Archive for category Constitution
— Clive Kessler
The Malay Mail Online
October 16, 2013
OCT 16 — The more I think about the Court of Appeal’s recent judgment in the case of the government’s appeal against the lower court’s determination in favour of The Herald, the crazier, and more infuriatingly wrong-headed, it seems.
The legal reasoning of Justice Mohamad Apandi Ali seems not just “innovative” but arguably bizarre and, to the historically minded, even absurd. It seems hardly sustainable.
It rests upon and promotes the radical idea that the enjoyment by minorities of their religious freedom “in peace and harmony” was, as a form of words, not intended as a constitutional guarantee or assurance to them but as a way of making that freedom of theirs subject to the pleasure, discretion and the inflationary whims of the majority.
With that “contrarian” spin, these words are now made to serve as the practically enabling condition or mechanism of the minority’s subordinate and infinitely ever more constrainable situation.
That is to say, of a situation where the exercise of any of the potential freedoms of religious conscience that the minority might claim is now to be made conditional upon continuing, and always revocable, majority consent — upon the majority’s increasingly reluctant and unlikely forbearance. Read the rest of this entry »
Has Najib’s 1Malaysia Policy degenerated in four years into a 2Malaysia Policy with different interpretations of constitutional guarantee of freedom of religion for two different regions in Malaysia?
Has Prime Minister Datuk Seri Najib Razak’s 1Malaysia Policy degenerated in four years into a 2Malaysia Policy with different interpretations of the constitutional guarantee of freedom of religion for two different regions in Malaysia?
This is a question that cries out for answer after the Minister in the Prime Minister’s Department Tan Sri Joseph Kurup told Sin Chew Daily that the Cabinet had decided after the Court of Appeal judgment on the “Allah” case that in keeping with the earlier 10-point solution, the word “Allah” can be used by Sabahan and Sarawakian Christians in their worship, including in the Malay-language bible Al-Kitab.
Many queries have been spawned, including whether the Cabinet can override the Court of Appeal judgment by executive fiat, which no lawyer, whether in Cabinet, government, Parliament or in the country would ever claim.
What then is the legality, legitimacy and longevity of the Cabinet decision attempting to override the Court of Appeal “Allah” judgment? Read the rest of this entry »
NEWS ANALYSIS BY THE MALAYSIAN INSIDER
October 17, 2013
There is irrationality and irony in the Cabinet’s decision that the word Allah can be used in worship and in the Bahasa Malaysia bibles in Sabah and Sarawak – because one cannot compartmentalise religion by regions.
Nor can the Cabinet override the court’s decision.
Or the fact that the Bahasa Malaysia section of the Catholic weekly, the Herald, is actually meant for East Malaysians where most of the Catholics speak and read the national language more than anywhere else in the country.
After all, what are the chances that a non-Catholic would be able to lay his or her hands on one of the 14,000 copies printed weekly in Malaysia for some one million Catholics in the country?
If anything, the Cabinet decision that the Court of Appeal ruling would not affect Christians in Sabah and Sarawak shows that at the end of the day, everything is about politics. Read the rest of this entry »
Oct 16, 2013
COMMENT The Malaysian Bar is deeply concerned by the decision of the Court of Appeal delivered on Oct 14, 2013 in what is commonly referred to as the ‘Herald’ or ‘Allah’ case.
The concerns arise from the court’s interpretation of Article 3(1) of the federal constitution on the status of Islam and other religions and Article 11(1) and (4) on the fundamental right to profess and practice a religion.
Any interpretation of the constitution must invite the greatest scrutiny as it impacts on the fundamental freedoms guaranteed to all citizens. Read the rest of this entry »
Oct 15, 2013
The Court of Appeal was wrong in its decision banning Christian weekly Herald from using the word ‘Allah’ to refer to God in Bahasa Malaysia, said a constitutional law expert.
“By linking religious rights under the chapter on fundamental liberties with Article 3(1) of the Federal Constitution which effectively makes Islam the benchmark for everybody, this runs counter to the general meaning of Article 3(1) of the Federal Constitution itself,” Dr Abdul Aziz Bari told Malaysiakini today.
“The plain meaning of Article 3(1) is simply this: that despite the fact that Islam has been made official religion, non-Muslims may go on practising their religions freely without restriction,” said the former Universiti Islam Antarabangsa (UIA) law lecturer.
He said that the implication of the decision is that it might make non-Muslims feel “unsafe” and this is contrary to the essence of the Article 3 in the constitution.
