Putting an end to child marriages

The incidence of child marriages is alarming. By child marriages, I mean the marriage of any person under the age of eighteen. This is more so for the fact that it appears that such marriages are significantly more prevalent amongst Muslims. A recent statement by a United Nations agency here indicates that the number of such marriages has increased significantly over recent years.

The minimum age of marriage for persons of other than the Muslim faith is eighteen. Muslims girls are permitted by state law to marry at the age of sixteen. In some states, like Kedah, the Shariah Court can sanction the marriage of an even younger Muslim girl. In one such case, the Shariah Court recently granted permissions for a twelve-year old girl to marry a nineteen-year old man (some reports have put the age of the groom at sixteen). According to reports, the father of the bride consented to the marriage to avoid any “immoral activity” on the part of the couple. The husband is quoted as saying that his bride had agreed to shoulder the responsibility of a wife.  The reports do not indicate either his view or that of the father as to the ability of the twelve year old to understand the full implications of the situation.

It may be recalled that in 2010, a marriage between a fourteen-year old and her twenty-three year old husband sparked some controversy. The Government at that point took the position that if the marriage was permitted under Islam, and as such within the jurisdiction of the State Government, there was no basis to reject the same. Its position does not appear to have changed.

The Attorney General has, through his continued silence on the subject, endorsed such marriages. 

On my part, I fail to understand how the Federal Government and the Attorney General could have allowed for this self-evidently destructive trend to continue. Such marriages are not only, I say, unconstitutional, they hurt the children concerned and society. Research shows that child marriages have severely adverse consequences on the physical, emotional and mental development of the child. UNICEF has reported that girls who marry young tend to forego formal education, which, not only disadvantages the girls concern, lead to gaps in their knowledge on maternal health and child rearing issues. There is an increased risk of death in childbirth for girls that young.

It is for this reason that the Convention for the Elimination of All Forms of Discrimination Against Women, which Malaysia has acceded to, places an obligation on the State to ensure that the “betrothal and the marriage of a child shall have no legal effect” and to take appropriate steps to regulate this. 

It is also for this reason that various countries have set to combating child marriages with a view to improving the welfare of children and for the protection of the community. It is generally accepted that the prohibition of such marriages will contribute significantly to poverty eradication and the promoting of gender equality. In some countries, punitive measures against persons who perform, permit, or promote child marriages have been enacted.

It is no answer to say that the economic realities of the situation are in favour of such marriages. If poverty is causing such marriages, then poverty should be addressed. We cannot allow the situation to evolve; I shudder at the thought of this process being used to validate trafficking of child brides or, for all purposes intents, validating the pedophilic tendencies of the monsters that prey on young children. Less sensationally, even the thought of young child-divorcees is reason for concern.

It appears that rather than dealing with the root problems, the Government would rather sidestep the matter. In this, it would seem that Islam is being invoked to stifle the controversy. 

While I can appreciate the need for the State to preserve the integrity of personal law, it is not the case that the personal law of Muslims can be understood as permitting the endangering of Muslim minors. More so for the fact that the legal framework of this nation so evidently gives basis to the Federal Government and the Attorney General to intervene and correct the situation.

A question arises as to whether the power of the Shariah Court to validate such marriages is constitutional. The analysis cannot stop at the fact that the Legislative Assemblies of the states enact laws that vest the Shariah Court with the power to validate. Though it is true that the Legislative Assemblies have competence over the legislating of laws for the purposes of the administration of Islam, the discretion to do so is not absolute. It must be appreciated that such discretion is limited to enacting only laws that are constitutional. 

As to the question of what is constitutional in the circumstances, several key features of our constitutional framework are material. Firstly, the constitution protects the fundamental liberties of all its citizens. Two of these are highly relevant to the discussion: the right to life, and the right to equal protection of the law. 

As to the former, as has been underscored by the Federal Court, the right is not limited to merely concerns over corporeal existence. It extends to the intangible aspects of the right to live one’s life, a state of being that hinges on the protection of mental and emotional integrity. As to the latter, it would be wholly repugnant to our system of life to allow for a state of affairs where some vulnerable citizens are protected from physical, mental and emotional abuse while others are not. It is for this reason that while at first glance, some constitutional powers could be read as allowing for violations of these strictures in the interests of some other cause, closer scrutiny would inevitably lead to the conclusion that this could not be the case.

