FMT: Laws Against Quran And Sunnah Are Void, Said Tun Fairuz

25 03 2017

I am very proud to read what was said by Tun Ahmad Fairuz in Free Malaysia Today’s report, “Ex-CJ: Laws that are against Quran and Sunnah are void”.

FMT wrote, “Explaining his interpretation, Ahmad Fairuz who was the chief justice from 2003 to 2007, cited a Privy Council judgement on a case in Singapore, where it said for a law to be valid, it must conform to the fundamental rules laid down by English Common Law.”

“This view seems to be accepted in Malaysia too. But as Islam is the religion of the federation, surely the fundamental principles of the law should be based not only on English Common Law, but (also) on the shariah law.

“I want to stress the aspect of judiciary in the definition of Islam where the Quran and Sunnah are the main sources of Islamic laws.

“Article 4 of the Federal Constitution states that laws which are against the Federal Constitution are void, on the part of the contradicting provisions. And hence, laws that are against the Quran and Sunnah will also be void.”

Explaining about the interpretation of Article 3(1) Tun Fairuz was reported saying:

“In the case of Lina Joy, when I was the chief justice, I said Islam was also a complete way of life that included all aspects of human activities, including judiciary, politics, and economy among others.”

FMT further wrote, “Hence, Ahmad Fairuz, reading Article 3 and 4 together, interpreted the Federal Constitution as making Islamic law the second most supreme legislation.”

Therefore for those who are constitutionally illiterate and shouting that Malaysia is a secular country and the proposed amendment of Act 355 is unconstitutional, please attend Tun Fairuz’s next lecture to learn more about the Federal Constitution from our former Chief Justice.

 

 





Constitutionally Illiterate!

23 03 2017

“We cannot accept Shariah law, for Malaysia already has a supreme law, which is the Federal Constitution. Article 4 of the Constitution declares it simply: ‘This Constitution is the supreme law of the Federation’,” Baru said as reported by Borneo Post Online with the tittle, “Baru concurs with Abg Jo on concerns over proposed amendment to Act 355”.

Constitutionally illiterate! This senseless statement makes me wonder if the PKR leader knows what he is trying to say. In fighting against a law that has nothing to do with him as a non-Muslim, the PKR man said, “Hadi Awang and Umno may say this is Syariah and not hudud, but as far as I understand it, hudud is part of the Syariah and the proponents had said this bill was to pave way for hudud punishments in Kelantan. This attempt at RUU355 is but a political contest between Umno and PAS to champion the implementation of Syariah Law in Malaysia.”

Yes, Article 4 of the Constitution declares that the Federal Constitution is the supreme law of the Federation, therefore the Shariah Court system is constitutional because Article 121(1A) confers the Syariah Courts systems as part of the Malaysian legal systems. Federal Constitution as the Supreme law of the land must not be misinterpreted and must be read as a whole.

In the judgement of the Federal Court case, Loh Kooi Choon v The Government of Malaysia [1977] 2 MLJ 187, the then Federal Court Judge, DYMM Almarhum Sultan Azlan Shah stated that, “Constitution as the supreme law, unchangeable by ordinary means, is distinct from ordinary law and as such cannot be inconsistent with itself”. Hence, it is wrong for Baru Bian to cherry-pick what he likes or bypassing other Articles in order to make his own interpretation to suit his argument and agendas.

If Baru Bian respects the Article 4, he must respect the fact that the Article 3(1) that says, “Islam is the religion of the Federation” for it is placed before the Article 4, hence stating the importance of Article 3. In the Court of Appeal’s judgement of the case, Titular Roman Catholic Archbishop of Kuala Lumpur v. Menteri Dalam Negeri and Kerajaan Malaysia, the then Federal Court Judge, Tan Sri Mohamed Apandi Ali explained that , “The Article places the religion of Islam at par with the other basic structures of the Constitution, as it is the 3 rd in the order of precedence of the Articles that were within the confines of Part I of the Constitution”. So by denying the acceptance of the Shariah laws, Baru Bian is literally against the Article 3(1) and therefore he is also against Supreme Law of the Federation.

If Baru Bian reads the Federal Constitution, he’ll understand that as the supreme law of the land, the Constitution defines the principles of our country, the sovereignty of Islam as the religion of the country, the sovereignty of the Rulers, the rights of the people, judicial system and other important laws but the Federal Constitution does not describe punishments and offences. It is the judiciary that interprets and applies the law in the name of our country through Act, Ordinance, Enactment and others. And there is no unconstitutional elements in the proposed amendment of the Act 355 because the Act 355 is an existing law, the proposed amendment is only to increase the Syariah punishments which are currently too low and not to introduce new sets of laws or seeks to widen the scope of its current jurisdiction.

Furthermore has Baru Bian forgotten or unaware of Article 11(3)(a) which says every religious group has the right to manage its own religious affairs? After all, why must the non-Muslims try so hard to deny the constitutional rights of the Muslims to manage our own religious affairs as granted by Article 11(3) of our Federal Constitution?

This is not a Hudud Bill and it is impossible for the amendment of Act 355 to enable the implementation of Kelantan’s Syariah Criminal Code II (1993) Enactment 2015 because it is not within the power of the Syariah Courts to implement capital punishment nor the jurisdiction over offences punishable under the Penal Code.

