re-writing of history to attempt to justify claims, for political reason or otherwise, that Malaysia is an Islamic State and a greater role for the perceived precepts of Islam in public life including declarations to the effect that this nation was founded by Muslims (consider the Government response to a written query by SUHAKAM as to Malaysia being an Islamic State, (published in SUHAKAM Annual Report 2003, pp 285-286) in which the following points were made);
o the nation was founded by Muslims;

o the Head of the Nation is a, and the government is in the hands of, Muslim(s);

o the majority of its citizenry are Muslims and most of their cultural and social elements are influenced by the culture of Islam;

o the Islamic umah (in Malaysia) is free to abide by Islamic Law (‘Syariat Islam’), and are even supported in this regard by the Government;

o systems to increase religious observance of ‘munakahat’ (religious rules pertaining to marriage) and ‘muamalat’ (rules pertaining to societal issues) are implemented all over the nation;

o Islamic education is taught from primary school to institution of tertiary education level and its quality are continuously being improved;

o The existence of Sharia courts and Sharia laws; and

o The existence of other Islamic institutions which expand the greatness of Islam.
  • continued use of divisive labels such as ‘Islamic State’ and the emphasis on the greater role of the precepts of Islam without regard to the sensitivities of all concerned communities nor of the ‘policy’ positions such declaration will take in the minds of lower ranking bureaucrats and administrators. Bearing in mind the close link between ethnicity and religion for the Malays, and the prevalence of Malays in the public administration, this has resulted in discriminatory practices that run counter to any notions of unity and equality. This takes on particular significance in the face of assertions of ‘Ketuanan Melayu’; • as a consequence of the foregoing, or otherwise, this has resulted in an increasing defiance of the Constitution and oaths to uphold the Constitution by public administrators;
  • the use of inflammatory language and religious incitement has not been adequately curtailed. Conversely, they have been allowed to shape government response to the subject of such language and incitement. Illustrating this is the directive to Article 11 to desist in its efforts to promote the Constitution and constitutionalism as a consequence of hostile and untruthful distortions that were given validity through State action. It is significant that much of what Article 11 stated or sought to state was given prominence on the front page of the New Straits Times on 06.08.2007 when declared by HRH The Regent of Perak;
It is imperative therefore that:
  • all State actors be made to appreciate that the Constitution is the supreme law;
  • the supremacy of the Constitution be reaffirmed;
  • mechanisms be put in place that ensure the appointment of persons to public office who are qualified and competent to discharge their functions and duties in a manner contemplated by the Constitution. The lack of such individuals in the public administration has been a key factor in the process that has led us to where we are as a nation. This can be corrected as long as there is adequate political will; and
  • the Attorney General’s Chambers be called upon to determine the state of affairs and make such recommendations as are necessary to strengthen the existing Constitutional structures if there is a need for the same. Such deliberations must be made public and be conducted in conjunction with civil society to ensure that all interests are taken into consideration. It is disconcerting to note that as of late the AG’s Chambers appears to have been at the vanguard of a push towards Islamisation. This is illustrated by the fact that the web-site declares as a mission statement the efforts of chambers to ensure that all civil laws are syariah compliant.
Article 11 wishes to express its gratitude for the opportunity afforded to it to present its views and to make representations. Article 11 also wishes to reaffirm its commitment to nation building and the Federal Constitution in light of the call by HRH The Regent Of Perak that civil society stands up and be counted.



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