Thursday 1 May 2014
Polygamous murderer fights Pa. prison ban on conjugal visits with his multiple wives
A polygamous convicted murderer who claims his religious rights are being violated is challenging a long-standing state Corrections Department policy that bars him from having conjugal visits with his multiple wives.And on Tuesday, Commonwealth Court gave Gregory Thomas the chance to keep pressing his case.
The judges did so by denying preliminary objections by the state Corrections Department, which sought a complete dismissal of Thomas' legal challenge to its policy that forbids all inmates from having conjugal visits to have sexual relations with their spouses or significant others.
Thomas, 55, a Muslim, has been serving a life term for a murder in Philadelphia since 1990. He currently is in the state prison at Huntingdon.
He claims his religion requires him to have multiple wives, although court documents don't say how many wives he has.
In the Commonwealth Court's opinion on his case, Judge P. Kevin Brobson noted that Thomas claims the conjugal visit ban "has a detrimental effect on the status of his marriages because his wives are threatening to divorce him under Islamic religious rules if they are unable to have intercourse with him."
Also, Brobson wrote, Thomas contends that the conjugal visit prohibition discriminates against heterosexual inmates because those who are homosexual can engage in sex with each other.
"Thomas also avers that the presence of female correctional officers causes him emotional stress," which he claims violates the U.S. Constitution's ban on cruel and unusual punishment, the judge noted.
The Corrections Department, meanwhile, argued that the prohibition on conjugal visits is a legitimate and legal security measure. Most state prison systems do no allow conjugal visits.
The state judges agreed with the Corrections Department that Thomas failed to show his constitutional rights to freedom of religion and freedom from cruel and unusual punishment are being violated by the conjugal visit ban.
However, the judges allowed Thomas to keep pressing his argument in court after concluding that he still has a case under the federal Religious Land Use and Institutionalized Persons Act, which prohibits measures that prevent prisoners from worshipping as they please.
That act requires the Corrections Department to show not only that it has a legitimate security reason for barring conjugal visits, but also that the ban "is the least restrictive means available to accomplish the objective," Brobson wrote.
The state court used the same rationale in refusing to grant a blanket dismissal sought by the Corrections Department to other legal challenges Thomas is mounting against policies that deny inmates the use of prayer oil and which curb the number of people they may have on their phone lists.
Thomas claims the oil ban violates his religious rights and that the phone restrictions breach his constitutional right to free association because no two inmates are allowed to have the same people on their lists of those who are allowed to have contact with them by phone.
Prison officials said the prayer-oil ban is in place to prevent inmates from using such oil to mask the smell of illegal drugs. They argue that the oil also poses a danger because it is flammable. Prison policy allows Muslim inmates to have a small amount of scented oil placed on their wrists for prayer purposes, they noted.
As for the phone policy, the Corrections Department argued that the law does not allow inmates unlimited phone rights and that prisoners have other means, including letters, to communicate with the outside world.
Commonwealth Court did throw out another challenge by Thomas to a Corrections Department policy that prohibits inmates from buying items from outside sources if those items are available in the prison commissaries.
Dr M: Chinese are rich and Indians are lawyers
Disagreeing with US President Barack Obama, Dr
Mahathir Mohamad said the Chinese and Indians are wealthy and successful
in Malaysia.
"In
Malaysia, despite our policies, Do you see the Chinese poor? The
Indians are professionals, they are lawyers and doctors," he told
reporters.
"Those who didn't come to Malaysia are not so fortunate," Mahathir added.
The former prime minister also said that he agreed with American economist Joseph Stiglitz that there is huge inequality in the US.
Obama had ruffled the feathers of certain quarters, when he said that Malaysia would not succeed if non-Muslims are not given equal opportunities.
"I would like you to read Joseph Stiglitz’s book ('The Price to Pay for Inequality').
"He points out that there is no equality in the US at all. One percent owns all the wealth and the rest are poor. That is why there is a group calling themselves the '99' who wants to occupy Wall Street," Mahathir said.
'Stiglitz spoke more truth than Obama'
He reiterated that Stiglitz spoke more truth than Obama, who was the first American president to visit Malaysia in nearly 50 years.
Obama was welcomed with much fanfare when he came to Malaysia last weekend and met the Yang di-Pertuan Agong, the prime minister and cabinet ministers.
He also had a town hall dialogue to rally Southeast Asian youth leaders and the civil society movement.