So, please stop debasing the Federal Constitution and as a leader, please at least learn to respect and uphold our supreme law.

 

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Act 355: Another Baseless and Illogical Arguement from G25

22 03 2017

Named as a “group of prominent Muslims” by DAP, G25 is a group of people who are so clueless about the teaching of Islam that their arguments and ideas regarding Islam are so mind-blowing and out of context, making them good friends of DAP’s Penang Institute. Sharing DAP’s stance regarding the amendment of Act 355, G25’s arguments on this matter are as baseless and illogical as those given by DAP. Below are my answers (in blue) to G25’s article in red:


To all honourable Members of Parliament,
We, G25, anxiously appeal for a promise from each Honourable Member of Parliament to not support/cancel the debate on PAS’ private motion to amend Act 355, or Syariah Courts (Criminal Jurisdiction) Act 1965, which will now be debated in Parliament.
We hope the honourable MPs would ponder upon and note that any amendment to Islamic laws should be done within the framework of the Federal Constitution.
There is no law saying that Act 355 or any other Acts related to the Islamic Laws cannot be amended. The Hadi Private Bill to amend the Act 355 is being done within the framework of the Federal Constitution and  I’m sure that the members of G25 are aware that this is not the first time the Act 355 is amended. 

Specifically, Article 4 provides for the superiority of the federal law and civil courts over state Islamic enactments and shariah courts. This ensures the existence of only one system of justice governing all Malaysians.
A misleading fabricated statement. Syariah Courts is part of Malaysian legal systems as confers by Article 121(1A). There is no such thing as,“This ensures the existence of only one system of justice governing all Malaysians”.
1)
  Article 4 states that the Federal Constitution is the Supreme law and Article 121(1A) of the Federal Constitution says:

The courts referred to in Clause (1) shall have no  jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. 

2) In the judgement of the case, ZI Publications Sdn Bhd and Anor v Kerajaan Negeri Selangor, the Federal court ruled in a unanimous decision that the section 16 of the Syariah Criminal Offences (Selangor) is valid and not ultra vires the Federal Constitution, Tan Sri Md Raus Sharif said:

Federal Constitution allows the Legislature of a State to legislate and enact offences against the precepts of Islam. Taking the Federal Constitution as a whole, it is clear that it was the intention of the framers of our Constitution to allow Muslims in this country to be also governed by Islamic personal law.

Limitations on the powers of the shariah courts:
Item 1 in the Ninth Schedule of the State List of the Federal Constitution states that the shariah courts “shall not have jurisdiction in respect of offences except in so far as conferred by federal law”. The purpose of this provision is for Parliament to have oversight and control over offences, including the nature of punishments created by state enactments, so that the state legislatures do not have a free hand to create offences or to prescribe sentences.
1) Act 355 is a Federal Law and not a State Law. The Act confers jurisdiction upon Courts constituted under any State law for the purpose of dealing with offences under Islamic law.
2) “Item 1 in the Ninth Schedule of the State List of the Federal Constitution” does not exist. What we have is, Item 1 of the State List in the Ninth Schedule of the Federal Constitution and it proves that the Syariah Court system is legal and constitutional.

Increasing status of the syariah courts complicates enforcement:
The desire to raise the status of the shariah courts to be on a par with the civil courts is worrying and very likely will shock our multiracial community as it will raise questions on the direction of the country’s legal system.
Is G25 unaware of the existence of Article 121(1A)?  In 1988, the then Prime Minister, Dato’ Sri Dr. Mahathir Mohamed tabled the Constitution (Amendment) 1988 Bill in Parliament to add Clause (1A) to the Article 121 which raised the status of the Syariah Courts. That happened 29 years ago and it had not “shock our multiracial community”. G25 must stop debasing the Syariah Courts.

A secular system of justice existing side by side with the Islamic system is not only unconstitutional but will cause considerable confusion and uncertainty in the enforcement of law and order.
Is G25 saying that Articles 74(2) and 121(1A) is unconstitutional and Item 1 of the State List in the Ninth Schedule of the Federal Constitution does not excise?

A big risk with investors:
Economists and international experts who have studied Malaysia’s remarkable economic development over a relatively short period to become one of the most advanced economies in the developing world, have always cited its system of law and administration as a key factor in attracting foreign and local investors to do business here. It is a system which foreigners are familiar with because it is similar to what they find in their own countries. Their presence is most important for the transfer of knowledge and technology so that Malaysians can benefit by developing our own skills to compete in the world market. Our country will be taking a big risk with foreign and local investors if we have a system of law which is moving away from its original character to become more religiously oriented and less tolerant of modern lifestyles and values.
Act 355 is not a new law  and it will not change our current “system of law”. I wonder if:
1) To G25, is “modern lifestyles and values” means lifestyles and values which are against the teaching of Islam?
2) In what way does the amendment of Act 355 can be bad for our economy in regarding to “attracting foreign and local investors to do business here”?
3) G25 really thinks that a “religiously oriented” Muslim society is bad for the economy?