Put another way the power of the State Legislative Assemblies to enact law pertaining to the administration of Islam cannot be extended to validating the enacting of laws that defy the constitution. And yet this appears to be what section 8 of the Kedah Islamic Family Law Enactment 2008 does. It vests the Shariah Court with the power to expose Muslim children to the kind of conduct that is proscribed where non-Muslim children are concerned. In doing so, it discriminates against the former category of children. It permits the undermining of the physical, emotional and mental integrity of Muslim children in a way that is wholly inconsistent with their right to life. 

It is not coincidental that the Child Act 2001, which defines a “child” as being a person under eighteen years of age, makes it an offence to cause physical or emotional injury to a child. The same law provides that a minor is deemed to be in need of the care and protection of the State if there is a substantial risk of the minor being emotionally injured or sexually abused. Sexual abuse is defined to include situations where the minor takes part in sexual activity for another person’s sexual gratification.

It is equally no coincidence that the Penal Code defines the offence of statutory rape as involving sexual intercourse with a girl below the age of sixteen without exception. Marriage does not make lawful such sexual congress. It is highly significant that the Malaysian courts in convicting offenders for statutory rape have found that girls under the age of sixteen are too young to even be introduced to carnal knowledge between a man and a woman.

This takes me to the second point. In recognition of possible conflicts between state and federal laws, their respective law-making bodies potentially unavoidably encroaching into each other’s fields of competence, the Federal Constitution gives federal law primacy. As such, where federal law and state law conflict, federal law prevails. 

That being the case, even if the Kedah legislation (or any other such legislation_ were constitutional, which for the reasons I have explained above I cannot see as being a correct proposition, then in light of Parliament having enacted the Child Act and the statutory rape offence under the Penal Code, the Kedah legislation is void.

I suggest that the circumstances compel the Federal Government and the Attorney General to take immediate action. There is recourse; the Federal Government is entitled in law to mount a challenge on the state legislation in the Federal Court. It must do so.

MIS

(This article first appeared in The Edge on 15.12.2012)

Ipoh, 7th May 2009

"...No, no, we are not satisfied, and we will not be satisfied until justice rolls down like waters and righteousness like a mighty stream.

I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow cells. Some of you have come from areas where your quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive.

Go back to Mississippi, go back to Alabama, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed. Let us not wallow in the valley of despair.

I say to you today, my friends, that in spite of the difficulties and frustrations of the moment, I still have a dream..."

Martin Luther King

The image of the Speaker, Y B Sivakumar, being forcibly removed from the chamber of the Assembly has seared itself into the Malaysian consciousness. That force had to be resorted to it is indication enough that the Barisan Nasional did not have a political or legal solution to the difficulty it found itself in.

I wonder whether anyone is actually celebrating.

MIS

(My column for the Malaysian Insider runs on Monday. It will deal with Perak)

Assault On Legislature, Constitution Dead

Discussing the Perak situation with specificity is, by this stage, a difficult thing to do. So much has happened so quickly. Nuanced actions and counter-actions, some of it in uncertain legal terrain, and relatively scarce details have made it precarious to consider certain key events – the legal action against the Speaker and its incidents, for instance – with the depth that only certainty would allow for.

Having said that, whatever the specifics may be and whoever may be right as to the validity or legality of certain aspects of the unfolding saga, when considered from a broader perspective and with reference to the fundamentals of democracy, I do not think that the situation in Perak is very complicated at all. As Tengku Razaleigh recently observed, a chain-reaction of illegality has left Perak possibly without a legitimate government and the Constitution a dead piece of paper.

I was too young to fully appreciate the terrible impact on democracy that the events of 1987 and 1988 had. Understanding came later, as I learnt to see what needed to be seen: the supremacy of the Constitution, the separation of powers and the check and balance it is aimed at, the independence of the judiciary and, correspondingly, the legislature. But even as my awareness of what had happened and how it had happened increased, I rather naively found myself thinking that it was unlikely that we would ever see anything of the likes again. Those events had simply been too heinous and the injuries inflicted on this nation too serious to ignore, even by those who had been responsible and those who would possibly follow in their footsteps.

Or so I thought.

The savagery of what has happened in Perak and the utter disregard of consequence on the part of those orchestrating the campaign go far to show how foolish I was to have believed that all of us, without exception, recognize that some costs are too great and for that, even blind ambition has its limits. It is clear now that this is not necessarily the case; for some, even the nation itself is expendable.

In saying savagery, I recognize that there has been neither bloodshed nor preventive detentions, though it is still too early to say for sure that things will stay that way. The incitement carries on, and mobs are being driven to frenzy to the throb of the war drums. Amidst the calls for blood, bullets have been sent, a disabled parliamentarian assaulted and some of his colleagues battered. The police have apparently too much on their hands to move with the speed that they are capable of and, as such, as things stand serve no useful role as the deterrent that the situation sorely requires.