Despite
rebuking Obama's recommendations on how to treat minorities, Mahathir
did say it was good that a US president had, at least, touched down in
Malaysia.
"Obama's visit can only help expose him to Malaysia. I am confident that he has heard much before this but had no clue about what Malaysia is," he said.
To a question on Obama's visit to the National Mosque and royal tombs, he said that he applauded the "very diplomatic" move.
"He's good at winning hearts, that's why he won (the US elections)," Mahathir said.
"In
Malaysia, despite our policies, Do you see the Chinese poor? The
Indians are professionals, they are lawyers and doctors," he told
reporters."Those who didn't come to Malaysia are not so fortunate," Mahathir added.
The former prime minister also said that he agreed with American economist Joseph Stiglitz that there is huge inequality in the US.
Obama had ruffled the feathers of certain quarters, when he said that Malaysia would not succeed if non-Muslims are not given equal opportunities.
"I would like you to read Joseph Stiglitz’s book ('The Price to Pay for Inequality').
"He points out that there is no equality in the US at all. One percent owns all the wealth and the rest are poor. That is why there is a group calling themselves the '99' who wants to occupy Wall Street," Mahathir said.
'Stiglitz spoke more truth than Obama'
He reiterated that Stiglitz spoke more truth than Obama, who was the first American president to visit Malaysia in nearly 50 years.
Obama was welcomed with much fanfare when he came to Malaysia last weekend and met the Yang di-Pertuan Agong, the prime minister and cabinet ministers.
He also had a town hall dialogue to rally Southeast Asian youth leaders and the civil society movement.
Despite
rebuking Obama's recommendations on how to treat minorities, Mahathir
did say it was good that a US president had, at least, touched down in
Malaysia."Obama's visit can only help expose him to Malaysia. I am confident that he has heard much before this but had no clue about what Malaysia is," he said.
To a question on Obama's visit to the National Mosque and royal tombs, he said that he applauded the "very diplomatic" move.
"He's good at winning hearts, that's why he won (the US elections)," Mahathir said.
'Speak up, Najib, for Obama struck the heart' - Malaysiakini
"These
comments strike at the very heart of his (Najib's) administration. He
must now respond," added the Puchong MP in a statement today.Gobind was commenting on Obama's call for Malaysia to dismantle laws and policies which sideline religious and ethnic minorities.
Warning that it would impede Malaysia's success, the president had said prejudices against people from different religions and races have no place in the modern world and must be removed.
"He is absolutely right," Gobind said.
The opposition MP argued that the time had come to accept that preference along racial lines failed to assist in nation building.
"That would only lead to a society with deeply embedded feelings of oppression and this would ultimately lead to a breakdown in relations between its people.
"Malaysia must find ways by which it can move away from politics in which race dominates.
"We must work harder to build a 'Malaysian Malaysia' if we hope to see this country live up to basic principles of constitutional democracy," he added.
Pointing out that Najib once mooted the 1Malaysia concept, Gobind said this in itself was a recognition on the part of BN that the country had moved backwards in terms of nation building ever since independence.
"Nevertheless, the prime minister has failed in following through with the concept.
"His administration has in fact moved to further tighten its grip against dissent with the use of laws such as the Sedition Act against those who speak up against oppression, marginalisation and discrimination and this trend, I believe, is set to continue," he added.
As for Obama, Gobind said the US president made a "clear and sharp observation" about the situation in Malaysia during his brief official visit.
Home Minister Ahmad Zahid Hamidi had immediately refuted the president's remarks, claiming that the government is fair to all races.
Obama's statements also drew condemnation from various Malay rights groups.
Non-Muslim students quizzed on Islamic issues
Non-Muslim students, who applied for Majlis
Amanah Rakyat (Mara) scholarships, have been quizzed on Islamic matters
and this has raised the ire of Sarawak politicians.
During interviews, the students alleged that they were asked about hudud as well as their on knowledge regarding Muslim prayers.
Iban
student Nigel Unchat Jeremiah, who scored straight As in his SPM
examination, had raised the matter with Parti Rakyat Sarawak (PRS)
president and state minister James Masing (left).
Nigel claimed that during the "open question and answer" session, he was asked questions on Islamic issues, including the names of Muslim prophets.
The student wanted to apply for a MARA scholarship to pursue a mechanical engineering programme at Kolej MARA Seremban, Negeri Sembilan.
There was also another Iban student who he claimed had been asked similar questions.
The interview, where candidates were divided in groups of 10, was conducted at Maktab Rendah Sains MARA in Semariang.