A step towards hudud:
Supporters of the PAS bill to amend Act 355 insist that there is no intention to introduce hudud. Malaysians find this hard to believe as Kelantan, which is ruled by PAS, has already passed the Syariah Criminal Code II (1993) Enactment 2015, prescribing hudud punishment for zina (illicit sex), murder, theft, robbery, sodomy, consumption of liquor and apostasy.
The amendment of Act 355 cannot enable the implementation of the current Syariah Criminal Code II (1993) Enactment 2015. The amendment is only to enable the Syariah Court to increase its punishments limits, but its jurisdiction will still be limited to the crimes listed under the Item 1 of the Second List in the Ninth Schedule of the Federal Constitution, which does not include murder, robbery and theft as in hudud. 

But State law is currently prevented from being enforced because of Act 355.
Another false fact. Act 355 confers the jurisdiction upon States’ Syariah Courts therefore it does not prevent the enforcement of State laws.

Prioritising good governance in public institutions
A well-governed country with laws and governing institutions that provide social justice for the poor and the needy should be a priority for the country’s social and economic progression. This would be more Islamic than the implementation of hudud. We should be proud that our shariah index is higher than other Muslim countries because our children are better educated; health and medical facilities are available in all corners of the country; unemployment and poverty rates are low; and our youth can look forward to a brighter future. Higher priority should be given towards improving the standards of governance and to strengthen the institutions of law and order so as to promote integrity and clean administration in the country. These governing qualities are far more important to the country than policing the moral behaviour of Muslims and punishing them like criminals. The personal sins of Muslims do not hurt others in the society or the economy but the corruption and financial mismanagement among politicians and civil servants and the perception that the institutions of justice favour those in power — these are the social diseases that can cause economies to collapse and the people to rise up against their rulers. The government and MPs should be careful not to support the PAS bill and instead spend their energy in dealing with the unresolved problems surrounding 1MDB so that the country can turn its attention to deal with the bigger issues facing the economy, in particular the weak ringgit and the rising cost of living.
We do not need the PAS bill to divide the nation at a time when all races should stand together. The time now is for the real 1Malaysia.
Contrary to what was claimed by G25, the amendment of Act 355 will not only lead to good governance but it will help to build a better society and reduce social problems among the Muslims. Talking about economy, the increase of punishments for drinking and gambling can hinder Muslims from wasting their money on those negative activities, hence will improve the economy of their families. And faithful Muslims will not be involved in “corruption and financial mismanagement”, hence will prevent “the social diseases that can cause economies to collapse and the people to rise up against their rulers”. 





Does Teresa Kok Understand English?

13 03 2017

On March 11, 2017, the DAP Seputeh MP said on her Facebook page that, “This case tells us that Syariah laws will affect non-Muslims in the end…..” with a photo of a man being caned in Aceh.

I wonder if Teresa Kok read the News Asiaone report before making her posting because  News Asiaon reported that the two men chose to be punished under the Syariah laws instead of Indonesian national legal system.

If Teresa Kok understands English, she’ll know that the Buddhists themselves chose to be caned instead of jailed.

Maybe Teresa Kok is trying to relate the news to the amendment of Act 355 in order to scare the non-Muslims that in the end, it will affect them as well.

If so, it is another dirty tactic to spew hatred towards the Muslims who are fighting for the Act 355 to be amended because:

  1. The amendment of Act 355 will not broaden the jurisdiction of the Syariah Court beyond its current limit but it will only increase its punishment limits to the Muslims who are under the jurisdiction of the court.
  2. To allow the Syariah laws to be applied to the non-Muslims, the Federal Constitution must be amended where the Item 1 List II Ninth Schedule of the Federal Constitution of Malaysia must first be amended.
  3. We do not subscribe to the laws of Indonesia. That happened in Aceh, Indonesia where Syariah law is applied to everyone but we are living in Malaysia, where the Syariah law only applies to the Muslims.
  4. The two Buddhists chose to be punished under the Syariah law instead of the secular law; why must that bothers Teresa Kok?

It is easy for leaders like Teresa Kok to spread lies to her supporters because:

  1. They trust their leaders and are too blinded to see the truth.
  2. Like Teresa Kok, they only read the titles and do not bother to find out what really happens.
  3. They do not understand the Bahasa Melayu and English.
  4. They do not understand the Federal Constitution of Malaysia.




SUARAM Man Questions “Belief in God”

8 03 2017

Director of Suara Rakyat Malaysia (SUARAM), Kua Kia Soong wrote an article, “Keep the Constitution secular and inclusive” which was published on SUARAM’s website on February 20, 2017, in which he stated his view on the move to make Rukun Negara as the preamble to our Federal Constitution of Malaysia.

What really caught my attention was the fact that the SUARAM leader:

  • claims the Federal Constitution as secular and,
  • disagree with the first principal of the Rukun Negara which is, “Belief in God”.

The arguments in the press statement are totally out of context as Kua Kia Soong fails to understand both the Federal Constitution and the definition of the word, “secularism”.

The fact is, it is just impossible for the Federal Constitution to be secular when Article 3(1) of the Federal Constitution says that Islam is the religion of the Federation.

Of course, I too do not agree with the idea of making the Rukun Negara as the preamble to our Federal Constitution, but not because I do not agree with any of its five principals; instead my reasons are:

  1. The Rukun Negara it is not a law, therefore having the Rukun Negara as a preamble will undermine the supreme law of the Federation.
  2. Adding a preamble will not help the people to understand the Federal Constitution better.
  3. Having the Rukun Negara as a preamble will increase the probability of misinterpretation of the Federal Constitution.
  4. I cannot see any reason why we need a preamble to the supreme law of our Nation.

