Do You Remember, Mr Speaker

That when you took office, you took an oath that you would “faithfully discharge the duties of that office to the best of my ability, that I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its Constitution."

In return for your commitment to the defence of this nation and its ideals, you were and still are guaranteed by law a salary paid from the Consolidated Fund. The monies in this fund are monies raised or received from the Federation. Monies raised from the hard work of Malaysians, the majority of whom pay their taxes in fulfillment of their end of the bargain, of their respective duties to this nation. They pay and they pay, with the strain of an existence that is difficult at best for many, every bead of sweat on their brow a testament to their will to survive.

I ask you, Mr Speaker. Do you think that you are honouring these Malaysians with your actions? Do you think you are preserving, protecting and defending the Constitution that is the only guarantee of the just and compassionate society that these Malaysians are entitled to? The only future that our young deserve?

I fail to see how that could be so when matters of national importance are prevented from being aired by you. It would appear that you act almost mechanically in rejecting motion after motion. The essence of parliamentary democracy is free, frank and fearless discussion in parliament; without fear or favour. And yet, we are seeing almost no significant debate on key issues that affect us all. Parliament has been allowed to be manipulated and I wonder whether you see this.

Do you not recognize that you are a trustee for the Malaysian rakyat? In that, sir, you owe a great duty to ensure fairness. I appreciate that your appointment may have been arranged by those who constitute the Government, and that you are not an elected member of parliament. This does not, should not, make you beholden to the Government, or anyone else for that matter. Your appointment is proof enough of your ability to supervise the Dewan Rakyat as it should be.

By virtue of your position, and the measures provided by the Constitution to secure yourself from arbitrary reactions, you are ensured the means to act in fairness. In doing so, you would be doing nothing more than what is expected of you by the Constitution and the rakyat of this nation.

Act now, sir, in defence of the nation. It is a dark time for us all, all our families, and the fate of this nation rests on the conscience of a few good men and women. The path to which you hold the key is a path that allows the issues that are fermenting in a cauldron of tension to be resolved peacefully through the frank discussion so crucial for the truth.

Remember, Mr Speaker, your oath and the significance of that oath. Remember your sacred duties. And above all, remember Malaysia and its children.

MIS

No Discrimination Please, We’re Malaysians

Equality? What’s that?

Perhaps it has been the years of abuse that has been permitted under the guise of the NEP or the devastating continued and divisive emphasis on race and ethnicity by our leaders and politicians. Whatever the cause, most Malaysians have become cynical about Unity and Equality.

The former has become nothing more than a political catchword heard more often as General Elections draw near. The latter is a word that even politicians fear to use, possibly fearing that they might be called upon to justify what they have said. I would think that any attempt to articulate Equality against the backdrop of contemporary Malaysia is akin to taking a stroll in a minefield.

Think about it. When did you last hear a politician say the word Equal when talking about Malaysians. I do not think I have ever heard it being said. I hear, all the time, “We are all Malaysians” or “This is for the good of all Malaysia”, or words to that effect. But never “We are all equal” or anything like that.

But why should that be the case? The law does not support discrimination.


What Is The Law?

The Constitution is built on a foundation of non-discrimination. Each citizen is guaranteed basic rights, including the right to equality (Article 8). This particular right is structured around two central pillars: the right to equality before the law and the right to the equal protection of the law. It is put this way in the Constitution:

“8. Equality.


(1) All persons are equal before the law and entitled to the equal protection of the law.


(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.”


The provision means what it says. There shall be no discrimination on the ground only of religion or race or gender (amongst other things). That means every one of us is entitled to say that we want our place in the sun, to quote the Raja Muda of Perak. We have an equal right to define ourselves by our own religions, race, and gender. We are all guaranteed an equal right to avail ourselves of the law, the principles of which are equally applicable to all of us. After all, we are all guaranteed an equal right to participate in representative government through the right to vote.


What About The Special Status Of Malays/Natives Of Sabah & Sarawak?

My first posting on this blog explained the impact of Article 153 of the Constitution, the provision providing for special status for the natives of Sabah and Sarawak and the Malays ("A Matter Of Protection, Not Privilege"). It bears repeating: the provision allows for limited preferential treatment for the purpose of protection. The provision does not bestow privileges on the communities identified nor does it create a privileged class.


What About Islam?

What about Islam then, some might ask. The Constitution does not in any way provide that Islam is to be preferred to other religions. To the contrary, the Constitution declares that all religions may be practiced in peace and harmony (Article 3(1)).

Similarly, the Constitution does not provide that Islamic law is to be applied in preference to civil law. Instead, the Constitution envisages that in matters of public and private law, secular law is to be applied. Islamic law is to be applied only in respect of matters of Islamic personal law and to persons professing the religion of Islam. As to what that personal law is, it is for the relevant legislative body to enact law to provide for it.