Abdul Aziz also noted that the court decision yesterday sounded like a “policy decision” – a decision that is not strictly based on law. Read the rest of this entry »
by Debra Chong
The Malay Mail Online
August 20, 2013
KUALA LUMPUR, Aug 20 — In the face of Malaysia’s rising religious conservatism, a civil court judge has boldly ruled on reason and common sense to uphold a Muslim storekeeper’s constitutional right to sell a book Islam’s gatekeepers here found offensive.
The court case involving the local Borders’ sale of Canadian author Irshad Manji’s book “Allah, Liberty and Love” has been closely-watched since it hit national headlines last year after Islamic enforcement officials seized the stock and charged the store manager Nik Raina Nik Abdul Aziz with violating publication and distribution laws.
Five months after pronouncing the Federal Territories Islamic Religious Department (JAWI), the home minister and the minister in the Prime Minister’s Department in charge of Islamic affairs guilty of abusing their powers to illegally prosecute the bookstore’s Muslim manager, Datuk Zaleha Yusof of the Kuala Lumpur High Court has finally released her grounds of judgment.
Though couched in the language of the court, the judge’s strongly-worded explanation kept to a strict interpretation of the law that has given hope to Malaysians that their civil liberties as laid down in the country’s founding document remain as robust as the day they were conceived half a century ago.
“I am satisfied that the applicants have shown existence of illegality, abuse of discretionary powers, irrationality, unreasonable exercise of power, unconstitutionally and that there exists procedural impropriety on the part of the respondents,” Zaleha wrote in her grounds of judgment released last week. Read the rest of this entry »
- Dr. R. Rueban Balasubramaniam
The Malaysian Insider
August 19, 2013
After the recent general election, Malaysian democrats have again been frustrated. Once more, the United Malay National Organization (“UMNO”) emerged victorious, though many believe this was the most fraudulent election in Malaysia’s political history. Now, democrats are redoubling their efforts to reveal such fraud and to seek electoral reform at least with an eye to winning the next election.
Democrats take solace in the fact that UMNO is on very vulnerable political terrain; it cannot compete fairly within upon a democratic playing field, but they should not just exert political pressure on UMNO. They can use another strategy: public interest litigation designed to embarrass UMNO’s ethnocratic political program, a program rooted in an authoritarian and discriminatory principle of Malay political dominance. Through such litigation, democrats can cast further doubt on UMNO’s claim to exercise legitimate political rule.
At present, Malaysia has no tradition of public interest litigation. This, despite the existence of a supreme written Constitution that contains a bill of rights and provisions that protect important group interests within a rubric of legal equality and provisions that express the principles of the separation of powers and federalism, which guard against the excessive concentration of power in any single organ of government. It is plain that the constitutional framework imposes legal discipline upon political power in a way that is hostile to authoritarian rule that is readily amenable to public interest litigation. Read the rest of this entry »
— Ravinder Singh
The Malay Mail Online
July 21, 2013
JULY 21 — The game plan was simple. Malaysia is supposed to be a democratic country. That was the foundation on which it was born. The Federal Constitution is there to prove it.
On the other hand, after the time of Tunku Abdul Rahman, the Umno-dominated Alliance (changed to Barisan Nasional later) felt that it should remain in power all the time, for reasons best known to it.
However, this had to be done in a “democratic” way to show the world that democracy was alive. A simple way to do this was to move the goalposts from election to election. A game plan was mooted to do this constitutionally. Using its two-thirds majority in Parliament, which is needed to amend the very same constitution, the plan was put into action. First, the 15 per cent difference allowed in the number of voters in the different constituencies was changed to 50 per cent.
A further amendment was made some years later which removed the 50 per cent figure and left only the words “approximately equal” for the Election Commission to interpret as it chose fit. This resulted in some constituencies becoming umpteen times bigger than others. It was no co-incidence that these huge constituencies were pro-opposition voters.
This game of changing the goalposts had to be further refined to make it easier to accurately identify the sentiments of small pockets of voters. This was done by changing the vote-counting system. Instead of taking all the marked ballots to a central counting station, where a different group of election workers would do the counting, the counting was now to be done in the very room that the ballots were cast, by the same election workers.
This ballot counting in the balloting rooms was a very well disguised operation for spying on the voters. Read the rest of this entry »
The Malay Mail Online
July 15, 2013
KUALA LUMPUR, July 15 – The proposed establishment of the Independent Police Complaints and Misconduct Commission (IPCMC) is consistent with the Federal Constitution, according to Tun Mohamed Dzaiddin Abdullah.
Offering his views on IPCMC’s legitimacy under the Federal Constitution, the former chairman of the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police (PDRM) made a reference to Article 140.
“Article 140 thereof provides that Parliament may by law provide for the exercise of Police Force Commission’s disciplinary control over members of the police force in such manner and such authority as may be provided in that law.