Below are my answers (in blue) to Kua Kia Soong’s article in red:

There is an attempt by some “eminent persons” to install the Rukunegara as the preamble to the Malaysian Constitution. If there is indeed a need for such a preamble, it ought to reaffirm the principles of secularism and inclusiveness in the Constitution.

There are no “principles of secularism” in the Federal Constitution of Malaysia. The third Article of the Federal Constitution states that Islam is the Religion of the Federation and that itself denies any allegation that our Federal Constitution is secular. Furthermore, neither can we find any Article in the Federal Constitution that says the Constitution is secular nor can we find the word, “secular” in the Constitution.

In my humble opinion, any attempt to have a preamble to our Constitution needs first to be discussed by all the communities in the country including the Orang Asli, debated and passed through Parliament; secondly, it has to be inclusive.

This “national philosophy” of Rukunegara was proclaimed on Merdeka Day, 1970 as a response to the racial riots of May 13, 1969, when the country was still under a state of Emergency.

Rukun Negara is drafted as a national ideology to bond Malaysians of all races in order to establish peace among the races and to prevent future racial tension in order to avoid racial riots like the May 13 tragedy.

Like the National Culture Policy, it was drafted by selected “eminent persons” rather than involving representation from all Malaysian communities and it did not go through a democratic process of debate, nor was it passed by the Federal Parliament.

The Rukun Negara “did not go through a democratic process of debate, nor was it passed by the Federal Parliament” because it is not a law and was not meant to be a law, therefore, it does not have to go through that process.

While most of its aspirations are noble and acceptable, namely, “achieving a more perfect unity…; preserving a democratic way of life; creating a just society…; guaranteeing a liberal approach towards her rich and varied cultural traditions; and building a progressive society…”; nevertheless, its principle of “Belief in God” is not inclusive of all Malaysian faiths.

There is nothing wrong with the first Principle of the Rukun Negara. “Belief in God” is chosen as the first Principle of Rukun Negara because:

The People and Nation were established based on our strong faith in God. It is indeed in the name of God that the People and Nation were established as a sovereign People and Nation. – Department Of National Unity And Integration (Prime Minister Department)

“Belief in God” is not against the Federal Constitution. Every religion has its god, even those who practice animism worship certain ‘figure of god’. In the case of atheism, there is no constitutional provision that recognises atheism or other liberal ideologies because our Nation is not established based on liberalism.

Any preamble should include all peoples and stress social justice and democracy

In the first place, there is no need for a preamble. Secondly, it is the peoples who must respect the laws and the ideologies of their countries and not the other way around.

The preamble to the US Constitution, for example is short and concise, stressing that their nation is defined and formed by its people and what it stands for:

“We the People … in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution…”

Although peopled largely by Christians, the preamble to the US Constitution makes no reference to a God or monarch. Apart from serving as an executive summary, it merely sets the stage for how the new government defined by the Constitution will establish justice and secure the blessings of Liberty. Thus, their preamble is absolutely secular and the first three words are perhaps the most important: “We the People…”

It is clear that Kua Kia Soong does not understand the basic principles of our Nation. It is illogical for him to expect our Federal Constitution to follow the Constitution of the United States that “makes no reference to a God or monarch” because: 

  1. The United States is a secular country while Malaysia is an Islamic country.
  2. The United States is a republic while Malaysia has nine sovereign Sultans.

The SUARAM leader wrote, “Although peopled largely by Christians, the US Constitution makes no reference to a God”. The US, as a secular country it is unconstitutional for the US Constitution to make any reference to any God. So, even if all of the United States’ citizens are Christians, it is still unconstitutional for its Constitution to make any “reference to a God”. And it is crazy for the US Constitution to make any reference to a monarch because the country does not have a monarch.

Perhaps India is a better comparison since it was a former colony like ours. The preamble to the Constitution of India actually makes its secularism explicit:

Again, Kua Kia Soong’s facts are wrong because Malaysia is not a former colony like India. According to Profesor Emeritus Tan Sri Dr. Khoo Kay Kim, British has never conquered the Malay States or the Tanah Melayu except for Pulau Pinang, Melaka and Singapura. The rest of the Tanah Melayu are independent sovereign countries as proven by a few court cases such as Mighell v. the Sultan of Johore (1983) and Duff Development Co v Kelantan Government (1924).

If the Malay States were conquered by British, then our nine sovereign Sultans will lose their sovereignty like what happened in India. The British attempted to conquer the Malay States through multiple ways but failed. (Please read: Kebenaran Di Sebalik Sejarah Penubuhan Persekutuan Malaysia“)

“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation…”

Thus the main purposes of having a preamble to the Indian Constitution are again, first, to refer to the source that is responsible for the authority of the Constitution (We, the People…), and to spell out the objectives of the Indian Constitution, namely, Equality, Justice, Fraternity and Liberty. Like the US constitution, there is no insistence on “Belief in God”.

Another out of context argument by the SUARAM leader. Again, unlike both India and the United States, Malaysia is neither a secular state nor a republic. 

The importance of being secular

Malaysia is not a secular state.

So what is the significance of including “Belief in (the monotheistic) God” in the hypothetical preamble to our Constitution?