The question then is whether the existence of an Islamic law system for the application of muslim personal law discriminatory i.e. in violation of Article 8? The answer is no as Muslims are legitimately treated as a class or category distinct from others. This is contemplated by the Constitution which envisages the application of Islamic personal law to Muslims. Constitutional theory permits what is referred to as ‘rational classification’ where it is necessary to view individuals as belonging to a class. This permits a difference of treatment between members of that class and non-members. In this case the distinctive feature of members of the class in issue is the professing of the religion of Islam.

It follows that Islamic personal law cannot be applied to non-Muslims. Civil law applies. Further, all members of the non-muslim class are to be treated equally and have equal protection before the law in so far as personal law considerations are concerned. Subjecting non-Muslims to Islamic personal law would be in violation of Article 8. It would be discriminatory.

In all other aspects save for where Article 153 is applicable, all Malaysians are to be treated equally.


Where Does That Leave Us?

With the right to insist on equality of treatment. Such insistence is in no way a challenge to the special status of the Malays as contemplated under the Constitution. Equality of treatment can co-exist with measures aimed at providing protection to the Malays. Equality cannot however co-exist with a 'privilege' system. In the same way, Unity cannot co-exist with a 'privilege mindset'. Continuing to delude ourselves will only be to the detriment of the nation. All of us will be affected, Malay and non-Malay.

Isn’t it time for us to start insisting that our politicians start using the E word?

MIS

What's Going On?

I would have thought that with all that came to light last year – through the Article 11 initiative, and the controversy surrounding it, and the various cases that went to court from Murthi to Lina Joy as well as those that did not make it court, Rayappan for instance – State Authorities and the Judiciary would have begun to appreciate that the Constitution was being hijacked and the Rule of Law being undermined, in part by ill conceived decisions on the part of the latter.

I would have thought that it was obvious that the trend of decisions being handed down by the Civil Courts, including the Court of Appeal and the Federal Court, were doing more damage to the fabric of our nation than any other element, barring corruption and mis-governance.

It seemed to me that once the cabinet intervened over Rayappan and a more uniting form of Islam, rather than divisive, was being propounded by all concerned, greater constitutional understanding and constitutionalism were to be the order of the day.

I was wrong.

Take a look at a cross-section of cases that have come before the Courts in the last 3 months.


Case 1

On December 28th 2006, I appeared for a Hindhu lady, X, in the Children’s Court. The Children’s Court is a specialized court dealing with matters affecting children under the Child Act. The Child Act was a law put in place to consolidate and amend the laws relating to the care, protection and rehabilitation of children to fulfill obligations taken on by the Malaysian Government in acceding to the UN Convention on the Rights of the Child.

The paramount consideration of the Court in the exercise of its powers is the best interests of the child or children concerned. The powers under the Child Act as such go to the welfare of children. The Act empowers the court to exercise powers necessary to ensure that a child, or children, are kept safe.

X was married to a Chinese man. She bore him 3 children. A short while ago, he married a Malay woman, someone who X and the children were familiar with. Though he converted to Islam for that purpose, the 3 children did not. At some point after the marriage to the Malay woman, he arranged for the children to visit him for the school holidays. Thereafter they remained with him, this decision having been arrived at without X having been consulted. X managed to see them from time to time.

Unbeknownst to my client, her husband passed away and some 12 days after, the children were converted into Islam. The conversions were effected without the knowledge and consent of my client. All 3 children were under the age of 18.

The step-mother then refused to allow the children to return to X. X took out custody proceedings in the High Court. The High Court granted X custody. Soon after, the Majlis Agama applied to intervene into the High Court proceedings and set aside the custody order. The Majlis contended that the children were Muslims and the High Court as such did not have jurisdiction. This was the first X had any indication of the conversions. X is taking steps to challenge the conversions.

At about the same time, the Welfare Department received an anonymous tip-off about the 3 children suffering emotional abuse at the hand of their natural mother, X. This was despite the 3 children not having lived with X for a significant period before the tip-off. The 3 children were taken into protective custody by the Welfare Department from their step-mother and placed in a welfare home. The Welfare Department obtained an urgent ex-parte Order from the Children’s Court for this purpose.

Under the Child Act, the Children’s Court is required to then consider its decision more thoroughly with the benefit of expert reports and a report by the Welfare Department in a hearing. It is at this hearing that I appeared for X, along with her very capable and committed solicitor, Mr K Shanmuga.

It must be borne in mind that the right of natural parents to guardianship and custody is a constitutionally entrenched right, reinforced by statutory law. This does not mean that the State is without powers to intervene where necessary. This is done trough the Courts which are recognized as having a protective jurisdiction over children, all children being wards of the court. The Court can make orders giving custody and guardianship to persons other than natural parents where such orders are necessary to secure the best interests of the child. Were it to be otherwise, children would be left in the control of abusive or grossly neglectful parents, and suffer for it. As one can readily appreciate, this is not a power that is easily invoked and the standard of proof is a high one. Where this power is provided for under statute, the necessary elements must be made out.