Violence has however been done; to the Federal and State constitutions, to the Rule of Law and to all that these fundamentals represent. War has been waged on democracy itself.

I can think of no other way to characterize events.

As thing stands, the Speaker is still the Speaker. He has been at all times vested with the full powers of his office and the discretion to exercise those powers. He may have committed mistakes in arriving at certain decisions, but those are matters for the Legislative Assembly itself or, where legal limits have been transgressed, for the courts whose powers in this regard are limited by reason of the separation of powers. Until corrected, the Speaker’s decisions stand, be they the acceptance of the resignation of the three members who crossed the floor, the issuing of the show cause notices to the alleged usurpers of power and the effecting of their suspension, or the calling of the emergency sessions of the Assembly.

And yet under the hand of the Executive, in a manner reminiscent of the locking up of the Supreme Court in 1988 the Legislative Assembly itself was put out of bounds to members of the Assembly, This was done at the instigation of the State Secretary, an officer of the executive and as such its representative, with the assistance of a police force duty bound to protect the system of governance and associated freedoms put in place by the constitutions of this nation.

In doing so, the Executive laid siege on the Legislature. The sight of the Federal Reserve Unit barring the way into the Legislative Assembly, fangs bared and water cannon poised, was as close a physical depiction of democracy being taken hostage as we will ever see. The underlying intention of the exercise brings this further into relief. It was apparent that the Assembly had to be prevented from meeting for as long as it took for the lawyers to do what they could in court. Injunctions against the Speaker had been applied for. Once these were granted, the process that the Speaker had started would be brought to a halt.

The fact that the injunctions had been applied for shows clearly how far democracy was subverted. The making of the applications underscores awareness on the part of those orchestrating the campaign that self-help was not permissible. The validity of the Speaker’s actions had to be tested before a court of law. If they were not needed, the injunctions would not have been sought.

Despite this appreciation of the obvious, the might of the state was brought to bear. A federal agency was brought in and tasked to do what it was not mandated by law to do: keep the Assembly at bay to protect the interest of a coalition of political parties.

There is no law that allows police officers to deny members of a legislative chamber access to that chamber for the business of Legislature. It is not for any police officer to unilaterally determine that the business being conducted is not within the ambit of the legislature, no matter who might say it is. What the police force did was not justified in law. No crime had been committed. Though the gathering masses was reason enough for a police presence, breaches of the peace did not occur nor were orders to disperse issued, unsurprising given that the focal point was the denial of access to the Legislative Assembly.

It is glaringly obvious that confronted with a scenario that left it vulnerable to a tactical maneuvering of legislative procedure, and an inability to resolve the imbroglio to advantage, the Barisan Nasional at the state and federal level collectively took the law into its own hands. The plan to capture Perak had run into a brick wall and rather than go around it, they decided to blow it up and everything else with it.

The situation is comparable to a hypothetical scenario in which Pakatan Rakyat Members of Parliament barricaded Parliament House to deny Barisan Nasional Members and the Speaker access so as to prevent them from legitimately making a law that they would otherwise have. The only difference is if that had occurred, the Barisan Nasional would have denounced the exercise as an attempted coup d’etat and punished those involved to the full extent of the law at its disposal.

It does not make any difference that that the Barisan Nasional forms the Federal government of the day and is in a position to direct the police force; like all other institutions, these institutions are bound to act constitutionally and in accordance with the law. Malaysia is still a democracy predicated on constitutional supremacy. The expectation that all affairs will be conducted to the exclusive convenience and the advantage of the Barisan Nasional and its leaders is more suited to a dictatorship in which the Rule of Law means nothing.

Through the last week Malaysians have borne witness to a shameless display of belligerence and arrogance. We have heard a senior minister describe the emergency session, held by necessity under that now immortalized rain-tree, as “uncivilized”. Another senior minister described the Speaker as a ‘boy’. Though in line with the other ridiculous observations of ambitious UMNO leaders that Malaysians have had to endure since the beginning of the Perak affair, they do little to mask the obvious; that the Barisan Nasional appears to see no limits to what it is permitted to do to achieve its objectives.

And if it could do this in one state, what is to stop it from acting in the same way in other states or at the federal level. Judging by the way in which it has responded to criticism over its actions these past few weeks, it would seem nothing much. It is manifest that the Barisan Nasional considers itself a law unto itself.