The Federal Constitution does not need a preamble, so there is no “significance of including “Belief in (the monotheistic) God” in the hypothetical preamble to our Constitution”. 

Since the prevalence of Islamic populism in the Eighties, there has been attempts by politicians including one or two Prime Ministers to claim that Malaysia is an Islamic state. Nonetheless, this attempt has been rightfully frustrated by among others, Bapa Malaysia and the judiciary in the country.

Those are common statements made by people who either do not understand the Federal Constitution or purposely trying to misinterpret the supreme law. One must learn to accept facts and not to live in denial, or worst, trying to mislead the people with false facts. The supreme law of the country is the Federal Constitution, so any statement or any attempt by any politician or by any activist like Kua Kia Soong “which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”.

4. (1) This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void. – Article 4(1)

Article 3(1) of the Federal Constitution enshrines Islam as the Religion of the Federation hence making Malaysia an Islamic state no matter what were said by our former Prime Ministers. 

3. (1) Islam is the religion of the Federation, but other religions may be practised in peace and harmony in any part of the Federation. – Article 3(1) 

For example, on his 80th birthday on February 8, 1983, Tunku’s main message to the Barisan Nasional leaders was not to turn Malaysia into an Islamic State, stressing that Malaysia was set up as a secular State with Islam as the official religion and that this was enshrined in the Constitution. This was echoed a few days later by the third Malaysian Prime Minister, Tun Hussein Onn on his 61st birthday on February 12, 1983.

The Barisan Nasional leaders do not have to turn Malaysia into an Islamic state because from the very beginning Malaysia is already an Islamic state. It is the Supreme law of the land, which is the Federal Constitution that enshrines Islam as the Religion of the Federation, making Malaysia an Islamic Nation. 

Statements made by both Tunku and Tun Hussein Onn are not above the Supreme law of the land and cannot change the words written in the Federal Constitution. 

The Alliance Memorandum submitted to the Reid Constitution Commission on Sept 27, 1956, clearly stated that “the religion of Malaya shall be Islam … and shall not imply that the state is not a secular state.” Thus, both the Reid Commission in 1957 and the Cobbold Commission in 1962 characterised Malaysia as a “secular state”.

The Reid Commission was only given the responsibilities to draft the Federal Constitution but it is the Malay Royal Rulers who had the final say on the matter and gave the endorsements for the Articles chosen. Both the Reid Commission and the Cobbold Commission are not law makers of our country hence their words and intentions are not laws. Their intentions cannot change the words written in the Supreme law of our Nation.

In the Court of Appeal’s judgement of the case, Titular Roman Catholic Archbishop of Kuala Lumpur v. Menteri Dalam Negeri and Kerajaan Malaysia, the then Federal Court Judge, Tan Sri Mohamed Apandi Ali stated:

[31] It is my observation that the words “in peace and harmony” in Article 3(1) has a historical background and dimension, to the effect that those words are not without significance. The Article places the religion of Islam at par with the other basic structures of the Constitution, as it is the 3 rd in the order of precedence of the Articles that were within the confines of Part I of the Constitution. It is pertinent to note that the fundamental liberties Articles were grouped together subsequently under Part II of the Constitution.

Most importantly, former Lord President of the Malaysian Judiciary, Tun Mohamed Salleh Abas in Che Omar bin Che Soh v Public Prosecutor (1988), stated that the term “Islam” in Article 3(1) of the Federal Constitution meant “only such acts as relate to rituals and ceremonies… the law in this country is … secular law.” The previous Lord President Tun Mohamed Suffian Hashim similarly wrote that Islam was made the official religion primarily for ceremonial purposes, to enable prayers to be offered in the Islamic way on official public occasions, such as the installation or birthday of the Yang di-Pertuan Agong, Independence Day and similar occasions.

Che Omar Che Soh v Public Prosecutor (1988) 2 MLJ 55 is an old case which is no longer a good law. Furthermore, in the judgement of the case, Tan Sri Salleh Abbas has never said that Malaysia is a secular nation but Tan Sri Salleh Abbas only said that secular laws were used in Malaysia. 

We must look at the judgements of other more important and prominent later court judgements including the Court of Appeal case of Meor Atiqulrahman bin Ishak & Ors v Fatimah Binti Sihi & Ors, High Court case of Lina Joy v Majlis Agama Islam Wilayah Persekutuan, Federal and Court of Appeal case of Titular Roman Catholic Archbishop of Kuala Lumpur v Kementerian Dalam Negeri & Kerajaan Malaysia, and a lot more.

Against the background of confounding populist politicians, one would think that it is even more crucial – if there is a need for a preamble to our Constitution – for such a preamble to reaffirm the secular and inclusive character of our Constitution.

If there is a real need for a preamble to our Constitution, the preamble must reaffirm the Islamic character of our Constitution.

In a secular state, the state is officially neutral in matters of religion, supporting neither religion nor atheism. It treats all its citizens equally regardless of religion. Secularism is not merely desirable but essential for the healthy existence of a pluralist society such as ours. It implies a separation that exists between the State and religion. This does not detract from the fact that the right to religion is a fundamental right and the denial of this freedom is a violation of the basic principles of democracy.

This proves that Malaysia is not a secular state. The Article 3(1) of the Federal Constitution states, “Islam is the Religion of the Federation”,  so it is impossible to classify Malaysia as a secular state. 

