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Tuesday, November 25, 2008

Striking A Pose

Striking A Pose (Of Crime And Punishment)

THE recent ruling by the National Fatwa Council on yoga has resulted in a range of responses, from dismay to unqualified and devoted acceptance. I must admit to bewilderment in part because of all the pressing issues that confront Muslims in this country, many of which directly pertain to matters of social justice, yoga was one of the least expected amongst those that demanded urgency. It would have been useful for the Council to have directed its mind and resources to matters of faith that complement efforts aimed at the nurturing of an inclusive, just and compassionate society.

That being said, a ruling has been made. I say ruling because until and unless the ruling is endorsed by the fatwa committees of the various states and the Federal Territories and then gazetted (published in the official government journal), the ruling is not a fatwa.

The administration of Islam is a matter that falls within the exclusive purview of the state under the Federal Constitution and, as such, where fatwas are concerned within the sole domain of the state fatwa committee. In this context the National Fatwa Council allows for policy consultation at a federal level to facilitate a more unified vision of the practice of Islam, each state being legally entitled to pursue its own vision.

Within the state, it is for the Majlis Agama to take steps to gazette a ruling of the state fatwa committee. The resultant fatwa is prescribed by the respective state law as being binding on all Muslims as a dictate of Islam. They are duty bound to abide by and uphold the fatwa unless permitted by Islamic law to depart from it in matters of personal observance, belief or opinion. The burden of establishing that an exemption is permissible is however on the individual as state Islamic criminal law provides that acting contrary to fatwa is a criminal offence.

It is significant that despite a fatwa being for all purposes and intents a ‘law’ the breach of which is punishable, there is no need for rulings to be referred to the State Legislative Assembly before they are gazetted and become binding as fatwa. Seen in this light, it could be said that the Majlis Agama and the fatwa committee are therefore legislating.

The pressing question arises as to how this can be sanctioned in view of our Constitution having put in place a system of law-making centred on legislatures constituted by duly elected representatives. The making of binding fatwa in the manner provided for is a glaring anomaly from the dictates of the democratic processes enshrined in the Federal Constitution.

It is this very concern that drove a team of us to taking up two challenges in the Federal Court involving persons allegedly having been involved in deviationist Islam not too long ago. Amongst other things, our clients had been charged with acting contrary to fatwa; charges that for the reasons explained above took us to heart of law making.

In its decision earlier this year, the Federal Court disagreed with us and upheld the validity of the fatwa making process. With respect, in so concluding, the Federal Court in effect allowed for a subverting of Parliament, and the accountability the institution is intended to promote, in this extremely crucial aspect of the constitutional framework by giving licence to the religious bureaucracy to autonomously fashion a parallel system of law outside the established legislative structure and the supervision it envisages. I clarify here that I do not intend to cast aspersions on the qualifications, character or aims of the members of the respective majlis-majlis and fatwa committees. The implications of the decision of the Federal Court are however not easily reconciled with the very purpose of legislative power being constitutionally entrenched in the legislature, and the value of this entrenching to wider society.

The rakyat elected representatives to the legislature to ensure that our respective views were presented and taken into consideration as well as to allow us to have oversight over the processes that ultimately shape our lives. Our representatives should be making law as well as overseeing its making.

Legislature cannot be permitted to delegate its essential legislative function in any field, even to a well-intentioned specialist committee. This is not just about Islam; it is equally about all the other fields that specialist committees might be created for in the same way.

The limited numbers of a committee cannot compare to the full weight of the august houses of Parliament. That some of those in parliament may be of questionable competence, some might say sanity, is of no relevance as it is the underlying principle that is in issue. Allowing for a divesting of legislative power and control is most certainly a state of affairs that will wholly undermine democracy and true nation building.

Consider it from a different perspective. Would a State Legislative Assembly have enacted the offence of practicing yoga? I have my doubts, not least for the heated debates that the tabling of a bill to create the offence would have resulted in. If this were the case, then how is it that the system allows for the criminalising of yoga by the ruling of a committee and the mere gazetting of that ruling?

On the other hand, if a state fatwa committee were to produce an expert opinion that was then made the basis of a bill tabled in legislature, would it not be conceivable that with logic and reason, the bill would be carried? More work might have to be done, as explanations would have to be made that much clearer and factual basis of concerns set out coherently. However, considering that laws are being made, these are necessary prerequisites in any event for such grave efforts.