In the case of X, the contention of the Welfare Department was that there was emotional abuse, a ground provided for under s17(1)(h), Child Act which reads:

“A child is in need of care and protection if-

there is such a conflict between the child and his parent or guardian, or between his parents or guardians, that family relationships are seriously disrupted, thereby causing him emotional injury;”

Emotional injury is defined as “substantial and observable impairment of the child's mental or emotional functioning that is evidenced by, amongst other things, a mental or behavioural disorder, including anxiety, depression, withdrawal, aggression or delayed development

It was as such necessary for the Welfare Department to produce evidence to show that there was a substantial and observable impairment of the 3 children’s mental or emotional functioning. The Welfare Department did not produce any such evidence. It relied on a report by a pediatrician who declared that the children were not physically injured nor was there any observable emotional injury. A child psychologist’s report was not furnished.

The step-mother was represented. The Children’s Court was empowered to give temporary or permanent custody to any party the Children’s Court thought fit. Counsel for the step-mother emphasized the fact that the children were muslim. In response, I argued that the status of the children as muslims was premised on a wrongful conversion as they were minors and the consent of X had not been obtained as required under the Constitution (this is a settled principle of law, decided by the Supreme Court in a case referred to as In Re Susie Teoh). In any event, I argued, the issue of their being Muslim and their mother not being was not one which could be characterized as amounting to emotional injury under s17(1)(h). There was further the complete lack of factual foundation to the suggestion that there had been emotional injury as the children had not been with their mother for some time.

I thought it was plain and obvious. In mid January, the Magistrate disagreed with me (and in fairness to him, there were 2 non-Muslim advisors to the court). The step-mother was given custody. As a consequence, the custody order granted by the High Court was rendered valueless. The matter is pending review by the High Court in Shah Alam.

Was the Constitution adhered to? I do not think so. Was the decision in the best interests of the children? I cannot see how this could be so. It is a presumption in family law that a child’s interests are best secured by the child being with his or her natural mother. Section 17(1)(h) is a statutory exception to this general rule.


Case 2

On January 4th 2007, I appeared with Haris Ibrahim and Edmund Bon in the Federal Court. We were there for Haji Kahar who the media has described as the “self-styled Prophet of Selangor”.

Haji Kahar had been charged with several offences under the relevant Selangor Islamic Criminal Law Enactment and these were to be tried in the Syariah Courts. I have written elsewhere on this blog about the issues that arise (see the posting “Of Fatwas And Precepts”) and will not repeat myself here. Suffice it to say that there was a serious question of constitutionality going to the competence of the Selangor State Legislative Assembly to make the laws that were now being applied against Haji Kahar.

As has been explained in the “Fatwas” posting challenges of this nature are taken out directly in the Federal Court pursuant to a provision of the Constitution which specifically provides for challenges on grounds of legislative competence. The challenge is taken in 2 stages. In the first stage, the Federal Court must be shown that the applicant has legal standing (locus standi) and that there is an arguable case. The second stage is the substantive stage.

It is common for a single judge of the Federal Court to sit at the first stage. I appeared for Zaid Ibrahim in the challenges he mounted against Kelantan and Trengannu in connection with the Hudud (Islamic Criminal Law – prescribed offences) Enactments in both states. As I recall, a single judge sat for the leave hearings for both applications.

In 2005, similar questions had arisen in connection with the relevant Trengganu Islamic Criminal Law Enactment. As such, a similar challenge had been mounted by Sulaiman Takrib. Both Haris and I appeared for Sulaiman Takrib and obtained leave before a panel of the Federal Court, comprising Tun Fairuz (the current and then Chief Justice), Dato’ Richard Malanjum (the current Chief Judge Sabah & Sarawak) and Dato’ Alauddin Sharif in December 2005. The same judges heard the substantive phase in June 2006, shortly before Lina Joy.

As the Haji Kahar challenge was on similar footing (though different for having been filed in connection with Selangor laws), we got in touch with the Attorney General’s Chambers and came to an agreement. We would agree to the Government of Malaysia intervening (in effect, the Attorney General). Leave would be agreed to. There was nothing unusual about this as we had shown in the Sulaiman Takrib challenge that there were serious issues to be considered, issues which had yet to be determined even though about 6 months had lapsed since we argued the case.

You can imagine our surprise when we went to the Federal Court and discovered that 5 judges would be sitting to hear the leave application (Tun Fairuz, Dato’ Malanjum, Dato’ Augustin Paul, Dato’ Hashim Yusof and Dato’ Azmel). It was even more surprising that the bench insisted on being addressed on the issues. Submission took more than an hour and was, in my view, heavy going. A question was raised as to whether this was a matter which the syariah court ought be deliberating over, even though it was plainly a case concerning the competency of a law making body and a challenge which the Constitution clearly vests the Federal Court with jurisdiction to deal with. The syariah courts very clearly are not and cannot be empowered to adjudicate cases involving constitutional issues (see the report in The Sun on 5th January 2007). At one stage, one of the judges commented that the Attorney General’s Chambers should never have agreed to leave being granted.