Monotheism is not the only religion in this world

Monotheism is not a religion.

Secularism is also important in regulating the relation between the State and various religious groups on the principle of equality. When the Rukunegara espouses only “Belief in (Monotheistic) God”, it forgets that there are Malaysians of other faiths based on polytheism or animism and ancestor worship.

Malaysia is not a secular state because it has a religion, which is Islam. In fact, it is unconstitutional to regulate “the relation between the State and various religious groups on the principle of equality” because as the Religion of the State, Islam is not equal to other religions. In the High Court decision of the case, Meor Atiqulrahman bin Ishak & Ors v Fatimah Sihi & Ors[2000]  1 MLJ 393, the then Justice Mohd Noor Abdullah had clearly clarified this matter:

In my opinion, “Islam is the religion of the Federation but other religions may be practied in peace and harmony” means that Islam is the main religion among other religions that are practied in the country such as Christians, Buddhists, Hindus and others. Islam is not equal to any other religion, not sitting together or stand upright. It sits on top, he walked past, located in the field and his voice heard. Islam is like teak trees – tall, strong and skilled. If not so Islam is not the religion of the Federation but is one among several religions practised in the country and everyone is equally free to practice any religion he professes, no more one than the other. Provisions ‘Islam is the religion of the Federation’ shall be defined and reviewed with the objective to read other provisions of the Constitution, especially Article 89, 152, 153 and 14.

I am truly surprised that our “eminent persons” cannot see that such an imposition of “Belief in God” does not include polytheists, animists and ancestor worshippers. Their attempt to argue that, despite their inclusion of “Belief in God” in the hypothetical preamble, other faiths of minorities are in fact protected by the Malaysian Constitution, unwittingly demonstrates the secularism and inclusiveness of our Constitution.

Now, if the Constitution already guarantees the equal rights of Malaysians of all faiths – monotheistic, polytheistic, atheistic, animistic as well as ancestor worshippers – is it not presumptuous if not sacrilegious to try to impose “Belief in God” on ALL Malaysians?

There is no other religion that was mentioned in the Federal Constitution other than Islam which shows the status of Islam as the Religion of the land. The fact that Malaysia respects minority religions despite being an Islamic state proves the beauty of Islam that respects other religions.

It is a pity that not only there are people who cannot understand and appreciate this fact but they are trying hard to change the history, erase the Social Contract and challenge the Supreme law of the land by claiming that Malaysia is a secular country. As the one and only religion of the Federation, Islam must be respected by people of all faith.

Even though people of other religions can practise their religions as long as it is in peace and harmony towards Islam, but there is no provision in the Federal Constitution to protect other religions other than Islam, for example, the Article 11(4). The interpretation of the term, “in peace and harmony” in the Article 3(1) was clearly made by the then Federal Court Judge, Tan Sri Apandi Ali in the Court of Appeal case of Titular Roman Catholic Archbishop of Kuala Lumpur v Kementerian Dalam Negeri & Kerajaan Malaysia:

[33] In short, Article 3(1) was a by-product of the social contract entered into by our founding fathers who collectively produced the Federal Constitution, which is recognized as the Supreme Law of the country. It is my judgment that the purpose and intention of the insertion of the words: “in peace and harmony” in Article 3(1) is to protect the sanctity of Islam as the religion of the country and also to insulate against any threat faced or any possible and probable threat to the religion of Islam. It is also my judgment that the most possible and probable threat to Islam, in the context of this country, is the propagation of other religion to the followers of Islam. That is the very reason as to why Article 11(4) of the Federal Constitution came into place.

[42] It is my judgment that, based on the facts and circumstances of the case, the usage of the word “Allah” particularly in the Malay version of the Herald, is without doubt, do have the potential to disrupt the even tempo of the life of the Malaysian community. Such publication will surely have an adverse effect upon the sanctity as envisaged under Article 3(1) and the right for other religions to be practiced in peace and harmony in any part of the Federation. Any such disruption of the even tempo is contrary to the hope and desire of peaceful and harmonious co-existence of other religions other than Islam in this country.

To conclude, the concept of secularism is derived from the principle of democracy and secularism becomes meaningful only when it refers to democratic equality and includes diverse peoples of all faiths, beliefs and practices.

To conclude, neither the words “democracy” nor “secular” are ever mentioned in the Federal Constitution. Malaysia is an Islamic state with the DYMM Yang di-Pertuan Agong as the head of state and the Prime Minister as the head of the government which is democratically elected by the people through General Elections.





Zairil Dakwa Tun M Mencadangkan Pindaan Semberono?

2 03 2017

Saya tidak terkejut apabila ahli Parlimen DAP Bukit Bendera, Zairil yang walaupun mengaku beragama Islam tetapi menentang taraf, kedudukan dan bidang kuasa Mahkamah Syariah di Malaysia seperti yang telah termaktub di dalam Perlembagaan Persekutuan.

Di dalam artikel yang bertajuk, “Kembalikan kuasa Mahkamah Persekutuan sebagai pemutus muktamad isu undang-undang”, yang telah disiarkan oleh RoketKini.com, Zairil mempertikaikan Perkara 121(1A) Perlembagaan Persekutuan Malaysia yang menghalang Mahkamah Tinggi untuk membatalkan keputusan Mahkamah Syariah.

