Apabila Buku Teks Undang-Undang Tidak Berperlembagaan

8 08 2017

For my 14th birthday this year, my eldest sister gave me a law textbook entitled “A First Look at the Malaysian Legal System”, written by Wan Arfah Hamzah and published by Oxford Fajar.

I was very excited to receive a book on the subject that is close to my heart, and so I began reading the book.

As I reached the fourth paragraph of page four, I noticed something peculiar:

“The federation is a secular state (see below, pp 162-3). It is not an Islamic state (an indispensable feature of which is the supremacy of the Syariah or Islamic law). In Malaysia the supreme law is the Federal Constitution (Article 4), not the Syariah or the Islamic law. Far from being the supreme law, Islamic law is not even the basic of the law of the land, ie the law of the general application. The basic law of Malaysia is the common law—the principles of which have their origins in England”

~Page 4 – A First Look at the Malaysian Legal System

It is very alarming that a law text book can make such a dreadful mistake in defining the core principal of our country.

The point is, does the Federal Constitution which is the supreme law of the Federation, ever define Malaysia as a secular country?

To understand more about secular countries, please click here for: Malaysia Bukan Sekular

In “The Principles of Secularism”, the author and creator of the term ‘secularism’ George Jacob Holyoake defines secularism as separating government and religion; while Merriam-Webster defines secularism as “the belief that religion should not play a role in government, education, or other public parts of society”.

In reference to the ideology of our country, the Article 3(1) of the Federal Constitution states that:

Islam is the religion of the Federation; but other religions maybe practised in peace and harmony in any part of the Federation.

In actual fact, without doubt, the Article 3(1) automatically denies any claim that says Malaysia is a secular state; for a country cannot be a secular state when it has a specific state religion, in this case Islam which makes Malaysia an Islamic state.

Anybody who reads the Federal Constitution, will find out that the word “secular” has never been mentioned in the Federal Constitution but Islam is mentioned again and again through out the Constitution, proving the importance of Islam as the basic structures of the Constitution.

The Federal Constitution must be read as a whole and no provision can be considered in isolation, as stated by then President of the Court of Appeal Tan Sri Md Raus Sharif  in the Federal Court case of ZI Publications Sdn Bhd and Another v Kerajaan Negeri Selangor:

It is an established principle of constitutional construction that no one provision of the Federal Constitution can be considered in isolation. That particular provision must be brought into view with all the other provisions bearing upon that particular subject. This Court in Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd & Anor [2004] 2 MLJ 257, applied the principle of considering the Constitution as a whole in determining the true meaning of a particular provision. This Court held:-

“A study of two or more provisions of a Constitution together in order to arrive at the true meaning of each of them is an established rule of constitutional construction. In this regard it is pertinent to refer to Bindra’s Interpretaion of Statue 7th Ed which says at page 947-948″

It is absurd to conclude that Malaysia is a secular country because of “the supreme law is the Federal Constitution (Article 4), not the Syariah or the Islamic law” for the Article 4 in no way dispute the constitutionality of the Article 3(1); and the fact that Malaysia has both the civil and the Syariah Court systems proves that Malaysia is not a secular country.

The fact is, it is the Article 4 that intensify the fact that Malaysia is an Islamic country because Islam as the religion of the Federation is placed in the Article 3(1) which is in a higher order of precedence of the Articles than the Article 4.

Therefore it gives Islam a higher position than the supreme law itself, meaning the supreme law of the land must be read and interpreted subjected to Islam as the religion of the Federation as mentioned by the then Federal Court Judge, Tan Sri Apandi Ali in the Court of Appeal judgement of Titular Roman Catholic Archbishop of Kuala Lumpur v. Kementrian Dalam Negeri & Kerajaan Malaysia, also known as the Kalimah Allah case:

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

In answering the argument regarding the intention of the Reid Commission, first we have to understand that it is the Royal Rulers and not the Reid Commission who are the real stake holders of our country.

The Reid Commission was only given the responsibilities to draft the Federal Constitution but it is the Malay Royal Rulers who had the rights to make the final say on the matter as well as to give the endorsements for the words to be written in the Federal Constitution.

It is vital to note that both the Reid Commission and the Cobbold Commission are neither law makers nor the state holders of our country, hence their words and intentions are not laws, therefore their intentions cannot change the words written in the supreme law of our Nation.

As for claiming that Che’ Omar bin Che’ Soh v. Public Prosecutor defines Malaysia as a secular country, this is a very lame argument with no valid fact to justify the claim.

In the Supreme Court decision of Che Omar Che Soh v Public Prosecutor (1988) 2 MLJ 55, the Judge, Tun Salleh Abbas only said that Malaysia follows the secular laws from the British, and did not say that Malaysia is a secular state; so how could this case be used to prove something that was not even stated in the judgement?