Leave was ultimately granted. It was a struggle though, one we did not expect. The substantive phase will be dealt with in due course. In the meanwhile, we are still awaiting the decisions in Sulaiman Takrib and Lina Joy.


Case 3

On January 8th and 9th, I appeared for Subashini in her now notorious appeal. Haris and Shanmuga appeared with me. The case is fairly straight forward. Subashini is a Hindhu. She has two children. Her husband converted to Islam and indicated that he was going to convert their first child to Islam. She commenced proceedings in the High Court for a decree of divorce and consequential orders, including an order (common known as an injunction) to restrain her husband from converting their first born to Islam. It is beyond dispute that the High Court has jurisdiction to grant a decree of divorce and consequential orders. Unbeknownst to her, her husband unilaterally converted their first child into Islam. He also commenced proceedings in the syariah court for custody of the first child.

Fearing the possibilities, Subashini applied for an interim injunction to restrain her husband from converting their first child into Islam and to commence and carry on with proceedings in the syariah court.

In my view the syariah court has jurisdiction to grant decrees of divorce and make consequential orders, including those going to custody, in respect of marriages solemnized under Islamic law. It follows that the syariah court has no jurisdiction to grant such decrees or orders over marriages solemnized under civil law. Non-muslim marriages are solemnized under civil law. There is no issue at all here and the relevant law was clarified by the Supreme Court (as it was formerly known) in a case referred to as Tang Sung Moi.

The argument, in essence, made by Subashini was that any proceeding commenced in the syariah court would be a proceeding without proper foundation in law and therefore an abuse of process. More so for the fact that such proceedings would be positioned in ‘competition’ to the High Court proceedings. The High Court proceedings being correct in law (from a jurisdictional standpoint), and the law being as it is, the syariah court has no power to make any order. The question arises therefore why would any proceedings be commenced in the syariah court at all.

The decision of the Court of Appeal (delivered last week) is an incredible one. By a majority decision, 2 to 1 (Suryadi J and Hassan Lah J as againt Gopal Sri Ram J), the Court of Appeal ruled that the syariah court had jurisdiction and as such there was no basis in law for the High Court to grant an injunction. In a far reaching (and in my view completely unfounded) step, 1 of the majority judges ruled that Subashini ought have petitioned the syariah Court of Appeal to argue that the proceedings in the syariah court were jurisdictionally deficient. This was despite the Constitution limiting the jurisdiction of the syariah courts to persons professing the religion of Islam. No reference was made, however, to the Constitutional limitation.

It is significant that neither of the 2 majority decisions refers to Tang Sung Moi nor questions or considers the validity and effect of the provision of law that allows a non-Muslim party to a marriage to petition the High Court for a decree of divorce. In highly technical decisions, both the majority decisions reject Subashini’s right to apply for a preservation of status quo. 1 of the 2 judges quotes from the Quran to emphasise the fairness of the syariah law in an attempt at consolation (please read the judgments for their full term and effect).

It is equally significant that the minority judgment is a careful and meticulous analysis of the constitutional framework and the inter-relation between the civil and syariah courts. In my view it is the strongest judgment yet on the subject.

I cannot begin to understand how to justify the position taken by the majority. All that remains for Subashini is the Federal Court.


What’s Going On?

I ask you.

MIS

Article 11: Alive And Kicking

Article 11, the coalition, launched its video series today. The videos are aimed at clearing the air about what the coalition stands for and what its objectives are. At the moment, there are 3 videos: a dialogue in English with key coalitions members, a dialogue in Malay with other key members and a dialogue (in Malay) about the role of Islam in governance. The videos will be available for viewing shortly on prominent internet portals and sites. For further details, please go to www.article11.org. The website also has an FAQ about the coalition and its activities.

It is worth underscoring that Article 11 stands for what all of us as Malaysians should be standing for. A just and compassionate society in which the interests of all are equally protected through an unbiased and objective adherence to the Rule of Law. For those of you who have doubts, let me set out here the mission and objective of Article 11 (as is set out in its website):

“Mission Statement

Our mission is to ensure a Malaysia that:

• upholds the supremacy of the Federal Constitution;
• protects every person equally, regardless of religion, race, descent, place of birth or gender; and
• is firmly established in, and upholds, the rule of law.
  