>>>Tekan sini untuk baca artikel tersebut<<<

Tidak setakat itu, ahli Parlimen DAP itu juga mencadangkan agar bidang kuasa yang telah diperuntukkan kepada Mahkamah Syariah untuk menghakimi “hal-hal yang melibatkan hak dan kebebasan asasi, termasuk dalam kes-kes yang melibatkan Perkara 121(1A) di mana Mahkamah Tinggi tidak mempunyai bidang kuasa” itu dirampas atau ditarik balik.

Lebih parah lagi, dengan memberi gambaran bahawa Perkara 121(1A) itu seolah-olah tidak adil dan satu “dilema sistem kehakiman”, pemimpin DAP itu mencadangkan satu jalan pintas diambil untuk merampas bidang kuasa Mahkamah Syariah melalui jalan belakang, seperti kenyataannya, “Malah, ini boleh dibuat dengan mudah tanpa pindaan Perlembagaan atau apa-apa perubahan kepada Perkara 121”.

Bukankah cadangan Zairil itu bermakna menarik balik bidang kuasa Mahkamah Syariah secara ‘bypass’ Perlembagaan Persekutuan?

Kenyataan Zairil:

Oleh itu, saya ingin mencadangkan agar Mahkamah Persekutuan dikembalikan tarafnya sebagai pemutus muktamad dalam segala isu undang-undang, yakni sebagai Mahkamah Perlembagaan. Malah, ini boleh dibuat dengan mudah tanpa pindaan Perlembagaan atau apa-apa perubahan kepada Perkara 121.

Penyelesaian kepada masalah ini boleh dicapai melalui pindaan kepada Akta Mahkamah Kehakiman dalam dua perkara. Pertamanya, pendefinisian bidang kuasa Mahkamah Persekutuan harus menyatakan dengan jelas bahawa Mahkamah Persekutuan tidak dihadkan kepada bidang kuasa yang sama dengan Mahkamah Tinggi.

Kedua, satu prosedur harus diperkenalkan bagi membenarkan pengemukaan petisyen secara langsung kepada Mahkamah Persekutuan dalam hal-hal yang melibatkan hak dan kebebasan asasi, termasuk dalam kes-kes yang melibatkan Perkara 121(1A) di mana Mahkamah Tinggi tidak mempunyai bidang kuasa. 

~Zairil (DAP)

Kalau dahulu Lim Guan Eng dengan celuparnya membuat fitnah dan hasutan jahat menuduh UMNO sanggup bekerjasama dengan PAS untuk “bypass the Federal Constitution to allow these laws to take effect” dalam hal Akta 355, kini terbukti siapa sebenarnya yang berniat jahat untuk “bypass the Federal Constitution” untuk mencapai hasrat mereka.

“MCA, MIC, Gerakan and SUPP deserve public condemnation for betraying their principles and promises to uphold and defend the Federal Constitution but also for their political expediency to continue to deceive the people by supporting UMNO that is willing to work together with PAS to bypass the Federal Constitution to allow these laws to take effect.”

~Lim Guan Eng

Lebih teruk lagi, Zairil juga telah memberi sebab yang tidak masuk akal dalam mempertikaikan Perkara 121(1A):

Jika kita kembali kepada Perlembagaan, Perkara 75 menyatakan bahawa undang-undang Persekutuan mengatasi undang-undang Negeri, manakala Perkara 4 menyatakan Perlembagaan Persekutuan mengatasi semua undang-undang lain. Hal ini jelas dan tidak dipertikaikan.

~Zairil (DAP)

Walaupun undang-undang Syariah itu dibawah negeri, namun sistem Mahkamah Syariah adalah sebahagian daripada sistem perundangan Persekutuan; kerana kedudukan Mahkamah Syariah telah diperuntukkan oleh Perlembagaan Persekutuan melalui Perkara 121(1A).

Selain daripada Zairil, Lim Kit Siang juga mempertikaikan Perkara 121(1A).

Menariknya pada masa yang sama, rakan sekumpulan mereka iaitu PKR menyangkal tuduhan DAP dan mengiktiraf Perkara 121(1A) sebagai penting dan baik sehingga mendakwa pemimpin mereka, Datuk Seri Anwar Ibrahimlah yang memainkan peranan utama dalam usaha untuk menambah Fasal 1A kepada Perkara 121.

At the Federal level, upon the initiatives of the late Tan Sri Prof. Ahmad Ibrahim and Datuk Seri Anwar Ibrahim, Article 121 (1A) was introduced to the Federal Constitution. The introduction upgraded the legal position of the Syariah Courts without infringing the civil on the court rights of non-Muslims. It must be stress that this initiative was discussed by the Islamic Consultation Body, the Islamic Centre (now JAKIM), and the Cabinet.

~Strengthening Islamic Jurisprudence in Malaysia – Page 20

Malah, bukan setakat itu sahaja, tetapi jika mereka membaca Hansard Parliamen, mereka akan mendapati bahawa rakan baik terkini parti DAP, Tun Dr. Mahathirlah yang merupakan orang yang mencadangkan penambahan Fasal 1(A) kepada Perkara 121 di Parlimen pada tahun 1988.