In the meanwhile I wait with bated breath for the next fatwa. Who knows, it may be about corruption.

(Malay Mail; 25th November 2008)


Subsequent to this article being submitted for publication yesterday, the Perak State Religious Department has acknowledged that it is necessary for His Highness the Sultan of Perak and the state Fatwa Committee to consider the matter before the policy can be implemented in the state of Perak. The Sultan of Selangor has also indicated reservations (see here). The gazetting of a fatwa requires the assent of the Sultan.

Tuesday, November 18, 2008

Policing The Constitution

Policing The Constitution

(An Open Letter To The Inspector General of Police)

Dear IGP,

Let me firstly acknowledge that yours is not an easy responsibility to bear. The task of policing is certainly a difficult one. It calls for the fine balancing of the many different interests and expectations that will allow for security without undue compromise of the freedoms that mark this nation as a democracy. Far too often, the choices that have to be made are those that will be remembered more for their being unpopular than their having been effective.

As a lawyer, it strikes me that there is a way to make navigating these difficult waters easier, if only slightly. The power to police stems as it does from law enacted for that purpose. The Police Act and the Criminal Procedure Code are not only the maps by which you chart your course, they are also the justification you offer for actions that might be viewed as unfair. After all, the Royal Malaysian Police does not legislate; it merely enforces the will of the legislature as codified into the statute books.

This approach could also extend to areas where the law vests police officers with a discretion the exercise of which is a matter than can only be determined by reference to the particular circumstances of a given situation. Though in these cases the particular legal provision in issue may be silent as to how it is a police officer is to act, it should not be overlooked that the Constitution is the supreme law of the land. In enumerating the fundamental liberties of citizens, it has provided the context and limits of enforcement. Seen in this light, it become evident that the primary role of the police force is to ensure that the constitutional framework is maintained as it was at all times intended to be: one that guarantees the freedom for Malaysians to aspire to be all that they are without fear of reprisal.

It is from this perspective that I question the wisdom of your policy on the matter of public assemblies.

I acknowledge that the legislature has by virtue of the Police Act imposed the requirement of permits for gatherings in public places on pain of sanction. I note however that the police force has taken it upon itself to exclude certain types of gatherings from the requirements of the Police Act. This seizing of discretion, for it could be said that the statute allows for no such discretion, is understandable for were it to be otherwise we would see many a family arrested for picnicking in public parks. By any definition they would constitute the assembly of three or more persons in a public place the Police Act targets.

This however makes the point that it is not necessarily the case that all gatherings in public places without permits are unlawful assemblies; it is only those that the police force deems such that are. Experience shows that this has however been markedly selective.

Compare, for instance, the experience of protestors outside the Bar Council and UITM students demonstrating against the admission of non-Malays this August with the treatment of participants in the anti-ISA vigil held earlier this month. While the third event had dispersed, spontaneous peaceful gatherings of small groups of citizens were acted against with force and culminated in numerous arrests. Though the earlier two events were by any comparison that much more aggressive, no action was taken despite the protest outside the Bar Council having disrupted a closed-door event.

Circumstance suggests that your officers believe there to be basis for their action and for treating events differently from one another. Objective scrutiny point to that basis being an apparently misguided notion as to what it is that constitutes a threat to public order. It appears that the third event, and others like it, was perceived as being disruptive of public order not so much for the event itself but rather the anti-ISA message it sought to convey. It seems that this was considered to be dangerous for its seemingly anti-establishment sentiment, a conclusion reinforced by conditions imposed by the police for a similar event held last Sunday. These included prohibitions on the lighting of candles, the wearing of anti-ISA t-shirts and the making of any statements supportive of the release of detainees.

In contrast, the first two events did not convey any such sentiment.

If this is in fact the case, that policy needs to be reexamined. The approach it entails is grossly unfair. It also exposes the police force to attack and criticism in a manner that is unnecessarily undermining of respect for the institution at a time when more needs to be done to shore up public confidence

It is not for the Royal Malaysian Police to police thought and speech through preemptive enforcement; that is not its fight. Malaysians are guaranteed the freedom of thought in as much as they are guaranteed the right to express themselves, either alone or in peaceable assembly with others. The nature of views expressed is not a matter for the police force to concern itself with; ensuring that Malaysians are free to avail themselves of the guarantees afforded to them under the Constitution to live out democracy as it was intended is.