Objectives

We aim to promote awareness towards, advocate for, and contribute to achieving a Malaysia where all Malaysians in our daily lives:

1. affirm the Federal Constitution as the supreme law of the land;
2. strive to build national unity;
3. affirm the right of every person to full and adequate access to justice;
4. recognise the need for a judiciary that is impartial, independent and an equal arm of the government;
5. recognise that the Federal Constitution embodies an agreement among the various communities;
6. respect the Constitutional guarantees of equal protection for every person in a multi-racial, multi-religious Malaysia;
7. seek to protect fundamental liberties for all;
8. respect the freedom of thought, conscience, belief and religion of every person; and
9. ensure that Malaysia does not become a theocratic state.”
   

The mission and objectives of Article 11 are not inconsistent with Islam. On the contrary, they go far in attempting to ensure that the core Islamic values of justice and righteousness are adhered to and applied. How is it Islamic to leave any person – muslim or otherwise – without recourse? How is it Islamic to apply the law tactically to deprive a person of legitimate rights of access to justice? Islam does not only offer justice and fairness to Muslims. It does not create a monopoly over these values for Muslims. Any suggestion to the contrary is an insult to the religion. Any application of the law to that end misrepresents Islam as a religion that enjoins unfairness, injustice and oppression.

Article 11 promotes the Constitution. In doing so, it accepts the Constitutional declaration that “Islam is the religion of the Federation” (Article 3(1)). It also accepts the Constitutional declaration that “all other religions may be practiced in peace and harmony” (Article 3(1)). There have been many lies about the coalition and its supposed efforts to reject Islam as the religion of Federation. I question the motives of those who have misrepresented the efforts of the coalition. I challenge them to prove that Article 11 has done what it is they say.

It is the Constitution that protects us all, Muslims or otherwise. It is the Constitution that guarantees Muslims the freedom to be Muslims. It is the Constitution that guarantees a Malay Muslim the freedom to practice Islam in the way a Shafee Muslims would. It is the Constitution that allows a Malay Muslim to reject any compulsion to practice Islam other than as a Shafee. But if one accepts that along with the madzhab Shafee, there are other recognized schools of thought, or madzhabs, within the Sunni grouping of Muslims, we must also recognize that the Constitution equally protects the rights of Muslims to practice Islam in accordance with the principles declared by these other madzhabs. Muslims from the Indian sub-continent are more usually Hanafis.

Islam cherishes diversity. In our uniqueness as humans, diverse as we are, we celebrate the Creator. Islam is not monolithic. To attempt to define Islam in a limiting way is to attempt to limit God.

The Constitution protects that diversity. Not only within the religion of Islam but also outside it. It protects the rights of all persons in religion, faith and conscience. It guarantees that all of us are equal in law and before the law; that no one can be discriminated against on grounds of ethnicity, religion and gender. In this way justice is ensured for all. And just because the Constitution is not replete with Islamic terminology, this is no reason to condemn it as being unIslamic or anti-Islamic. Labels only go to form. More importantly, justice is not justice unless it is seen as being impartial. Fairness cannot be created from bias, in fact or in perception. Justice must not only be done but must be seen to be done. The Constitution exemplifies this principle.

So, I believe that in promoting the Constitution and the objective, detached justice it offers to us all, Article 11 is in fact promoting the universality that is an essential aspect of all faiths, religions and ways of life, including Islam.

And that is why it continues with its efforts to highlight those very disturbing trends that have developed in recent times. Can you blame Article 11 for doing so? I think not. To turn its back on the issue would mean turning its back on the very unjust and unfair treatment of individuals such as the widow of Murthi, Shamala, more recently Subashini and all those in similar positions.

The reality is that these individuals have been wronged by a system that was conceived to protect individuals like them but which has been misapplied to contrary ends in recent times. They have been treated unfairly and oppressively. Regretfully, Islam (as represented by the syariah courts and their purportedly exclusive jurisdiction) has been invoked to justify the treatment of these individuals and others like them. In this way, Islam is being given a bad name

The situation that has developed is a grave one. It is a situation that is dividing the nation more and more as the flaws in reasoning get more entrenched. I say flaws because the Murthi or Shamala or Subashini scenario is a recent one. We have been independent since 1957 and Article 121(1A) - the Constitutional provision that introduced the jurisdictional divide between civil and syariah courts - came into play in 1988. One would have thought that the problems would have surfaced much earlier. They did not. Shamala, the first in the series as far as I know, came to court only in 2004.

Why now and not before?

This is what Article 11 has been attempting to grapple with and highlight. If the system worked before, then something must be wrong with the way it is being applied now. The resultant injustice is reason enough for all of us to study the situation and attempt to solve it. Recent developments are tearing apart this nation, ironically in the name of the Constitution.

In this way, the efforts of Article 11 are aimed at ensuring that this country remains united and that the assurance of the Prime Minister of “1 county, 1 system” is borne out.

Article 11 is a nation building effort. It is an effort which all of us should align with. It is not an effort that belongs to the organizations and individuals behind the coalition. It is an effort that all of us are stakeholders in.