Furthermore, this is an old case which is no longer a good law.

We must look at the judgments of other more important and prominent later court cases 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, Federal Court case of ZI Publications Sdn Bhd and Another v Kerajaan Negeri Selangor and a lot more that clearly prove that Malaysia is an Islamic country.

In fact, the fact that it is the government’s constitutional duty to protect the sanctity of Islam also denies that Malaysia is a secular country.

This is proven by the Court of Appeal judgement of Titular Roman Catholic Archbishop of Kuala Lumpur v. Kerajaan Malaysia & Menteri Dalam Negeri, when YA Dato’ Abdul Aziz Rahim said:

I would add however that the position of Islam as the religion of the Federation, to my mind imposes certain obligation on the power that be to promote and defend Islam as well to protect its sanctity. In one article written by Muhammad Imam, entitled Freedom of Religion under Federal Constitution of Malaysia – A Reappraisal [1994] 2 CLJ lvii (June) referred to by the learned counsel for the 8th appellant it was said that: “Article 3 is not a mere declaration. But it imposes positive obligation on the Federation to protect, defend, promote Islam and to give effect by appropriate state action, to the injunction of Islam and able to facilitate and encourage people to hold their life according to the Islamic injunction spiritual and daily life.”

In a secular state, not only the government has no constitutional duty to protect the sanctity of a particular religion, but it is wrong for the government to do so.

Apart from Article 3(1), the Articles 11(4), 12(2), 37, 121(1A) and a lot more further prove that Malaysia is and was meant to be an Islamic state and not a secular state; unless the book tries to redefine ‘secularism’ or implying that the Articles 3(1), 1(4), 12(2), 37, 121(1A) and others related to Islam are unconstitutional.

Such severe mistake in the law textbook regarding the ideology of our country that contradicts the Federal Constitution should not have happened because all Malaysian must respect and uphold the Federal Constitution of Malaysia and making such a mistake regarding the core principle of our country is really uncalled for.

We surely do not need constitutionally illiterate lawyers!

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Act 355: Answering “CCM Says Hadi’s Bill Will Radically Rewrite Constitution”

18 10 2016

In preserving a harmonious country, the people of Malaysia from all faiths and races must uphold the Federal Constitution, respect each other, obey the laws of our country and must not insult others.

As a person in his position who always talks about unity and harmony, Hermen Shastri must not insult the Muslims by making rude, harsh and false accusations regarding the Syariah punishments as well as the PAS president’s Bill.

After all, why must non-Muslims try so hard to deny the constitutional rights of the Muslims to manage our own religious affairs as written in Article 11(3) of our Federal Constitution?

In its article, “In plea to MPs, CCM says Hadi’s Bill will ‘radically’ rewrite constitution”, Malay Mail Online (MMO) wrote:

Council of Churches of Malaysia (CCM)’s secretary-general, Reverend Dr Hermen Shastri recently claimed that a vote for the Act 355 Bill which was tabled by PAS’ president, Dato’ Seri Haji Hadi will “radically” rewrite the Federal Constitution, urging MPs to not look at the Bill lightly and instead view it with “great concern and alarm”  Malay Mail Online.

MMO later quoted Shastri as saying:

“Hadi’s Bill is not just about upgrading the power of the Shariah Courts, it is rewriting the constitution in a radical way,” – Malay Mail Online.

Now, what does the CCM leader’s intention of using the words, “… in a radical way” when Hadi’s Bill is in no way will bring any changes to the Constitution?

The fact is, the Bill is only to increase the Syariah punishments which maximum punishments are currently too low and not to introduce new sets of laws.

MMO also wrote that:

Shastri pointed out that Shariah Courts were established and regulated by state laws, and that their powers and offences were defined by the Federal Constitution  Malay Mail Online.

The Bill will not change this fact, the Shariah Courts will still be regulated by State laws while the Civil Courts will still be regulated by Federal laws.

bill

Worse, Herman Shastri’s wild accusation gives the implications to people who believe his words that those who are telling the truth about the Bill are liars; which will cause anger and hatred that can divide the people.

According to MMO:

He added that the ramification to widen Islamic laws was not only limited to those who are Muslims  Malay Mail Online.

Another false statement because under the laws of Malaysia, non-Muslims are not subjected to the Syariah Laws.

Section 2 of the Act 355 clearly says that the Syariah Court has no jurisdiction over the non-Muslims and Hadi’s Bill is not about amending the Section 2 of the Act 355 to give the Syariah Courts the jurisdiction over the non-Muslims.