Malik Imtiaz Sarwar

(Malay Mail; 18th November 2008)


Tuesday, November 11, 2008

Keeping The Faith

Keeping The Faith

Over the weekend, the blogosphere was filled to the brim with posts and comments concerning Justice Syed Ahmad Helmy’s decision to release Raja Petra.

Many expressed surprise at the Judge having had the fortitude to rule as he did, going against the grain not being the easiest of options. Some were unfeelingly dismissive of the decision and its significance to Petra and his family, and to society as a whole. One of the theories advanced was that the decision to release Petra was engineered by Prime Minister Abdullah Badawi as part of a campaign of political maneuvering against Deputy Prime Minister Najib Razak. Others cynically suggested that it was typical of the lawyers involved, myself included, to have made self-servingly positive statements concerning the Judge and the decision as we had won the case.

These comments made me wonder. Have we really been so thoroughly wrung that all hope and optimism have been bled from us? Are we so broken that we are incapable of appreciating the tiny and not so tiny miracles that happen in our lives every day?

Last Friday, as the first sob of joy escaped captivity in a courtroom that had been stilled by uncertainty, as the first tears of redemption rolled down cheeks that had been numbed by countless disappointments, I was reminded again that it is our collective faith in what is right that has consistently forged the way forward. As the cheers erupted from the many Malaysian throats present, and the Judge attempted to restore order, I understood that as our ties together as a community have strengthened so too has that faith. I saw, as Alice Walker pointed out recently to Barack Obama, it is we who we have been waiting for.

It does not matter what those who scoff say, justice was done last Friday.

No matter what we call it or how we dress it up, detention without trial is cruel. Stripped of everything, a human being has only his or her dignity and conscience. It is to these most fundamental of elements that the right to fair trial and the presumption of innocence speak. It is these elements that preventive detention aims to destroy. They are torn apart in the same way that the lives of those detained and their families are.

The due process of law ensures that the number of people who get shut away erroneously is small. A person charged with a crime in this country has at least two tiers of appeal. His conviction would have been scrutinized at least three times by several judges. A person detained without trial is detained with the stroke of a pen wielded by a Minister who is presumed to be objective enough to do what he needs to do in a way that ensures there is no possibility of error.

Where is justice? If the reasoning of the Minister is to be accepted, it does not enter the picture.

The Minister contends that detentions are a matter left by the law entirely to his subjective discretion. This means, he reasons, if he decides that an individual is a threat to national security, a court has no option but to accept this as a truth. This being the case, there is no need for the Minister’s conclusion to be justified. Extrapolating this analysis, the Minister is not required to argue that the justice of the case favours continued detention without trial. Justice is as such not a feature of the analysis and injustice an irrelevant consideration.

The Judge obviously felt otherwise. His observation, made in the course of his reasoning, that the law could not be understood as empowering the Minister to arbitrarily detain individuals for reasons that had nothing to do with the statute such as, for instance, simply having red hair, was illuminating.

Was his reasoning correct? I would like to think so. The Judge merely applied the law as framed by the legislature and in doing so gave expression to the intention of the drafters of the law: limiting preventive detention to the kind of exceptional “terror” situations described. The Federal Court may however take a different view, just as it may of the points of submission we made that the Judge disagreed with. We will get to argue these again if an appeal is lodged.

Was I happy that the Judge decided the way he did? I would have been foolish not to be, not least for Petra being reunited with his family. Do I think positively of this Judge? Most certainly for having shown me that it is not audacious for any of us to hope as we do. Would I have been disappointed if we lost? I would have but far less than if the Judge had not given us the excellent hearing he did. As we left court on the day we presented arguments, all of us understood that we had had the hearing that all of us wanted: a fair one.

And to those who suggest that the Judge was influenced, I say this. You do a disservice to yourself and to this nation. Had you been in court, you would have seen as we did a Judge keeping the faith.

(Malik Imtiaz Sarwar was counsel to Raja Petra Kamarudin. He is the current President of the National Human Rights Society and blogs at


Friday, November 7, 2008

Free RPK: Habeas Granted

We won.

Decision handed down today by Syed Helmy J. Habeas corpus granted, RPK to be released forthwith. He is to be produced before the Shah Alam High Court by 4 pm today to allow the Court to direct the release.