Help Article 11. Help Malaysia. Disseminate correct information about the initiative, consider the issues it is dealing with, communicate your understanding to others. The situation developing is serious enough for all of us to be concerned about, irrespective of faith.

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.

An Open Letter To The Attorney General

(Published in the NST, 17th Dec 2006 as "An Open Letter To The Attorney General: Intervene To Ensure Justice For All")

Dear Sir,

I have had the privilege of meeting you and also of appearing against you in several constitutional cases. I have found you to be reasonable, fair minded and open to all views. It is to those qualities that I now appeal.

I write concerning the matter of Anthony Rayappan and all matters like it. At the core of disputes of this nature is the issue of access to justice. Reactions to the actions of the religious authorities have not been so much about the claims of these authorities but about the recourse to the syariah courts which have had the consequence of denying the claims of family members and of their right to be heard.

I believe it bears restating that under our constitutional system every person is guaranteed a right to access the courts to address a grievance. Where there is a right, there is a remedy. And yet, in these cases the reverse appears to be true. Parties who have a legitimate basis are being shut out from the courts. Worse, the Constitution is being used to justify this unfairness.

It may have been the case that there was a reasonable basis to suppose that Rayappan, or M.Moorthy before him, had in fact converted to Islam. I do not know. It may also have been the case that the family members of the deceased had a basis to conclude that they had not. Both sides were as such entitled to get a declaration by a court in order to be sure about what it is had to be done.

And that is the way it should have been with all parties appearing before a judge of the High Court and presenting their respective cases. That is how it has always been, even after the introduction of Article 121(1A) of the Federal Constitution.

The affair, like the one before it, became controversial, because the Majlis Agama (Religious Council) took the view that not only was it entitled to move the syariah court for a declaration, it was the only manner in which this issue could be solved, as the syariah court had exclusive jurisdiction.

This view is erroneous. The syariah court only has a limited jurisdiction over persons professing Islam. The Majlis Agama is a body corporate and cannot in law be a “person” or a “person professing Islam”. Additionally, the family members are not Muslims. There is no question of their “submitting” to jurisdiction as has been suggested nor can the syariah courts compel their attendance as was attempted. The Constitution itself has defined and limited the jurisdiction of the syariah courts and one cannot create jurisdiction by submission. Even if there was law to that effect, that law would not be constitutional. As such, it is only the High Court that can hear disputes of this nature.

Article 121(1A) does not change this. Subsequent to the amendment which introduced this provision, the apex court in at least three decisions explained the manner in which the jurisdiction of the High Court is to be determined. In particular, it was declared that where the parties to the dispute include non-muslims the High Court should hear the matter.

That is the law. Nothing has changed in between and yet for reasons beyond comprehension the view of the Majlis has, by default or otherwise, become the definitive view. This has allowed for an undermining of the Rule of Law and of constitutionalism. It has also allowed for the Constitution to be turned on its head. How else can one describe a situation where access to justice is denied in the name of the Constitution?

I write to you as the principal guardian of the Constitution. I urge you to intervene to correct this sad state of affairs. As the Attorney General, I would say that the burden is squarely on you. You have the standing and influence to play a pivotal role in bringing some sense to the situation. The scenarios that have played out involve questions of public law in as much as they do private law. They further involve state or state supported actors who are answerable to the state. The perceived unfairness has resulted in an erosion of confidence in the key institutions of the nation and the suggestion that discriminatory practices abound.

There are several ways in which you can approach the issue. Forgive my boldness for taking the liberty of suggesting them. I do so with the certainty that you will see my doing so as being prompted by nothing more than my duty as a citizen to act in the interests of my nation. As Malaysians, we are all charged with finding constitutionally just solutions.

First, as Attorney General you can and must publicly express your view as to how the Constitution guarantees equal access to justice and equal protection for all. You must express your view as to how situations like this should be handled. A statement by you will be of great influence and go a long way in guiding those in doubt or who are of mistaken impression. It is equally crucial for you to correct leaders when they air incorrect views. I believe that, to an extent, uninformed views have entrenched the mistakes further.

Second, your chambers could undertake a review of the training currently undergone by civil servants, especially those in the departments most involved in issues of this nature, with a view to ensuring that these individuals appreciate the constitutional framework in which they operate and the permissible limits. This would have to include the syariah court judges. These courts are established by law enacted by constitutional mandate, as is the law applied by these courts. It is imperative that the misimpression that the syariah courts apply syariah as distinct from enacted law be corrected. I believe that it is this misimpression that has allowed for a certain mindset to develop where questions of religion are put before duties and obligations in law.

Thirdly, where state actors are involved, your chambers could take a more proactive position in ensuring that legal positions are consistent with the Constitution. Where there are legal officers involved who are directly under your control, this is essential. Positions in court must be taken that are constitutionally correct so that no matter who wins at the end of the day, the Constitution and constitutionalism are not sacrificed. As a fellow lawyer, you would appreciate that all lawyers are charged as officers of the court with the pursuit of truth.

