A Hidden Treasure Of The Federal Constitution

3 11 2015

Studying the case of ZI Publications Sdn Bhd and Another v Kerajaan Negeri Selangor, I came across an Article of the Federal Constitution of Malaysia that attracts my attention.

The Article is Article 76, which explains about “the power of Parliament to legislate for states in certain cases”.

Clause 2 of Article 76 or Article 76(2) says:

(2) No law shall be made in pursuance of paragraph (a) of Clause (1) with respect to any matters of Islamic law or the custom of the Malays or to any matters of native law or custom in the States of Sabah and Sarawak and no Bill for a law under that paragraph shall be introduced into either House of Parliament until the Government of any State concerned has been consulted.

Paragraph (a) of Clause (1),

Parliament may make laws with respect to any matter enumerated in the State List, but only as follows, that is to say— for the purpose of implementing any treaty, agreement or convention between the Federation and any other country, or any decision of an international organization of which the Federation is a member

This Article is interesting because it says that in matters related to the “Islamic law or the custom of the Malays or to any matters of native law or custom in the States of Sabah and Sarawak”, no laws shall be introduced into either House of Parliament until the Government of any State concerned has been consulted.

Hence, I think that the Yang di-Pertuan Agong and the Sultans as the heads of states, have the rights to give the final says in the making of laws regarding these important matters and not the parliament.

This Article is precisely harmonious with Article 3 that says the Rulers are the Head of the religion of Islam in their respective states and Yang di-Pertuan Agong as the Head of the religion of Islam in that states without Sultan, and Article 153 where the Yang di-Pertuan Agong “shall exercise his functions under this Constitution and federal law in such manner as may be necessary  to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak”.

The human rights activists are lobbying the United Nations Human Rights Council (UNHRC) to force the government of Malaysia to sign and to fully ratify some treaties and conventions that are against the teaching of Islam, the State laws, the Federal Constitution and the National Principals of Malaysia such as Article 18 of ICCPR, Article 14 of CRC, SOGI, and ICERD.

Can the parliament enact new laws to nullify the State laws regarding the matter?

I think it is the States and not the parliament that have the power to enact new laws in order to ratify the conventions because the enforcement of Islamic law on Muslim citizens is decided independently by each state.

The judgments by the Federal Court in the case of ZI Publications Sdn Bhd and Another v Kerajaan Negeri Selangor and the case of Negeri Sembilan’s transgenders supported these facts.

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Malaysia And UNHRC Declaration

8 10 2013

Each country is unique, and there is no two countries that are totally the same. As a sovereign country has its own law and constitution, nobody can force a sovereign country to follow the universal rules made by other countries especially when the rules are against the values and the needs of its citizens. The same is with Malaysia.

Malaysia has it’s own Federal Constitution, laws and Rukun Negara (National Principles) that ensures the harmony of its citizens. So, Malaysia does not need to follow all of the UNHR declarations. Why? Because some of the declarations are against the Malaysian Federal Constitution, laws and Rukun Negara. And if Malaysia accept all UNHRC declarations, we must accept total Freedom of Religion, total Freedom of Expression, LGBTIQ and others that are not only against our Federal Constitution but also illegal by Malaysian law.

As I wrote before, Article 3(1) of the Malaysian Federal Constitution wrote that “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation”. That means, Malaysia is an Islamic country. So, Malaysia cannot accept any part of the UNHRC declaration that is against the Islamic teachings, for example SOGI or LGBTIQ rights. 

LGBT way of life is against the Malaysian law as well as against the Syariah law and the Federal Constitution of Malaysia. To declare the LGBTIQ rights means committing a huge crime, a violation of human rights of others and undemocratic because it gives the rights to people to commit crime and against the rights of the majority.

ICERD is also against the Federal Constitution as Article 153 of the Federal Constitution gives special rights and position of the Malays and the Bumiputras (indigenous people of the Sabah and Sarawak). Is Article 153 unfair? People need to study the history of Malaysia and not reading the reports from COMANGO to understand why Article 153 is fair.

Malaysians live peacefully and the government had been fair to the minorities, treat them well and not discriminating them. So Malaysia does not need to accept all of the UNHRC declarations because some are not suitable for Malaysia. What seems fair for the minorities may not be fair for the majorities. For the ones who support LGBTIQ and wants Malaysia to accept SOGI rights, can they understand that it is unfair and against the human rights of the majority to force others to follow them? When one wants to make it fair, he or she must look at the whole condition and situation and not being selfish and only wants things his or her way.

Is being a religious state unfair to others? Malaysia is not the only religious state in the world; Vatican City, Monaco, Argentina and lots of other countries are also religious state so why must Malaysia be forced to accept the idea of secularism?

Not all of the UNHRC declarations are suitable for every country because each country has different social values and ways of live. Human rights must not only means giving rights for total freedom; such as total freedom of expression and others to everybody but it must be about being fair to the whole community because humans do not live alone. For example, Muslims living in England cannot force the British government to ban the selling of alcohol for the reason that consuming alcohol is against the Islamic teaching.

UNHRC declarations should be about making people happy, protecting people and giving people a better quality of life. And human rights should not be about everybody can do things their way without thinking of others around them, the law and constitution of their countries and others.

UNHRC declaration must not be about making a country accept a universal rule that is against the law and constitution of the country that in the end, make most people miserable, unhappy, causing problems, havoc and instability in the country.