Attempt to disqualify non-Muslim students?
Criticising Mara officers, Masing said: "They should be more careful in framing their questions, and must not raise irrelevant issues and questions.”
Questioning the motive of asking such questions, the senior minister believed that it was to disqualify non-Muslim candidates.
"The questions were irrelevant to begin with as if the officers were religious bigots. Just because Malaysia is a Muslim country, it does not mean the whole nation knows about Islamic teachings.
"They should not have asked Islamic-based questions. It is plain wrong. What relevance do these questions have to applying for a higher learning scholarship?
"I don't want this incident to happen again especially in Sarawak where there are many natives and Muslims are in the minority," he added.
How long has this been happening?
Also furious about the incident, Sarawak PKR chief Baru Bian (right) said if the allegations were true, it amounted to blatant discrimination.
"This is another proof of those in authority trying to subtly Islamise the non-Muslim students and suppress the minorities in Malaysia,” he added.
Demanding for an investigation, the Ba'Kelalan assemblyperson said: "This fund is a public fund and it would be a clear abuse of power by these officers. I wonder how long this has been going on.”
Meanwhile, DAP Serian branch chairperson Edward Luak accused MARA officers of purposely trying to disqualify non-Muslim native students from getting scholarships.
"They cannot ask questions related to Islamic matters to students who are Christians.
"Of course they cannot answer those questions. This is most unfair," the retired district officer said.
During interviews, the students alleged that they were asked about hudud as well as their on knowledge regarding Muslim prayers.
Iban
student Nigel Unchat Jeremiah, who scored straight As in his SPM
examination, had raised the matter with Parti Rakyat Sarawak (PRS)
president and state minister James Masing (left).Nigel claimed that during the "open question and answer" session, he was asked questions on Islamic issues, including the names of Muslim prophets.
The student wanted to apply for a MARA scholarship to pursue a mechanical engineering programme at Kolej MARA Seremban, Negeri Sembilan.
There was also another Iban student who he claimed had been asked similar questions.
The interview, where candidates were divided in groups of 10, was conducted at Maktab Rendah Sains MARA in Semariang.
Attempt to disqualify non-Muslim students?
Criticising Mara officers, Masing said: "They should be more careful in framing their questions, and must not raise irrelevant issues and questions.”
Questioning the motive of asking such questions, the senior minister believed that it was to disqualify non-Muslim candidates.
"The questions were irrelevant to begin with as if the officers were religious bigots. Just because Malaysia is a Muslim country, it does not mean the whole nation knows about Islamic teachings.
"They should not have asked Islamic-based questions. It is plain wrong. What relevance do these questions have to applying for a higher learning scholarship?
"I don't want this incident to happen again especially in Sarawak where there are many natives and Muslims are in the minority," he added.
How long has this been happening?
Also furious about the incident, Sarawak PKR chief Baru Bian (right) said if the allegations were true, it amounted to blatant discrimination."This is another proof of those in authority trying to subtly Islamise the non-Muslim students and suppress the minorities in Malaysia,” he added.
Demanding for an investigation, the Ba'Kelalan assemblyperson said: "This fund is a public fund and it would be a clear abuse of power by these officers. I wonder how long this has been going on.”
Meanwhile, DAP Serian branch chairperson Edward Luak accused MARA officers of purposely trying to disqualify non-Muslim native students from getting scholarships.
"They cannot ask questions related to Islamic matters to students who are Christians.
"Of course they cannot answer those questions. This is most unfair," the retired district officer said.
Uthaya’s lawyer wants action to be taken on warder
The complaint follows a letter sent by Uthayakumar’s lawyer M Manoharan to Home Minister Ahmad Zahid Hamidi, dated today, asking the ministry to take action on the warder and others who had threatened to hurt his client.
Manoharan in the letter claims a prisoner by the name of R Vijayakumar had lodged a formal complaint alleging that a prison warder (named only as Ramana) had asked him to injure Uthayakumar badly.
“I met with Vijayakumar on April 23, where he verified that he had been asked by the warder to hurt Uthayakumar. This follows Uthayakumar has raised issues which are detrimental to the Kajang prison authorities including the discrimination and violence on the inmates there,” he said.
“Vijakumar said he had been offered tobacco if he successfully injured Uthayakumar. The warder also told Vijakumar that if he successfully hurt Uthayakumar, and is found guilty and placed in a dark room, he (Vijayakumar) would be given special treatment by the prison authorities.”