Jadi, apakah Zairil menuduh Dr. M seorang yang tidak cermat dan tidak berfikiran panjang sehingga mencadangkan satu “pindaan semberono” yang “telah meninggalkan warisan yang buruk kepada negara kita”?

Pindaan semberono yang dibuat pada tahun 1988 telah meninggalkan warisan yang buruk kepada negara kita dan mencetuskan krisis Perlembagaan dan penafian hak dan kebebasan asasi rakyat seperti yang berlaku dlm kes-kes S. Deepa dan Indira Gandhi.

~Zairil (DAP)

Apakah pindaan Perkara 121(1A) yang dituduh satu “pindaan semberono” oleh Zairil akan benar-benar menjadi satu “dilema” kepada DAP, PKR dan PPBM?

Maka persoalannya ialah:

  1. Apakah pendirian bersama parti DAP, PKR dan PPBM mengenai Perkara 121(1A)?
  2. Siapakah yang akan beralah dalam soal ini atau adakah PKR dan PPBM hanya bermain politik dan akhirnya akan akur akan semua kehendak DAP?
  3. Sanggupkah PKR dan Tun Dr. Mahathir bersekongkol dengan DAP untuk menarik balik bidang kuasa Mahkamah Syariah?
  4. Di manakah suara pemimpin Islam mereka yang pernah berkata mahu memperkasakan Mahkamah Syariah?
  5. Apakah inilah yang mereka maksudkan sebagai pemerkasaan Mahkamah Syariah versi mereka?

 





Mengarutnya Tun Mahathir… (Video)

22 02 2017

Dalam satu sidang media selepas sambutan Tahun Baru Cina oleh PKR Bandar Tun Razak di Flat Seri Johor di Cheras, pengerusi Parti Pribumi Bersatu Malaysia (PPBM), Tun Dr. Mahathir Mohamed membuat berberapa tuduhan yang amat mengarut tentang pindaan Akta 355.

Dalam sebuah video oleh KiniTV, Tun M sekali lagi membuat beberapa tuduhan liar seperti Himpunan 355 bermotifkan politik dan juga pindaan yang dicadangkan ini akan membolehkan perlaksanaan hukuman potong tangan dan lebih pelik lagi, penyembelihan orang.

“Tetapi nampak dia orang ni yang seronok sangat nak potong tangan orang, nak sembelih orang…”

~Tun Dr. Mahathir Mohamed

Persolannya, adakah Tun M tidak faham tentang pindaan Akta 355 atau Tun sengaja mahu mengelirukan orang ramai dengan tuduhan yang tidak masuk akal seperti menyembelih orang?

Memang pelik bila Tun M seperti tidak faham tentang Akta 355, kerana hakikatnya, Akta ini telah dipinda dua kali semasa zaman Tun menjadi Perdana Menteri.

Malah Tun M sendiri telah menyokong usul pindaan Akta 355 pada tahun 1984 bertujuan untuk menaikkan had hukuman bagi Mahkamah Syariah pada ketka itu.

Seperti pindaan Akta 355 pada tahun 1984, pindaan yang dicadangkan ini juga hanyalah untuk menaikkan had hukuman kesalahan di bawah bidang kuasa Mahkamah Syariah dan bukannya menentukan hukuman kerana ini adalah di bawah bidang kuasa kerajaan negeri.

Malangnya, kini Tun sudah senada dengan kumpulan SIS Forum Berhad yang gagal memahami perkara yang mudah ini.

Hukuman berat atau ‘capital punishment’ seperti potong tangan tidak termasuk di bawah bidang kuasa Mahkamah Syariah, apatah lagi hukuman bunuh.

Tambahan, di bawah hukum Islam, pesalah tidak boleh dibunuh secara kejam seperti dengan cara sembelih apabila dihukum mati, dan Tun M sudah salah di situ.

Tun M juga nampaknya tidak faham akan cara perlaksanaan sebatan Syariah apabila menuduh bahawa perlaksanaan seratus sebatan akan membunuh pesalah.

“Ini nak sebat orang sampai seratus kali, mati kalau sebat seratus kali.”

~Tun Dr. Mahathir Mohamed

Sebatan Syariah amat ringan berbanding sebatan sivil, dan sebatan akan dijalankan di bawah pengawasan doktor perubatan yang mengawasi keadaan pesalah semasa disebat dan sebatan akan ditangguhkan jika kesihatan pesalah tidak mengizinkan.

Kata Tun, “Melayu mudah lupa” tapi nampaknya Tun yang sudah lupa atau buat-buat lupa.

Related articles:

  1. Surat Balas Tun M Tidak Menjawab Persoalan
  2. Perjanjian DAP, PKR, PAN, PPBM Untuk Meminda Perkara 3(1)?
  3. Tun Dr Mahathir, From A Statesman To A Street Demonstrator
  4. Tun Dr. Mahathir, “Kalau Marahkan Nyamuk Jangan Bakar Kelambu”
  5. Tun M Has Gone Too Far
  6. Is Tun M’s Rights Above The Rights Of Agong
  7. Tun M, Janganlah Menghina Nabi S.A.W.
  8. Tun M: “Perdana Menteri Buat Demonstration” (Video)
  9. Tun M: Jangan Menang Sorak, Kampung Tergadai
  10. Tun M and TMI vs Bukit Aman
  11. Video: Tun M Sings “Imagine”, Is He Okay?








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