“Therefore, there can be no doubt about its consistency with the Federal Constitution,” he said in a statement today.
His remarks followed a recent statement by Home Minister Datuk Seri Ahmad Zahid Hamidi that the proposed setting up of IPCMC would result in “overlapping jurisdictions and laws among the country’s enforcement agencies”, and was “not in line with the Federal Constitution and was against the concept of justice”. Read the rest of this entry »
Jul 12, 2013
QUESTION TIME Who decides policy in this country? Is it the police? Are we as a nation supposed to be subservient to the police and ask their permission first before we implement anything? Are they, a government department, allowed to lobby actively for what they want and even against things that Parliament has passed?
The way the police have launched a campaign for the return of the notorious Emergency Ordinance (EO), one would think that their crime-fighting abilities have been crippled as a result of the repeal of that oppressive piece of legislation. That’s far from the truth.
The Emergency Ordinance and the infamous Internal Security Act, were repealed in 2011 and replaced with the Security Offences (Special Measures) Act 2012 and changes to other laws. Together with this, the state of emergency that prevailed in this country since independence under three different proclamations was lifted.
A cursory look at the Emergency Ordinance of 1969 and some of its orders made in the aftermath of the May 13, 1969 racial riots gave considerable power to the police and government of the day to override any and all provisions with regard to personal rights. It was terribly draconian – a police state in other words where anyone could be arrested and detained. Read the rest of this entry »
By Kee Thuan Chye
10th July 2013
How ridiculous it is that the prime minister says one thing and his home minister says the opposite. Last year, Najib Razak announced that the Government would repeal the Sedition Act and replace it with the National Harmony Act, but now Zahid Hamidi says the Cabinet has decided to only “amend and review some aspects of the Act, not to abolish it”!
Another minister, S. Subramaniam, is neither here nor there about it when asked about the matter. He takes the typical noncommittal MIC approach by saying that the idea of repealing the Act was a “suggestion” by Najib. “He has to bring it back to the Cabinet and state his suggestions,” Subramaniam says.
Only a suggestion? Subramaniam was a member of the Cabinet when Najib announced the repeal in July 2012 and yet he says it was only Najib’s suggestion? Is it because he dare not tell the truth?
Meanwhile, Tourism Minister Nazri Aziz contradicts Zahid and confirms that the Cabinet did indeed agree to repeal the Sedition Act last year. He even says the Attorney-General’s Chambers is looking into framing the replacement law. Unlike Subramaniam, he is unequivocal about it.
“It’s a public commitment made by the prime minister. I don’t see why any minister would go against it,” he adds. Read the rest of this entry »
Koon Yew Yin
10th July 2013
Many Malaysians are aware of the first time when the people of Perak had their state election results in which they had chosen the Pakatan Rakyat (PR) coalition to govern the state overturned by trickery and deceit. At that time in 2009, three state legislators elected on PR tickets defected to the Barisan Nasional (BN) in a move which was masterminded by the Prime Minister, Najib Razak, as head of Perak’s BN.
Subsequently, the Sultan of Perak refused Menteri Besar Mohammad Nizar Jamaluddin’s request to dissolve the state assembly and call for new elections. Instead, Barisan Nasional (BN), with support from the three defecting assemblymen, formed the new – and in the minds of Perakians – illegitimate state government.
Close State Election Results Favoured BN
In the recent 2013 elections, history has repeated itself. This time the election appears to have been stolen with more conventional methods. According to the official tally, BN won 31 seats to the PR’s 28 in a closely contested race. But on close analysis of the results, we find that BN won 8 of the state seats (and 2 parliamentary ones) with wafer thin majorities. State seats that BN candidates won with very small margins can be seen from the table below Read the rest of this entry »
– Ravinder Singh
The Malay Mail Online
July 07, 2013
JULY 7 – Nazri is correct in saying that it is an “open secret” that the Conference of Rules (COR) can object to any law (or any sections, words or phrases in it). That is the prerogative of the Rulers.
On the other hand, it is common sense that if the COR does object to any part of a law that has been sent to it after going through the Cabinet and Parliament, the COR must send it back to the Cabinet / Parliament for the parts objected to to be reviewed, amended or dealt with in any other way deemed proper by the Cabinet / Parliament.
It is also common sense that after having approved / amended a bill, it is not the function of the COR to send it for printing / publication / gazetting. This is the duty of the executive.