Manoharan said Vijayakumar also informed him that threats were also made against him for lodging the formal report.
Manoharan states that they view the threats on Uthayakumar seriously, and wanted the minister to investigate this allegation.
Prior to this, it was reported that Uthayakumar had last week filed a court action to initiate committal proceedings against the Kajang prison director and two warders for not abiding with the Kuala Lumpur High Court ruling to allow lawyers to meet him.
In the application, Uthayakumar claimed he was not separated from other hardcore prisoners in his cell, whereas the court had considered him a political prisoner and should be held isolated from others.
Manoharan further said Uthayakumar told him on April 23 that he had been kept in a dark room, without any reason or being charged with any offence.
“We want the minister to take swift action against the prison warder alleged in the matter before some untoward incident befell my client. The prison authorities should not react in such a manner as this go against the principle of rule of law and natural justice,” he said.
Uthayakumar is serving a two-and-a-half years jail sentence after being found guilty of sedition.
Dr M: PAS using hudud to win Malay votes
Their attempt to implement hudud is merely to gain political mileage, says Dr Mahathir.
KUALA LUMPUR: Former prime minister Dr Mahathir Mohamad said that PAS is attempting to implement hudud so they can win Malay votes and the current hudud issue is all about politics and has nothing to do with Islam.
“PAS is doing this to gain political mileage and if they go ahead with their plan to implement hudud law in Kelantan, the Muslims will call it ‘Islamic’ and support the party. During my time hudud was never an issue,” he said.
He added that maybe PAS thinks the current government needs support, because during his time, he held absolute power with a two-third majority.
Mahathir said that he had written a letter to the PAS spiritual adviser Nik Aziz Nik Mat with an explanation based on Islam.
He said the letter was not based on secular issues or anything else but was simply based on Islam.
“In hudud the stress in the Quran is based on ‘justice’. When you punish a person, punish with justice. When you judge a person, judge with justice.
“In Malaysia there cannot be justice if you only apply the hudud law to Muslims and the non-Muslims are exempted.
“You cut-off the hand of a Muslim and the non-Muslim gets two months jail is that what you call justice? If it is not justice, it is not Islamic.”
“Leave it up to the present government to decide on the hudud matter as they are in power,” he said.
Recently, Kelantan Menteri Besar Ahmad Yaakob announced his plans to implement hudud in the state after Minister in Prime Minister’s Department Jamil Khir Baharom and Kelantan Umno chief and Ketereh MP, Annuar Musa announced that they would support the move.
PAS information chief Mahfuz Omar had urged all parties to respect the democratic rights of the Islamic party to present the private member’s bill.
“PAS is doing this to gain political mileage and if they go ahead with their plan to implement hudud law in Kelantan, the Muslims will call it ‘Islamic’ and support the party. During my time hudud was never an issue,” he said.
He added that maybe PAS thinks the current government needs support, because during his time, he held absolute power with a two-third majority.
Mahathir said that he had written a letter to the PAS spiritual adviser Nik Aziz Nik Mat with an explanation based on Islam.
He said the letter was not based on secular issues or anything else but was simply based on Islam.
“In hudud the stress in the Quran is based on ‘justice’. When you punish a person, punish with justice. When you judge a person, judge with justice.
“In Malaysia there cannot be justice if you only apply the hudud law to Muslims and the non-Muslims are exempted.
“You cut-off the hand of a Muslim and the non-Muslim gets two months jail is that what you call justice? If it is not justice, it is not Islamic.”
“Leave it up to the present government to decide on the hudud matter as they are in power,” he said.
Recently, Kelantan Menteri Besar Ahmad Yaakob announced his plans to implement hudud in the state after Minister in Prime Minister’s Department Jamil Khir Baharom and Kelantan Umno chief and Ketereh MP, Annuar Musa announced that they would support the move.
PAS information chief Mahfuz Omar had urged all parties to respect the democratic rights of the Islamic party to present the private member’s bill.
Malaysians fighting in Syrian war
Five young Malays have joined an al-Qaeda splinter group, says a source.
EXCLUSIVE
KUALA LUMPUR: At least five young Malaysians are fighting alongside a radical Islamic group in Syria to oust Bashar al Assad’s regime, according to a source who claims to have met one of them.
Speaking on condition of anonymity in a recent FMT interview, the source said all five were Malays below the age of 25 and had no military training before they joined the Islamic State of Iraq and the Levant (ISIL), a group that broke away from al-Qaeda last February and is currently active in Syria and Iraq.