That is the painful truth that lies at the heart of Tengku Razaleigh’s declaration that the Constitution is dead.

(Malaysian Insider; 6th March 2009)

MIS

Perak, A Constitutional Crisis

Now that the dust is settling, it is becoming clearer what it is that took place in Perak over the last twenty-four hours. My respectful view is that His Highness may have acted erroneously in directing the resignation of the Mentri Besar.

As always, it will be useful to consider the objective facts. They are as follows:

• His Highness, the Sultan of Perak, granted audiences and in doing so was made to understand that the majority of the members of the Legislative Assembly no longer support the incumbent Mentri Besar. Of these, three memberships are disputed in view of letters of resignation having been tendered to the Speaker. The Speaker has taken the position that the letters are valid and as such the two members are no longer members. Further, legal proceedings are being contemplated
  

• excluding the three disputed memberships, both the Pakatan Rakyat and the Barisan Nasional each hold influence over twenty-eight members

• twenty-eight members have indicated in private to His Highness that they no longer have confidence in the incumbent Mentri Besar. With the three disputed memberships, this number increases to thirty-one

• no vote of confidence has been moved at the Assembly

• the incumbent Mentri Besar made a request for dissolution of the Assembly. This request was not made on the basis that the majority of members had lost confidence in the Mentri Besar. Rather, it was made on the basis that in the circumstances it might be appropriate for fresh elections to be held in the State

• on 5th February 2009 His Highness refused the request and directed the Executive Council to resign. From a statement issued by the palace, this directive was based on His Highness having refused the request for dissolution.

• crucially, the directive was made in accordance with Article 16(6) of the Perak Constitution. This article provides that where a request for dissolution is made as a consequence of the Mentri Besar ceasing to command the confidence of the majority of the members of the Assembly and His Highness refuses, the incumbent Mentri Besar must tender the resignation of the Executive Council.

From the above, it is apparent that His Highness considered the situation to be one in which the Mentri Besar had ceased to command the confidence of the majority of the members. In doing so, His Highness accepted the three disputed members as still being members of the Assembly and as such approached the situation on the assumption that the Barisan block outnumbered Pakatan by three instead of one.

It must be borne in mind that:

• as noted above Article 16(6) is specifically directed to a no-confidence scenario, that is the incumbent Mentri Besar can seek the dissolution of the Assembly upon his having ceased to command the confidence of the majority

• Article 36(2) however provides more generally that His Highness has the power to dissolve the assembly. It is clear that this provision is aimed at allowing His Highness to dissolve the Assembly for other reasons thought to be appropriate

• as a matter of law His Highness is empowered to do what is permitted under the Perak Constitution and the Federal Constitution. This is the essence of a constitutional monarchy

• the Perak Constitution does not empower His Highness to dismiss the Mentri Besar. The manner in which the Mentri Besar is to be removed from office is as provided for under Article 16(6), through a refusal to dissolve the Assembly at the request of the Mentri Besar when the Mentri Besar has ceased to command the confidence of the majority of the Assembly.

It is apparent that His Highness had moved on the assumption that the request for dissolution was prompted by the Mentri Besar having ceased to command the confidence of the majority. This may have been based on a misapprehension of the situation and the appeal to the Sultan to dissolve the Assembly for reasons other than confidence. If so, then the directive to resign was arguably not tenable.

However, it could be said that all things considered His Highness had come to the conclusion that in any event the Mentri Besar no longer commanded confidence. In this context, the central question is whether His Highness was empowered to conclude that the incumbent Mentri Besar no longer commanded the confidence of the Assembly without there having been a vote of no confidence.

There is precedent. The Federal Court had in 1966 (Stephan Kalong Ningkam) determined that a similar provision of the Sarawak Constitution required there to be a vote of no confidence taken in the Assembly before the Chief Minister was obliged to resign. The decision was based on several key factors that I believe to be relevant to this discussion. These were:

• the Sarawak Constitution did not empower the Governor to dismiss a Chief Minister

• the phrase “confidence of the majority” was a term of art and could be read as implying the need for a vote of confidence or a vote on a major issue. The Court took into consideration the fact that the Sarawak Council Negri should, in principle, manage its own affairs.

• no vote had been taken in the Council Negri and instead the Governor had come to his conclusion based on extraneous matters, particularly confidential letters. The Court observed that members expressing a view outside the Council Negri might very well take a different position in it when under the scrutiny of the public. This was of particular significance as out of the forty-two members of the Council Negri only twenty-one had indicated their not supporting the incumbent Chief Minister.

