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”. 





PKR Claims Anwar Introduced Article 121 (1A)

20 02 2017

In order to play safe and avoid losing Malay votes by saying “no” to PAS President’s Private Bill, PKR publishes a book named, “Strengthening Islamic Jurisprudence in Malaysia”, where apart from recycling irrelevant and out of context questions that were answered a long time ago, the party issued a very confusing statement regarding the Bill in order not to directly says that the party is against the Bill.

Please read:

  1. “Jawapan Kepada Kenyataan Mengelirukan Khalid Samad Tentang Pindaan Akta 355”
  2. “Akta 355: Poster Dangkal SIS Forum Tentang Akta 355
  3. Another Seditious Article by MMO’s Boo Su-Lyn

Worst, PKR tries to take the credit for the Federal Government’s effort in 1988 to upgrade the Syariah Courts by claiming that the move was “upon the initiatives of Almarhum Tan Sri Prof. Ahmad Ibrahim and Datuk Seri Anwar Ibrahim”.

Written on page 20 of the book:

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

It is a known fact that Almarhum Tan Sri Professor Ahmad Mohamed Ibrahim Ahmad is the person who initiated the move but since I have not come across on Anwar’s specific role in fighting for the Article 121 1(A) together with Almarhum Professor Ahmad Ibrahim, I spoke to several senior lawyers and Constitution experts to clarify the claim made by PKR in the said book.

Contrary to what was claimed in the PKR book, the answers from the senior lawyers are that Anwar Ibrahim has nothing to do with the move to add the Article 121 (1A) to our Federal Constitution, neither in coming out with the idea nor the fight in pursuing the matter until it was accepted by the Federal Government.

I was told by the lawyers that it was the initiative of Almarhum Tan Sri Professor Ahmad Mohamed Ibrahim with the help from the then Chief Justice Tun Hamid Omar and the then Attorney General that made it possible to bring the matter to Parliament and that it has nothing to do either with Anwar Ibrahim or PKR.

Furthermore, after studying the Parliament Hansard, I found out that on March 17, 1988, it was not Anwar Ibrahim who tabled the Constitution (Amendment) 1988 Bill regarding Article 121 (1A) in the Parliament but it was the then Prime Minister, Dato’ Sri Dr. Mahathir Mohamed who tabled the Bill.

Below is a part of the Parliament Hansard on the Constitution (Amendment) 1988 Bill:

Penyampai : DATO’ SERI DR. MAHATHIR BIN MOHAMAD
Tajuk : MEMBENTANGKAN RANG UNDANG-UNDANG PERLEMBAGAAN (PINDAAN) 1988
Lokasi : DEWAN RAKYAT, KUALA LUMPUR
Tarikh : 17-03-1988

Tuan Yang di-Pertua,
Saya mohon mencadangkan iaitu Rang Undang-Undang bernama suatu Akta untuk meminda Perlembagaan Persekutuan dibacakan kali yang kedua sekarang….

…23. Perkara 118A menyatakan bahawa sesuatu aduan tentang tidak adanya dibuat pemilihan ke Dewan Rakyat hendaklah dianggap sebagai petisyen pilihanraya, dan Mahkamah Tinggi boleh membuat perintah untuk memaksa supaya pemilihan dibuat. Perkara itu juga menyatakan bahawa kegagalan membuat pemilihan dalam tempoh yang dinyatakan oleh Perkara 54 dan 55 tidak boleh dijadikan alasan untuk mengisytiharkan bahawa seseorang ahli itu telah tidak dipilih sewajarnya. Fasal 7 Rang Undang-Undang ini mencadangkan supaya Perkara 118A itu dipinda supaya ianya terpakai juga bagi pemilihan ke Dewan Undangan Negeri. PERKARA 121 ___________

24. Perkara 121 meletakhak kuasa kehakiman Persekutuan pada Mahkamah Tinggi dan mahkamah-mahkamah rendah. Ia juga meletakhak bidangkuasa tertentu pada Mahkamah Agung.

25. Fasal 8 Rang Undang-Undang ini mencadangkan supaya Perkara 121 dipinda dengan menghapuskan peruntukan tentang meletakhak kuasa-kuasa kehakiman pada mahkamah-mahkamah dan dengan memasukkan ke dalam Fasal (1) Perkara itu peruntukan yang menyatakan bahawa Mahkamah Tinggi dan mahkamah-mahkamah rendah hendaklah mempunyai bidangkuasa dan kuasa-kuasa sebagaimana yang diberi oleh atau di bawah undang-undang persekutuan. Dengan ini, Perkara itu tidak lagi akan memberi penekanan pada meletakhak kuasa kehakiman persekutuan pada mahkamah-mahkamah tetapi akan hanya memperkatakan tentang jenis-jenis mahkamah dan bidangkuasa serta kuasa-kuasanya.

~Office of the Prime Minister

Therefore, I have a few questions for PKR :

  1. What is the important role played by Anwar Ibrahim to justify his big role in Article 121 (1A) as claimed by PKR that, “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”?
  2. Since the Clause (1A) was added to the Article 121 in 1988, on what basis can PKR take the credit by using Anwar’s name when;
    ——–i. PKR was then not yet existed.
    ——–ii. And Anwar Ibrahim who was then a leader of UMNO acted in the capacity
    ———–of an UMNO leader and in accordance with the principals of UMNO and by
    ———–the consent of  UMNO leadership?
  3. Are these concocted fictional claims are parts of PKR’s values and interpretation of the phrase “justice, humanity and based on the Islamic values of “rahmatan lil ‘alamin” (a mercy unto the world)” that was said in the book as what PKR is “committed in the struggle for”?

>>>Click here to read Strengthening Islamic Jurisprudence in Malaysia<<<

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