“The only number I can confirm is five, but there could be more,” he said. “They come from different backgrounds. Not all of them went to religious school. Some decided to join the war after learning of the Assad regime’s cruelty through news articles and video clips on the Internet.”
He said he met one of the fighters recently when he returned to Malaysia for a brief family visit.
ISIL, also known as ISIS (Islamic State of Iraq and Syria), believes in the strict enforcement of Syariah law. Its aim is to create a Sunni Islamic state covering Iraq and Syria’s eastern desert provinces.
Asked if he knew which organisation in Malaysia was recruiting jihadists for Syria, the source said he had no such information.
“I was told they have meetings here, but I don’t know exactly where they meet and what they discuss. I don’t even know if there is one group or more and I don’t know how they operate in Malaysia.
“My informant was secretive. He said such information could be revealed only to people committed to the cause.”
Turkish connection
However, the source said he did learn that the five jihadists met in Kuala Lumpur before taking a commercial flight to Turkey.
“They entered Turkey with normal visas and then they walked through the border into Syria. I don’t know how far they had to walk.”
According to Western European and Russian intelligence, part-time jihadists often go in and out of Syria across the Turkish border because of its proximity to the battle zone.
A high ranking official at Bukit Aman police headquarters told FMT “certain groups” were being monitored for suspected militant activities.
However, he said authorities could not stop anyone from flying out of the country because there was no law against that.
“We cannot stop them from flying out, and when they come back after completing their mission, they cannot be arrested. There is no law for that.”
In the past two days, Malaysian police have arrested 10 people suspected of planning militant attacks inside and outside the country.
They were arrested near Kuala Lumpur and in Kedah.
Police said they had received military-style training and were raising funds for attacks in Malaysia and other countries.
It is not clear whether any group responsible for recruiting jihadists for Syria is involved in the alleged plot.
EXCLUSIVE
Speaking on condition of anonymity in a recent FMT interview, the source said all five were Malays below the age of 25 and had no military training before they joined the Islamic State of Iraq and the Levant (ISIL), a group that broke away from al-Qaeda last February and is currently active in Syria and Iraq.
“The only number I can confirm is five, but there could be more,” he said. “They come from different backgrounds. Not all of them went to religious school. Some decided to join the war after learning of the Assad regime’s cruelty through news articles and video clips on the Internet.”
He said he met one of the fighters recently when he returned to Malaysia for a brief family visit.
ISIL, also known as ISIS (Islamic State of Iraq and Syria), believes in the strict enforcement of Syariah law. Its aim is to create a Sunni Islamic state covering Iraq and Syria’s eastern desert provinces.
Asked if he knew which organisation in Malaysia was recruiting jihadists for Syria, the source said he had no such information.
“I was told they have meetings here, but I don’t know exactly where they meet and what they discuss. I don’t even know if there is one group or more and I don’t know how they operate in Malaysia.
“My informant was secretive. He said such information could be revealed only to people committed to the cause.”
Turkish connection
However, the source said he did learn that the five jihadists met in Kuala Lumpur before taking a commercial flight to Turkey.
“They entered Turkey with normal visas and then they walked through the border into Syria. I don’t know how far they had to walk.”
According to Western European and Russian intelligence, part-time jihadists often go in and out of Syria across the Turkish border because of its proximity to the battle zone.
A high ranking official at Bukit Aman police headquarters told FMT “certain groups” were being monitored for suspected militant activities.
However, he said authorities could not stop anyone from flying out of the country because there was no law against that.
“We cannot stop them from flying out, and when they come back after completing their mission, they cannot be arrested. There is no law for that.”
They were arrested near Kuala Lumpur and in Kedah.
Police said they had received military-style training and were raising funds for attacks in Malaysia and other countries.
It is not clear whether any group responsible for recruiting jihadists for Syria is involved in the alleged plot.
Hudud an issue because Najib is weak, says Dr Mahathir
Tun
Dr Mahathir Mohamad speaking at the book launch of ‘A UN Chronicle’ in
Kuala Lumpur today. Mahathir said that the reason the implementation of
hudud was an issue was because of the weaknesses displayed by Prime
Minister Datuk Seri Najib Razak. – The Malaysian Insider pic by Afif Abd
Halim, April 30, 2014.
Tun Dr Mahathir Mohamad today said the reason PAS was making the implementation of hudud an issue was because of the weaknesses displayed by Prime Minister Datuk Seri Najib Razak.