So how is it that up today not only Nazri but the whole Cabinet and Parliament do not know whether the COR had actually objected to the Cabinet decision of April 2009 on the issue of the conversion of minors? Read the rest of this entry »
The Malay Mail Online
July 04, 2013
KUALA LUMPUR, July 4 — Some of Prime Minister Datuk Seri Najib Razak’s Cabinet have spoken out in dissent over a Bill that would let a single parent or guardian convert their child to Islam without their partner’s consent.
The proposed change has sparked protests from the prime minister’s biggest coalition partners, as well as leaders of religious and ethnic minorities in the Muslim-majority nation. The row comes as Parliament resumed last week after May’s general election which saw support for the government slide to its lowest level in more than 55 years.
“Certain sections of the Bill can be detrimental to non- Muslims,” Datuk G. Palanivel, a minister who heads the MIC in Najib’s governing Barisan Nasional coalition, said in a phone interview. “The government should propose a fairer version of the Bill, taking into account individual rights and civil liberties.”
The heads of some other parties representing minority groups in Najib’s coalition, including the MCA, have also protested the proposed amendment, testing the alliance’s unity as economic growth slows. Net foreign direct investment dropped 17 per cent last year to US$10.1 billion (RM31.3 billion) as spending in neighbours including Singapore and Indonesia increased, according to a report by the United Nations Conference on Trade and Development last week. Read the rest of this entry »
By Kee Thuan Chye
4th July 2013
The amendment to Clause 107(b) of the Administration of Islamic Law (Federal Territories) Act 2013, tabled for passing this month, is going to be one helluva bill. Voting on it will see whether representatives of certain component parties within the ruling Barisan Nasional (BN) coalition will break from the party line and vote according to their own conscience.
The MCA, the MIC and Gerakan, avowedly looking after the interests of non-Muslims, have been critical of the bill. It will therefore be a real test of their integrity to vote against it. Abstaining from voting will not be enough. They must walk their talk.
From the layman’s point of view, the bill seems to be simply about granting either parent of a child below the age of 18 the right to convert the child to Islam. The front-page headline of the July 3 edition of theSun sums it up: ‘Mom or dad?’ And if one were to apply simple logic, the answer would be obvious. Since both parents gave life to the child and are responsible for its growth, why should it be that only one is enough to decide?
But the issue is not so simple. It never is when it comes to religion. And more than that, this current bill indicates an about-turn by the Cabinet. Read the rest of this entry »
Cabinet should withdraw Section 107(b) of Administration of Religion of Islam (Federal Territories) Bill 2013 to give time for Malaysians to achieve national consensus on conversion of minor children to Islam in keeping with the Constitution and to promote family integrity, freedom of religion and national harmony
The Cabinet should withdraw Section 107(b) of the Administration of Religion of Islam (Federal Territories) Bill 2013 to give time for Malaysians to achieve national consensus on conversion of minor children to Islam in keeping with the constitutional scheme contained in Article 12(4) of the Federal Constitution, read with Article 160 and the Eleventh Schedule, and to promote family integrity, freedom of religion and national harmony.
Former Cabinet Minister, United Pasok Momogun Kadazandusun Murut Organisation (Upko) head Tan Sri Bernard Dompok said yesterday that the provision is a contradiction to the 1Malaysia concept of acceptance, inclusiveness and moderation, suggesting a full discussion by Barisan Nasional on this issue and related religious issues before proceeding with the provision in Parliament.
Dompok said that a few months ago when he was still in the Cabinet, he had asked for the withdrawal of a paper on the bill in Cabinet as he felt that an earlier Cabinet decision on the Law Reform (Marriage and Divorce) Act 1976 should be implemented instead.
Section 107(b) of the 64-page 116-section Administration of Religion of Islam (Federal Territories) Bill 2013 provides that the consent of one parent alone is sufficient for the conversion of minor children to Islam, which is not only contrary to the Constitution but contravenes the Cabinet decision announced on April 23, 2009 that a single parent cannot convert a minor. Read the rest of this entry »
By Yiswaree Palansamy
The Malaysian Insider
JUN 29, 2013
A leader of the Barisan Nasional (BN) coalition expressed disappointment today with the Cabinet for tabling a controversial bill on unilateral conversion involving children, which he said went against the 1Malaysia concept.
United Pasok Momogun Kadazandusun Murut Organisation (Upko) head Tan Sri Bernard Dompok said the intention to table the bill is a contradiction to the 1Malaysia concept of acceptance, inclusiveness and moderation.
“I am surprised and disappointed that this bill was approved by Cabinet for tabling at Parliament,” he said in a statement to the media today.