What Is Universal Periodic Review

2 10 2013

UNHRC-logo_withtext

The Universal Periodic Review (UPR) is a mechanism of the Human Rights Council (HRC) which is an intergovernmental body made up of 47 states, to review how far the members of the United Nations follow the Human Rights. (All About The Universal Periodic Review (UPR) by SUHAKAM)

The UPR reviews all 192 United Nations (UN) Member States over a four-year cycle. The process consists of several steps. The review takes place at the Palais des Nations in Geneva, Switzerland.

Objectives:

  1. Improvement of human rights of the people.
  2. How far does the state fulfil the obligations and commitments of human rights, assessment of positive development and problems that are faced by the States in fulfilling the obligations.
  3. Enhance the State’s capacity and technical assistance, in consultation with, and with the consent of, the State concerned.
  4. Sharing the best practice of human rights among States and other stakeholders.
  5. Support for cooperation in promotion and protecting of human rights.
  6. Encourage full cooperation and engagement with the HRC, the Office of the High Commissioner for Human Rights (OHCHR) and other human rights bodies.

Recommendations:

Recommendations are the final results of the UPR process, and are included in the final report. Although the recommendations are not binding, they act as a set of commitments by the State to improve the protection and promotion of human rights in their country. These recommendations will serve as benchmarks to the State, on what it must achieve until the next UPR cycle.





COMANGO And Human Rights

1 10 2013

During the briefing for Muslim UPRo (Muslim NGOs in the UPR process) at Dewan Tun Rahah Memorial Tun Abdul Razak in Kuala Lumpur, Uncle Azril briefed us about the Universal Periodic Review (UPR) and the United Nations Human Rights Council (UNHRC) declarations. The review process will be held at the United Nations in Geneva, Switzerland. 

United Nations

Malaysia is a peaceful country where the minorities races and religions are not been discriminated by our government. And Malaysia has its own Federal Constitutions, Rules of Laws, Social Contract and National Principles. This is very important to ensure the stability of our country since the people in our country is multi racial.

Anyway a loose coalition of NGOs called COMANGO (Coalition of Malaysian NGOs in the UPR process) made some false accusations regarding human rights in Malaysia. It also demands Malaysia to sign the UNHRC treaties that are against the Federal Constitution of Malaysia, our Rukun Negara (National Principles) and the laws of our country.

COMANGO claims that it represents the majority of Malaysian, but they are not. Actually COMANGO only represents a minority of Malaysian citizens. They claimed to represent 54 NGOs but only 12 of those NGOs are legal, meaning most of the NGOs that COMANGO represented are illegal as they are not registered under the ROS or SSM.

Some of COMANGO’s demands are:

  • Demands Malaysia to sign the International Covenant on Civil & Political Rights (ICCPR) which said,“The Committee observes that the freedom to “have or to adopt” a religion or belief necsesarily entails the freedom to choose a religion or belief, including the right to replace one’s current religion or belief with another or to adopt atheistic views, as well as the right to retain one’s religion or belief…”. ICCPR is against Article 3 (1) of the Federal Constitution of Malaysia that says, “Islam is the religion of the Federation” and Article 11 (4) that says that state laws and federal law may control or restrict the propagation of any religious doctrine or belief among Muslims and also against the first principle of  Rukun Negara (National Principles) that says, “Believe in God”.

  • Demands Malaysia to sign the International Covenant on the Elimination of All Forms of Racial Discrimination (ICERD). This is against Article 153 of the Federal Constitution that gives special rights and position of the Malays and the Bumiputras (indigenous people of the Sabah and Sarawak).

  • Demands Malaysia to agree on the SOGI Rights (Sexual Orientation & Gender Identity) which means they want Malaysia to legalised LGBTIQ (Lesbian Gay Bisexual Transgender Intersex Queer). This is against Article 3 (1) of the Federal Constitution and also the law of Malaysia.

  • Demands some enactments of the Syariah Law to be abolished. This is also against Article 3 (1) and against the second principle of the Rukun Negara that says, “Loyalty to the king and country,” because the king must protect Islam.

I do not agree on certain things that UNHRC declares as Human Rights because it is against my Rights as a Malaysian citizen according to the Federal Constitutions, Rukun Negara and the Rules of Laws of Malaysia. 

COMANGO does not respect the Federal Constitutions, Rukun Negara, Rules of Laws and the Social Contract of Malaysia. And COMANGO does not respect human rights because it claims that it represent the majority of Malaysian when it is not true. Cheating and making false accusations is a crime. Can we trust criminals to fight for other people’s Human Rights?

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United Nations Human Rights Council’s UPR

30 09 2013

UPR-logoUPR stands for Universal Periodic Review. It is a process to review how far all the countries that are members of the United Nations follow the demands made by the United Nations Human Rights Council (UNHRC).

This year, our country, Malaysia will be reviewed by UNHRC. I think Malaysia is a very peaceful and fair country where all minority races are not being discriminated by our government.

Must all the United Nations members agree to all of the UNHRC demands? I feel that not every country needs to be the same as other countries and follow the same universal rules because every country and its citizen is unique and has different needs and values.

For example, Malaysia is an Islamic country while Roman Catholicism is the official religion of Monaco and Argentina. So, they are all different and each country has different social values and ways of live.

So, is it fair if we want all the countries in this world to follow a set of universal rules and values agreed by other countries whose needs and values are different? I think that not only it is wrong, in fact, it is against the human rights to force a country to accept any value or rule which is not suitable for the local people of the country, against their social values, religions or can cause lots of problems to the country. And it is not right to force a country to agree on something that is actually against their Constitutions and rules of laws.

Related articles:

COMANGO And Human Rights

PPMM’s NGI Round Table Discussion On UPR Human Rights Council 2013








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