The situation we find ourselves in is not just a matter for the judiciary although it does play a key role. Controversy will not occur where Malaysians are all of like view where basic rights are concerned. Disputes will occur but we will be able to deal with this in the way we have always done; with civility, and with attention to and consideration of the interests of all.

In concluding, I urge you once again to come to the defence of the Constitution and the nation. They both need you.

Malik Imtiaz Sarwar
President, National Human Rights Association (HAKAM)

Rayappan: Constitutional Considerations

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

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

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

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

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

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

MIS

The Tragedy Of Rayappan

The dilemma with Rayappan’s case is simply that there is no dilemma.

There is no tragedy in Rayappan’s family not wishing to submit to the jurisdiction of the syariah court. In as much as they are entitled to not be compelled to give evidence in the manner the Majlis Agama wished, as a matter of law Rayappan’s family members cannot do so. The Federal Constitution has limited the jurisdiction of any syariah courts, such jurisdiction to be conferred by written law, to persons professing the religion of Islam. The family members are not such persons.

In the same vein, the Majlis Agama is not a person professing Islam. It cannot be. It is not a natural person. It is a body corporate. As such, it was not in any position to petition the syariah court for any order. Neither was the syariah court in a position to entertain any application by the Majlis Agama.

Additionally, the syariah court cannot order any state department or agency to do one thing or the other. Such departments or agencies are not ‘persons professing the religion of Islam’ within the meaning of the Federal Constitution.

And yet these things are happening. Orders are being granted. The crucial question is why. More significantly, why is the Government not doing anything about it? Most, if not all, of the actors involved are government servants. Surely there is a method by which these actors can be made to understand their roles and more importantly the legal framework in which they operate, constitution and all.

Any exercise of power which runs counter to the system envisaged by the Federal Constitution is an abuse of power. The system envisaged is not one which lends itself to discriminating against the widow of Rayappan or persons in her situation. The system is not one which envisages a distinction between muslims and non- muslims in the way they articulate the right to access justice.

Seen from this perspective, and when viewed in the context of manifest abuses of powers as noted above, the question is really why the government does not appear to be doing anything to correct the obviously incorrect application of legal principle. By its inaction, the government is accountable for what is clearly state supported discrimination. More so the Attorney General's chambers for permitting the wrongs to perpetutate and for not taking the position it should on the Federal Constitution.

This by any account is wrong and reprehensible, no matter the explanation. No matter the exhortations for Rayappan’s family members to submit to jurisdiction. No matter the directions from the Prime Minister.

The tragedy of Rayappan's case is that all the answers are provided by the Federal Consitution and that the answers provided cater to the needs of all concerned. The High Court clearly has jurisdiction. The issue is whether Rayappan passed away as a Muslim, the remedy needed a declaration. If there are elements of Islamic law that need to be understood in order to come to this finding of fact, expert evidence can be led. This procedure is invoked regularly in the High Court in various matters and there is nothing to distinguish cases of this type from any other case. This was the approach taken by the Supreme Court in a similar case called Dalip Kaur in 1992.

The tragedy of Rayappan's case is that the Constitution does not seem to matter any more.

There is no justification that can be offered to Rayappan's family for what it has had to undergo. I cannot say whether Rayappan did in fact pass away as a non-Muslim. The very minimum that his family members are entitled to are the certainty that they will be given a chance to air their grievances in a court of law and that the issue will not be adjudicated upon by stealth in the syariah courts, courts to which they do not and cannot have recourse

And the involvement of State actors in the scenario is inexcusable. The Government must be blamed. It cannot say that it was taken by surprise, that it has not been appraised of the way things are being handled and the law applied. This is what the Article 11 road shows were about. The Government also promised when Murthi's burial became a very public issue last year that the scenario would not repeat itself. Well, it has, repeatedly, in one form or the other.

For this reason it is equally inexcusable for the Government to have buried the Article 11 initiative and any like it under the mountain of lies that were spread about the same. The Government owed a duty to Malaysians to allow civil society to assist it in solving a situation that it does not appear to be able to solve. In killing the debate on the wrongs being caused by a misapplication of the law, the Government intentionally looked away. It still seems to be looking the other way.


MIS

A Matter Of Protection, Not Privilege

I believe the time has come for us to ask difficult questions about this country and who we are when we say we are Malaysians. In the same vein, I believe that it is time for Malaysians to stop offering avenues of escape to those responsible for our well being and our collective future. We must confront the fact that something is very wrong at the heart of Malaysia.

Like many others, I was angered by some of the speeches delivered at the recent UMNO general assembly. As I considered the matter further, I began to appreciate that we may have benefited from having heard the sentiments expressed. Despite the feeble attempts to subsequently soften and explain away the obviously painful impact of the speeches, the truth had revealed itself; those who claim a virtual monopoly to lead this nation are racial supremacists and proud of it. All others, it would seem, are incidental to the vision of supremacist ideology as it was played out at the assembly.