The former prime minister said that PAS never played up the hudud issue when he was in office as the government then was strong.
"Maybe PAS thinks the current government needs support, because during my time, we held absolute power with the two-thirds majority," Dr Mahathir said today.
PAS is attempting to implement hudud in Kelantan because they want to be popular and win votes, Dr Mahathir said.
"PAS is doing this just to gain political mileage, it is not about Islam," he said.
"If PAS goes ahead with their plan to implement hudud in Kelantan, Muslims will call it ‘Islamic’ and support the party."
He said the hudud issue was simply about becoming popular because Malaysia was a democratic country, popularity will win a party votes.
Dr Mahathir said his stand on hudud had never changed, even though he was no longer in office.
"There is no justice if hudud is implemented because the hands of a Muslim thief are cut while a non-Muslim spends two months in prison.
"Is that justice? If it is not justice, then it is not Islamic," Dr Mahathir said.
He said he had written a letter to PAS spiritual adviser Datuk Nik Abdul Aziz Nik Mat with an explanation that was based on Islam.
"My letter was not based on any secular issues or anything else. It was simply based on Islam.
"The Quran stresses that when a punishment is meted out, it must be fair and just.
"In Malaysia, there will be no justice if hudud is implemented because it is only applicable to Muslims, and exempts non-Muslims."
Dr Mahathir was speaking to reporters at the Institute Diplomacy and Foreign Relations along Jalan Wisma Putra today.
He was officiating the launch of a book written by Malaysia's former permanent representative to the United Nations, Tan Sri Razali Ismail, entitled “A UN Chronicle”.
Ever since Kelantan Menteri Datuk Ahmad Yakob had announced a private member's bill which allowed the state to enforce shariah law, there was fierce opposition.
DAP national organising secretary Anthony Loke urged PAS to leave Pakatan Rakyat if it goes through with its plans to enforce hudud in Kelantan.
Najib reportedly said that the time was not right for Malaysia to have hudud.
PAS information chief Datuk Mahfuz Omar had appealed to all parties to respect the democratic right of the Islamic party to present the private member's bill.
"Irrespective of whether other parties supported or opposed PAS's hudud plans, they should still respect the party's democratic right to raise the issue in Parliament," he said.
"If the democratic process is not in favour of PAS, we will abide and are prepared to accept whatever decision," Mahfuz said. – April 30, 2014.
My views on hudud – Ivanpal Singh Grewal
Malaysia has once again been thrown into a political vortex and the credit this time goes to Parti Islam Se-Malaysia (PAS) who have expressed their intention to table a Private Member’s Bill in Parliament to provide for the enactment of a Shariah Criminal Offences (hudud) Enactment in Kelantan.
Before we go into the legality of the proposed Hudud Enactment, it is prudent for the position of Islam, vis-à-vis the Federal Constitution (FC) to be clarified and elucidated.
The Malaysian Constitution and the position of Islam
Malaysia is neither a theocratic state nor it is a fully secular state like Turkey or India. I say this because the FC states that Islam is the religion of the Federation (Article 3) and also prohibits the propagation of non-Islamic doctrines amongst Muslims in Malaysia (Article 11(4)). Hence, Islam enjoys a protection within our constitutional framework that other religious groups do not, but it does not in any way place Islam above any other religion because Article 3 provides for an incontrovertible guarantee that “other religions (besides Islam) may be practised in peace and harmony in any part of the Federation”.
Our Constitution is secular and the best description of our governance model is one that is secular based. A good example of a theocratic state would be Iran, and the Iranian Constitution of 1979 unambiguously reinforces this. Article 1 of the Iranian Constitution of 1979 states that: “The form of government of Iran is that of an Islamic Republic” while Article 2 explains this to mean, among other things, “the necessity of submission [to Allah]" and the “fundamental role” of “divine revelation” in “setting forth the laws.” Meanwhile, article 56 states that “absolute sovereignty over the world and man belongs to God".
A further example of an Islamic theocratic state is Maldives; in 2008, Maldives adopted a new constitution that states, inter alia, in order to be a citizen of Maldives, one has to profess the religion of Islam (Article 9(d)) and all laws have to be based on Islam and any law that is contrary to any tenet of Islam cannot be enacted in Maldives (Article 10(b)).