Also said by Shastri:

“Once we lose the balance between Syariah and Civil Courts as set forth in our Federal Constitution, it is going to lead to a dangerous path of conflicting jurisdictions; forms of punishment not acceptable in modern societies; and erosion against the liberal secular status of the Constitution and its impact especially on the states of Sabah and Sarawak,”

~Malay Mail Online

Firstly, what does the CCM’s secretary-general mean by “forms of punishment not acceptable in modern societies”?

From the above sentence, I understand the above rude phrase is written in reference to the Syariah punishment, which is clearly an insult to Islam, the religion of the Federation and to the Muslims who believe in the teaching of Islam.

Is insulting and scoffing at other religions an attitude that is “acceptable in modern societies”?

There is no case of “… erosion against the liberal secular status of the Constitution”, because the status of our Federal Constitution is neither liberal nor secular since Article 3(1) of our Federal Constitution stated that Islam is the religion of the Federation.

In fact, the words liberal and secular have never been mentioned in our Federal Constitution.

To understand a secular constitution, please refer to the constitution of the United States of America and read the interesting case about Mount Soledad.

As a CCM leader, Hermen Shastri must be really careful of what he said, especially when commenting about other religions, please do not scoff at or insult other religion.

Do not insult others and learn to respect the constitutional rights of others.

He must get his facts right from the people who understand the matter for if not, not only it will be a pointless statement which doesn’t make any sense but it will also cause anger and hatred.

The rights of the Muslims to be governed by the Islamic law is granted under the Federal Constitution of our country.

In the judgement of ZI Publications Sdn Bhd and Another v Kerajaan Negeri Selangor, the Court of Appeal president Tan Sri Md Raus Sharif concluded:

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.

Hadi’s Bill only concerns the lives of the Muslims and we are not disturbing people of other faith.

We want to prevent and solve social problems among the Muslims as some offences punishable by the Syariah Courts are not considered as offences under civil law, such as Muslims drinking alcohol in public which can also cause problems to non-Muslims as in the cases of violence when they are drunk.

So why must it become a problem to non-Muslims when the Muslim are working to solve our social problems and helping each other to become better Muslims and better human being?

Are the people who are against the Bill are against the faithful Muslims?

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Datuk Noor Farida And G25 Must Go Back To School

9 12 2015

Moderation in Islam means wasatiyyah and not being liberal as understood by G25.

G25 members who are trying to teach other Muslims about moderation in Islam must seek advises from Global Movement of Moderates Foundation (GMM) to understand what is ‘moderation’ in Islam. 

In its latest attack on the Islamic authorities of Malaysia, G25 wants the punishment for ‘khalwat’ to be repeal on the ground of “those are personal sins”; and in response to the statement, Mufti Perak, Tan Sri Dr. Harussani Zakaria adviced G25 to “bertaubat”.

Below are my answers (in blue) to Free Malaysia Today (FMT)’s article (in red) regarding this issue.

PETALING JAYA: A “personal sin” like khalwat (close proximity) is between the couple involved and God and should not be treated like a crime punishable by the state, said the G25 movement of Malay moderates.

Speaking on their behalf was Noor Farida Ariffin, who was quoted by The Rakyat Post as saying, “Those are personal sins. It’s a sin against God. Between that person and God.”

Does Datuk Noor Farida mean to say that khalwat is just “personal sin” and is not punishable by the State according to the Islamic laws? Now, is she trying to liberalise the Islamic laws or she knows nothing about the Islamic laws? Datuk Noor Farida must understand that the Islamic laws cannot be changed. Muslims must live according to the rules of Islam and not the other way around.

Khalwat is against the Islamic laws, so it is punishable by the State in Malaysia because as an Islamic country, Muslims in this country are also governed by the Islamic personal law as written by The Right Honourable Tan Sri Dato’ Seri Md Raus bin Sharif in the Federal Court judgement of the case, ZI Publications Sdn Bhd and Another v Kerajaan Negeri Selangor:

“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”.

In Malaysia, we have the Syariah Court that deals with the Islamic laws, and it has the jurisdiction upon every Muslim in this country. 

Questioning why it was turned into a crime, she added, “Islam says you could not intrude on personal space.”

Datuk Noor Farida Ariffin, who does not understand Islam and the Islamic laws should not speak about matters that she knows nothing about. Rather than making her own conclusion and judgement about khalwat and other Islamic laws, she should go to JAKIM and ask for help to guide her to the right path of Islam. She really needs help.

She said this at a press conference after a G25 forum on “Islam in a Constitutional Democracy” and noted that Malaysia was the only country in the world that punished those involved in khalwat.

Datuk Noor Farida must do her homework. Countries that observe the Islamic laws in their legal systems, will punish those involved in khalwat, for example Saudi Arabia and Brunei. 