Credit to the Judge, who was fair and judicious in his approach (he disagreed with our argument that section 8 is unconstitutional), the team of lawyers who put their heart and soul into the hearing and our opponents, Tuan Wahab and Tuan Dusuki, who were professional in their outlook and approach.


Tuesday, November 4, 2008

Finding Equilibrium

Finding Equilibrium

Zaid Ibrahim’s impassioned call for a rejection of race politics last Friday at the LawAsia conference is one that deserves its place in history. His plea for the restoration of democracy and the Rule of Law has reverberated throughout the nation.

This is not surprising. Zaid’s message is rooted in an obviously deep and heartfelt commitment to the nation and the interests of all its citizens. Where the Malays are concerned, he is strident in his rejection of policies that have left the community struggling against a siege mentality that robs it of its ability to meet the challenges of a globalizing world. As he observes, the “Malays are now a clear majority in numbers. The fear of their being out numbered is baseless; they are not under siege. The institutions of government are such that the Malays are effectively represented, and the there is no way the interest of the Malays can be taken away other than through their own weakness and folly.”

Equally forceful in his defence of non-Malay interest, Zaid laments attempts by politicians to do away with a social contract that guarantees “equality and the promise of the Rule of Law” in favour of one that promotes a supremacist ideology that ultimately serves only the interests of an elite. This, he opines, has left the nation deeply divided and cut off from the democracy and Rule of Law so vital for the sustainable and inclusive development that all Malaysians need, irrespective of race and religion.

Put another way, Zaid has given voice to what it is most Malaysians think: that we need to be united to face the future. The founders of this nation understood we could, appreciating that there was no reason for fear and that we had every reason for mutual respect and dignity. Fear mongering has however kept us apart and from seeing the threats that confront us, and what we need to do to counter them.

Zaid’s message is persuasive for its simplicity and self-evident truth. He must be credited for having been able to say what had to be said, as it needed to be said.

If there is any doubt as to the legitimacy of the viewpoint expressed, then we need only consider the reactions from senior UMNO members entrenched in the leadership structure of the party. These reactions not only make it evident that Zaid hit the nail on the head, they also show why it is UMNO and the Barisan Nasional need to seriously reconsider how to make themselves relevant. Two responses are illustrative.

Perlis UMNO liaison chief and former Menteri Besar Datuk Seri Shahidan Kassim had this to say, according to media reports, “Zaid should repent. Otherwise he should get out of the ‘rumpun Melayu’. Paraphrased by BERNAMA, his explanation for this was that “if Zaid continued to question the Malay supremacy concept, then he should no longer be a Malay as a Malay should be defending the Malays and not running them down.”

But, is that not what Zaid was doing? Apparently not, for the New Straits Times reported Home Minister, Datuk Seri Syed Hamid Albar, who is incidentally an UMNO supreme council member, as saying that Zaid was “a traitor to his own race and should apologise for his remarks.”

Both responses are so self-defeating that they boggle the mind. They typify the might is right attitude that Zaid speaks out against. Being senior UMNO members, both individuals must be open to the possibilities. As Zaid put it, if “affirmative action is truly benchmarked on the equitable sharing of wealth that is sustainable, then we must confront the truth and change our political paradigm; 40 years of discrimination and subsidy have not brought us closer.”

Zaid was not alone in expressing concerns about the way things are. At the same conference, His Royal Highness Raja Nazrin Shah, the Raja Muda of Perak, called for a rejection of discriminatory policies. The Raja Muda observed that the “consequence of not empowering citizens or, worse, disempowering them, is to create a deep sense of alienation and hostility. Indeed, it is very often an overwhelming sense of alienation and powerlessness that causes the rash acts of violence that fracture societies. It gives these citizens every reason to seek to divide society in order to redress their dissatisfactions. This is bad and insensitive politics. On another level, we cannot morally turn our backs on the fundamental responsibility of ensuring that all stakeholders in our society, no matter how small or seemingly insignificant, have a place under the sun.”

The ideal could not be better articulated. Malaysians, all of us, want our place in the sun. We do not wish to live in fear, looking over our shoulders all the time. There is more than enough for us all to share in. We have been blessed with a nation so abundant with resources and so rich with potential that generation upon generation will be able to live in peace and prosperity. The only catch, if it can be called that, is that we need to be left alone to find our equilibrium. Only then can we get on with the task of doing it right.

(Malay Mail; 4th November 2008)