Malaysia’s constitution does not have such provisions, hence I am baffled by the attempts of certain quarters who maintain that Malaysia is an Islamic state. A year after Independence, on 1 May 1958, then–Prime Minister Tunku Abdul Rahman clarified this in the Legislative Council, saying, “I would like to make it clear that this country is not an Islamic state as it is generally understood. We merely provide that Islam shall be the official religion of the state.”
Again on his 80th Birthday, the Tunku reiterated that “the country has a multi-racial population with various beliefs. Malaysia must continue as a secular state with Islam as the official religion”.
Malaysia is a fully functional secular-based constitutional monarchy with Islam as the religion of the Federation. In coming to this assertion, I am aided by the decision of the Supreme Court of Malaysia in the case of Che Omar bin Che Soh v Public Prosecutor (1988), 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”.
Secular laws for a multi-religious country
Malaysia enjoys a sterling tradition as a multi-religious country. For centuries Muslims, Buddhists, Christians, Hindus and others have lived in peace and harmony. However, disputes over the usage of the term “Allah” by Christians to refer to God in the Bahasa Malaysia version of their Bibles and the confiscation of Bahasa Malaysia Bibles in Selangor have indeed put a strain on the strong and durable relationships between the various religious groups in Malaysia.
Our criminal laws and criminal justice system is secular and must remain secular because any attempt to change this would be tantamount to dismembering the basic structure of our constitution. The doctrine of basic structure finds its origins in the Indian Supreme Court decision in the case of Keshvanand Bharti v State of Kerala (1973). The Indian Supreme Court “struck a bridle path by holding that in the exercise of the power conferred by Art 368 (the article that lays down the procedure for amending the Indian Constitution), the Parliament cannot amend the Constitution so as to damage or destroy the basic structure of the Constitution”. Employing the sagacious logic of the Indian Supreme Court, I would argue that the Federal parliament or any State Legislature cannot pass any law that will alter the basic structure of our FC. The Federal Court must also be ready to exercise its powers as the defender of the FC and unwind any attempt to alter the basic structure of our country.
The administration of the criminal justice system and the powers to enactment criminal laws is clearly the purview of the Federal Government (List I, 9th Schedule of the FC). Part 4 (e)(ii) of List 1, 9th Schedule states that:
“Civil and criminal law and procedure and the administration of justice, including –
(e) subject to paragraph (ii), the following:
(i) contract; partnership, agency and other special contracts; master and servant; inns and inn-keepers; actionable wrongs; property and its transfer and hypothecation, except land; bona vacantia; equity and trusts; marriage, divorce and legitimacy; married women’s property and status; interpretation of federal law; negotiable instruments; statutory declarations; arbitration; mercantile law; registration of businesses and business names; age of majority; infants and minors; adoption; succession, testate and intestate; probate and letters of administration; bankruptcy and insolvency; oaths and affirmations; limitation; reciprocal enforcement of judgments and orders; the law of evidence;
(ii) the matters mentioned in paragraph (i) do not include Islamic personal law relating to marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law, gifts or succession, testate and intestate.”
Hence no state can pass any criminal laws because the constitution does not allow it even if it is a set of Islamic criminal laws and there must always be uniformity of laws. Article 75 of the FC unambiguously states that in the event there is any conflict between a federal and state law, federal law will prevail.
Hudud is also inconstant with Article 8 of the FC, the equality article, because we cannot have Muslims subjected to one form of punishment and non-Muslims subject to another form of punishment. In the case of hudud, those convicted of theft will have their limbs amputated but under our present, secular, criminal justice system, those convicted of theft will have to serve a custodial sentence.
Furthermore, how will the authorities seek to investigate and charge a suspect when there are two sets of criminal laws when the assailant is a Muslim and the victim a non-Muslim or vice versa? Non-Muslims by law do not have to appear before any Shariah court because it has no jurisdictions over non-Muslims. These sticky jurisdictional issues must be also factored into consideration to avoid a repeat the legal imbroglio that has followed the amendment to Article 121 of the FC.
While some have argued that hudud an entity of Islam and should hence come under the State’s List (List II, 9th Schedule), it is important to note that the State’s List grants powers to State Legislatures to enact laws: “1. Except with respect to the Federal territories of Kuala Lumpur, Labuan and Putrajaya, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs; Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques or any Islamic public place of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organisation and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law; the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom.” Hence, there is no provision for any enactment of criminal laws, whether Islamic or otherwise, by any state legislature because the administration of the criminal justice system is part of the Federal List.