“This is against Islam. You cannot knock at a person’s door at 3am and arrest people.”

Does she mean that actions taken by the Islamic authorities against khalwat (that is against the Islamic law) is against Islam? She is really confused between what are the rights and wrongs in Islam. It is her statements that is actually against Islam.

She also said there was a need to review other syariah laws that trespassed on the Federal Constitution and pointed out that even non-Muslims were being affected by the Islamic law presently.

All the Articles in the Federal Constitution are harmoniously with each other. The Syariah laws does not trespassed the Federal Constitution because the Article 3(1) states that Islam is the religion of the Federation, hence the other Articles in the Federal Constitution must be read harmoniously with Article 3(1).

In fact, the Federal Constitution recognises the Syariah Court as stated in the Article 121(1)(1a) of the Federal Constitution:

121. (1) There shall be two High Courts of co-ordinate jurisdiction and status, namely—

(a) one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di-Pertuan Agong may determine; and

(b) one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine;

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

The Syariah laws only govern the Muslims and does not affect the non-Muslims.

She cited the incidents of dead bodies being snatched for Muslim burials and custody issues when one spouse converts to Islam and explained, “This is the kind of injustices we want to prevent.

Datuk Noor Farida must get her facts rights. This is a malicious distortion of truth used again and again to undermine the Islamic religious authorities even after the Islamic religious authorities had answered the accusations. When the Islamic authorities receive a report, it is their duty to investigate and to take proper actions to solve the problems.

“The way Islam is being implemented under syariah law is resulting in a lot of injustice to Muslims and non-Muslims.

Datuk Noor Farida must learn more about Islam and the implementation of the syariah laws in Malaysia before making more silly statements. Only the Muslims who do not love their religion and do not want Islam as the way of life are against the implementation of the Syariah laws in their countries.

“This is why people are saying that Islam has been hijacked by state authorities,” she said, adding that the way it was being interpreted did not uphold the values of Islam as a religion of justice, mercy and compassion.

People made all kinds of statements and accusations regarding matters which are not agreeable to them; so Datuk Noor Farida must specify who are the people who made the above statements.

She must mix around with more Muslims and attend programs organised by Islamic groups rather than only making friends with the people who subscribe to the liberal ideology in order to see things straight. 





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.

 





Ezra Zaid vs Syariah Court Of Selangor

25 10 2015

I see the case of ZI Publications Sdn Bhd and Another v Kerajaan Negeri Selangor as like looking at a case of ‘Article 10(1) of the Federal Constitution v Article 3(1) of the Federal Constitution’ or ‘Freedom of speech v Religion of the Federation.’

(Please read MMO Did Not Apologise For Boo Su Lyn’s Seditious Article).

A Muslim named Mohd Ezra bin Mohd Zaid was charged before the Syariah Court of Selangor for publishing a book which is contrary to Islamic law.

The petitioners, ZI Publications Sdn Bhd (first petitioner) and Mohd Ezra bin Mohd Zaid (second petitioner) were seeking for a declaration that section 16 of the Syariah Criminal Offences (Selangor) Enactment 1995 is invalid.

Ezra fought that according to the Federal Constitution, the Selangor State Legislative Assembly has no power to legislate a law that “has the effect of restricting and/or has the potential to restrict freedom of expression” as stated in Article 10.

The book, “Allah, Kebebasan, Dan Cinta”, a Malay translation of, “Allah, Liberty, and Love” is written by Irshad Manji, a person who does not understand Islam, and her interpretations of Islam and the Islamic law is contrary to the teaching of Islam.

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.

In his judgment, President of the Court of Appeal Tan Sri Md Raus Sharif said:

“Thus, in the present case, we are of the view that Article 10 of the Federal Constitution must be read in particular with Articles 3(1), 11, 74(2) and 121. Article 3(1) declares Islam as the religion of the Federation. Article 11 guarantees every person’s right to profess and practise his religion and to propagate it. With regard to propagation, there is a limitation imposed by Article 11(4) which reads:-

“(4) State Law and in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.””

So, it is very clear that Article 10 must be read harmoniously with Article 3(1) of the Federal Constitution since Article 3 is placed in Part I, while Article 10 was placed in Part II of the Federal Constitution.

Logically, the Articles that are placed in Part I should be of more importance than the ones in Part II.

In his conclusion 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.

The question is, why must a Muslim publishes a book containing deviant teachings and took a state government to court for protecting other Muslims from the deviant teaching (from the book) as conferred by the Article 11(4) of the Federal Constitution?

Note:

Article 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 74(2): Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.

Article 121(1a): The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.

 








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