The attempts at damage control were pitiful for the fact that they appear to have been aimed not so much at the healing of the community as a whole but more at attempting to exculpate the party. In this way, such efforts added insult to injury. The suggestion that the sentiments expressed were intended only for the party was implausible, disingenuous and clearly an attempt to avoid responsibility. From the outset it was obvious that this assembly, like others, would be heavily publicized. Like in previous years, the print media would be giving the event maximum coverage. Additionally, the assembly was to be broadcast live. These were matters known to all concerned and, I would say, factored heavily in how they positioned themselves. The extreme racism, for that was what it was, was put on display for the world to see as a miscalculated show of strength.

The justifications, offered as they have been instead of the apologies and humility we all deserve, have not gone far in convincing Malaysians that the racial extremism displayed is not an accurate reflection of how the UMNO, and as such by its own declaration the leadership, sees things.

And the way it sees things is obvious; while all of us are equal, some of us are more equal than others. I do not say this to incite disaffection. I have Malay friends who were equally disgusted by the goings on at the assembly. They show me that the attitudes celebrated at the assembly are not universally those of the Malay community at large.

Instead, I say this to lay foundation for the question of whether the Federal Constitution does provide for a privileged existence in the manner suggested at the general assembly.

The constitutional provision pivotal to any discussion of this subject is article 153. It refers to the ‘special position’ of the Malays and the natives of Sabah and Sarawak and declares that it is the responsibility of the Yang Dipertuan Agong to safeguard these communities and the legitimate interests of other communities. It does not describe this ‘special position’ as a privileged status.

The founders of the nation did not at any point in time contemplate the creation of a two-tiered society such as some of some might have us believe. They contemplated the possibility that due to historical factors there might be a need to introduce certain measures so as not to allow for the dislocation or marginalizing of certain communities. This was not intended to translate into a promotion of particular communities to the detriment of others.

For this reason, article 153 recognises the legitimate interests of other communities. Further, it provides the means to ensure an adequate balance in the way protection measures are deployed. It is in this light that provision is made for reservation of positions in the public service and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and permits and licences where such are required under federal law. This balance is guaranteed further by the express declaration that the provision is not aimed at empowering the restriction of business or trade solely for the purpose of the protective measures. In short, there is no basis for wholesale reservations or quotas.

Put another way, despite suggestions to the contrary the Federal Constitution does not lend itself to any notions of a privileged existence for any community. It does however envisage a protected status for the Malays and the indigenous which allows for selective measures to be taken fairly and reasonably to a particular end. Any policy of the Federal Government aimed at achieving this end, whether the National Economic Policy, the New Development Policy or otherwise, cannot be seen as vesting greater rights than those contemplated under Article 153. Any other reading would allow for the kinds of abuses that are apparent.

The analysis offered above is not a difficult one. Article 153 is clear. It lends itself to affirmative action where such action is needed. Political expediency has resulted in the provision being mischaracterized and used to particular ends. This in itself is not surprising as politicians will operate as politicians do. What is of interest to me is how and why the characterization has been permitted by Malaysian society to perpetuate to the extent that as we come into our 50th year as an independent nation, the ‘two-tier’ notion has become so entrenched in our social landscape. And why is it that even as the notion continues to divide us, we insist on describing what happens in the country as being a part of a democratic process?

One of the principal reasons for this sad state of affairs is the nurturing of a climate of fear. Laws that allow for preventive detention without trial like the Internal Security Act, that stifle free expression such as the Sedition Act and the Printing Presses and Publications Act and which impede necessary access to vital information such as the Official Secrets Act have kept many Malaysians in the dark and in fear. If they have not been directly threatened or attacked, these laws have allowed the unscrupulous to demonize concerned Malaysians as being anti-Malay or anti-constitutional. They have allowed for the perversion of the social contract theory.

Additionally, a conservative Judiciary which has shied away from developing a strong civil rights tradition in our legal system has perhaps unwittingly allowed for the concomitant undermining of the rule of law. This has weakened our sense of right and wrong.

In this way, policy stereotypes have been permitted to develop and in effect become the law. Our claims to social integration are a hollow boast. Harmony cannot be found at the bottom of the gun barrel that supremacist Malay thinking is pointing at all others including non-extremist Malays.

If UMNO is serious about making amends for what transpired at the general assembly, let us hear then from its leaders of a plan by which the Federal Government intends to take us back to the spirit of protection and the dismantling of the ‘privilege’ mindset. Let us hear an admission of how the climate of fear has led to the development of racist tendencies that no amount of platitudes will help us deal with.

Until then, Malaysians should be forgiven for thinking that they have arrived at the beginning of the end.

MIS