It could therefore be credibly argued that the Perak Constitution requires the tabling of a vote of confidence in the circumstances. The factors considered by the Federal Court have great significance to the scenario at hand, one as ambiguous as that which the Federal Court was faced with in 1966.

Much will now depend on what the incumbent Mentri Besar does. In Stephan Kalong Ningkam, the Chief Minister concerned took it to court and won. The Federal Court declared the Governor as having acted unconstitutionally and the dismissal of the Chief Minister invalid. Mohamad Nizar could attempt the same course.

It would be regrettable if the situation were forced to escalate to that level. Litigation of that nature, any nature for that matter, will be disruptive at all levels. With the Barisan Nasional moving in already though, it seems that there is little choice in the matter. Walking away is simply not an option that the constitution and the people and democracy will allow for.

In the meanwhile, we will have to buckle in for what has become a full-blown constitutional crisis.

(Malaysian Insider; 6th February 2009)

MIS

Re-establishing Malaysia

Re-establishing Malaysia

I think back with amusement to how much I disliked constitutional law as a subject when I was studying law. No matter what, I just could not sink my teeth into it. The doctrine of separation of powers, matters of governance, the multi-faceted role of legislature and so on were not exactly riveting material. And as tempting as it is to blame this seeming aberration on the way I was taught, this would not be the entire truth; there were simply more exciting things in life.

Little did I know that not only would constitutional law feature tremendously in my legal practice as an advocate and a human rights activist, it would also infuse my life in so many other ways as I attempted to understand and give words to my feelings about all that was happening around me. In an increasingly ambiguous environment, I found myself turning more and more to the constitution for certainty.

I did this for one reason. As a society evolves, it challenges itself. Memories being short, even fundamentals are not spared as the scrutiny of those in search of opportunities - social, political or intellectual - is brought to bear on even the most sacred of truths. And though democracy thrives on the clashing of ideas and opinion this entails, democracy also requires there to be basic, unassailable certainties for constructive debate. The ideas that form the picture that is Malaysia, in all their swirling intensity, must fit into a frame. That frame is the Federal Constitution.

As the supreme, or basic, law of the nation, it is intended to give structure to our lives by setting in place a framework for how it is we are to conduct ourselves as a society. By precluding arbitrariness in governance and protecting fundamental liberties, it is intended to provide for sanity in the mad world of politics and government, and the unavoidable excesses of the same.

In the last decade or so, the constitution has however taken a beating. Sadly, much of this has been at the hand of the Federal Court, an institution that was intended to protect it. The net effect of a string of decisions in this period has been the blurring of constitutional positions on key aspects of the system of governance to the extent that we have rapidly lost definition as a nation and the basic structure that is so vital for our continued sustainability has been put under threat.

Though the Islamic “conflicts of jurisdiction” cases have been the most public, this is not the only aspect that has been thrown into confusion by other equally controversial, ambiguous and precariously founded decisions of the court. For instance, it recently declared that the doctrine of separation of powers no longer had a place in Malaysia, an astounding conclusion that runs counter to our system of democracy and does away with the checks and balances so vital to fair and just governance. This is of grave consequence particularly when we consider how the same court not too long ago affirmed Parliament’s right to immunize Executive action from judicial scrutiny by ousting the court’s power to review. In doing so, the court allowed Parliament to place the Executive above the law.

There are other instances where the court approached its subject matter too myopically and with insufficient consideration of the policies that its decisions would invariably create or reinforce. The judicial attitude that has led to the articulation of parliamentary, and not constitutional, supremacy and all that entails has resulted in an unhealthy political environment that lends itself to oppressiveness, divisiveness and intolerance, the full effect of which we are yet to appreciate.

The Federal Court cannot wash its hands of these difficulties by saying that is bound by the law and as such merely applies it. Like apex courts of other nations, the Federal Court is the principal guardian of the constitution and has the power to strike down laws and actions that run counter to it, even those that are aimed at undermining the power of the Judiciary. The court defines our way of life through its interpretation and application of the constitution. That many of the difficulties currently being experienced in this society - from the jurisdiction of the syariah courts to the arbitrariness of governance - can be traced back to decisions of the court only goes to show the extent of the court’s immense responsibility to society.

For this reason, the Federal Court must confront the fact that its decisions do not operate in vacuum or isolation and impact on nation building. More than ever, the court holds the fate of the nation in its hands. It is not too late for the court to act decisively and with a clear vision of our long-term needs to reestablish the framework required for this nation to remain united and capable of growing sustainably for all Malaysians.

(Malay Mail; 19th August 2008)

MIS