Dompok said that a few months ago, he asked for the withdrawal of a paper on the bill in Cabinet as he felt that an earlier Cabinet decision on the Law Reform (Marriage and Divorce) Act 1976 should be implemented instead. Read the rest of this entry »
June 29, 2013
A non-issue has become a contentious point by some BN MPs. Debates and opposing views on the King’s Speech are to be treated and judged the same as the slurs made against the King outside parliament – as rebellion against the King. What is happening here?
The standards of mob or crowd judgement –hysterical, unreasonable and clueless are being adopted by mob leaders inside parliament.
The leaders are easily identified- they shout the loudest in parliament and appoint themselves as leaders and spokesmen for the mob outside.
Since Independence, Royal Addresses have always been followed up by adversarial debates.
That has been the practice of parliamentary democracy.
We come to the House to debate on issues – the agenda for ensuing debates being set down by the Royal Addresses. Read the rest of this entry »
Muhyiddin’s should stop his “double-speak” as his open threat of 47% minority government penalizing 51% majority of voters is the latest subversion and not defence of national institutions of the country
Deputy Prime Minister Tan Sri Muhyiddin Yassin should stop his “double-speak” as his open threat on Saturday of 47% minority government penalizing 51% majority of voters is the latest subversion and not defence of national institutions in the country.
It is surprising that Muhyiddin could be guilty or such “double speak” uttering totally contradictory sentiments at the same function, i.e. the BN thanksgiving function in Kundang Ulu, Johor.
Although Muhyiddin claimed that Malaysian voters have conveyed a clear message in the 13GE that they want the government to be more stern and bold in defending the important institutions in the country, “enforcing the law, upholding the country’s Constitution, and fighting crime effectively as well as eradicating corruption”, Muhyiddin has completely nullified these high-sounding sentiments with his threat to discriminate and penalize 51% of the popular vote who supported Pakatan Rakyat and Datuk Seri Anwar Ibrahim in contrast to the 47% of the voters who supported Barisan Nasional and Datuk Seri Najib Razak.
Surely, Muhyiddin’s declaration that the BN administration will direct “greater assistance” towards the communities that backed it during the general election, implying a punitive policy of neglect and discrimination for the 51% majority of the popular vote, is the most powerful proof that Najib has a long way to go to prove that he is Prime Minister of all Malaysians and not just 47% of Malaysians!
Or do we have a situation where we have Najib who wants to be Prime Minister of all Malaysians but Muhyiddin only wants to the Deputy Prime Minister for 47% of Malaysians?
When Muhyddin talked about the people’s “clear message” in wanting the government to defend the important institutions in the country, he has missed the Elephant in the Room as it is UMNO/BN who must bear the full responsibility in the past three decades for undermining and subverting the key national institutions in the country. Read the rest of this entry »
by Tommy Thomas
Jun 1, 2013
COMMENT The first task that Najib Abdul Razak faced upon being sworn in as prime minister on May 6, 2013 after leading the BN to victory in the 13th general election, was to form the cabinet.
Constitutionally, the prime minister does not have a free hand in his choice of cabinet ministers. Article 43(2)(b) of the federal constitution provides that cabinet members shall be “members of either House of Parliament”.
Traditionally, the cabinet is dominated by members elected by the people to serve in the Dewan Rakyat. However, prime ministers often do appoint a few cabinet members from the Senate (Dewan Negara).
It is important to keep in mind that unless a person is a member of either House of Parliament, he cannot be a cabinet member. This is consistent with the position in other parliamentary democracies.
Further, our deputy ministers and parliamentary secretaries also have to be parliamentarians, as per Articles 43A(1) and 43B(1) of our federal constitution. Only political secretaries are exempt from this strict requirement.
It was therefore shocking to note the statement made by Paul Low on May 24 that he has not yet been sworn in as a senator. Yet he “purportedly” took the oath of office as a cabinet minister before the Yang di-Pertuan Agong on May 16.
Article 43(6) of the constitution reads: “Before a Minister exercises the functions of his office, he shall take and subscribe in the presence of the Yang di-Pertuan Agong the oath of the office and allegiance and the oath of secrecy set out in the Sixth Schedule.”
The oath of office and allegiance that Low had to take under the Sixth Schedule of the constitution reads: “I, ……., having been appointed as a member of the Senate, do solemnly swear that I will faithfully discharge my duties as such to the best of my ability, that I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its constitution.”
One other cabinet minister (Abdul Wahid Omar) and three deputy ministers who have not been appointed senators also took their oath of office before His Majesty on May 16.
All these appointments are plainly and clearly unconstitutional.
If they uttered the words stated above in taking their oath of office before the Yang di-Pertuan Agong, they told an untruth because none of these five men had been appointed as a senator prior to becoming a minister or deputy minister. Read the rest of this entry »