Conclusion
I have no intention of wading into the beliefs of any religion – every religion possess its own system of laws in varying degrees – but as a matter of principle and to safeguard the supremacy and integrity of the Federal Constitution, we must strive to defend our secular nature.
Any form of theocratic criminal law is anathema to our long-standing tradition of religious harmony given the significant number of issues that already seek to divide us, and to further divide us on the basis of religion will be the most painful of all. I would dare say that an unbridled push for hudud may even lead to the balkanisation of Malaysia on the basis of religious lines.
All politicians must think and act as Malaysians, with the welfare of all Malaysians on their mind and oppose any attempt to enact hudud laws. I am proud that my party has made a clear and unequivocal stand on the matter. We are not opposed to any religion but we are compelled to defend the integrity of the Federal Constitution and our diverse way of life. It also does not augur well for the resounding minority in this country if the majority imposes their way on life on them, whether directly or indirectly. – April 30, 2014.
* Ivanpal Singh Grewal is the executive director of SEDAR Institute and a member of the Youth Central Committee, Parti Gerakan Rakyat Malaysia.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.
Before we go into the legality of the proposed Hudud Enactment, it is prudent for the position of Islam, vis-à-vis the Federal Constitution (FC) to be clarified and elucidated.
The Malaysian Constitution and the position of Islam
Malaysia is neither a theocratic state nor it is a fully secular state like Turkey or India. I say this because the FC states that Islam is the religion of the Federation (Article 3) and also prohibits the propagation of non-Islamic doctrines amongst Muslims in Malaysia (Article 11(4)). Hence, Islam enjoys a protection within our constitutional framework that other religious groups do not, but it does not in any way place Islam above any other religion because Article 3 provides for an incontrovertible guarantee that “other religions (besides Islam) may be practised in peace and harmony in any part of the Federation”.
Our Constitution is secular and the best description of our governance model is one that is secular based. A good example of a theocratic state would be Iran, and the Iranian Constitution of 1979 unambiguously reinforces this. Article 1 of the Iranian Constitution of 1979 states that: “The form of government of Iran is that of an Islamic Republic” while Article 2 explains this to mean, among other things, “the necessity of submission [to Allah]" and the “fundamental role” of “divine revelation” in “setting forth the laws.” Meanwhile, article 56 states that “absolute sovereignty over the world and man belongs to God".
A further example of an Islamic theocratic state is Maldives; in 2008, Maldives adopted a new constitution that states, inter alia, in order to be a citizen of Maldives, one has to profess the religion of Islam (Article 9(d)) and all laws have to be based on Islam and any law that is contrary to any tenet of Islam cannot be enacted in Maldives (Article 10(b)).
Malaysia’s constitution does not have such provisions, hence I am baffled by the attempts of certain quarters who maintain that Malaysia is an Islamic state. A year after Independence, on 1 May 1958, then–Prime Minister Tunku Abdul Rahman clarified this in the Legislative Council, saying, “I would like to make it clear that this country is not an Islamic state as it is generally understood. We merely provide that Islam shall be the official religion of the state.”
Again on his 80th Birthday, the Tunku reiterated that “the country has a multi-racial population with various beliefs. Malaysia must continue as a secular state with Islam as the official religion”.
Malaysia is a fully functional secular-based constitutional monarchy with Islam as the religion of the Federation. In coming to this assertion, I am aided by the decision of the Supreme Court of Malaysia in the case of Che Omar bin Che Soh v Public Prosecutor (1988), 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”.
Secular laws for a multi-religious country
Malaysia enjoys a sterling tradition as a multi-religious country. For centuries Muslims, Buddhists, Christians, Hindus and others have lived in peace and harmony. However, disputes over the usage of the term “Allah” by Christians to refer to God in the Bahasa Malaysia version of their Bibles and the confiscation of Bahasa Malaysia Bibles in Selangor have indeed put a strain on the strong and durable relationships between the various religious groups in Malaysia.
Our criminal laws and criminal justice system is secular and must remain secular because any attempt to change this would be tantamount to dismembering the basic structure of our constitution. The doctrine of basic structure finds its origins in the Indian Supreme Court decision in the case of Keshvanand Bharti v State of Kerala (1973). The Indian Supreme Court “struck a bridle path by holding that in the exercise of the power conferred by Art 368 (the article that lays down the procedure for amending the Indian Constitution), the Parliament cannot amend the Constitution so as to damage or destroy the basic structure of the Constitution”. Employing the sagacious logic of the Indian Supreme Court, I would argue that the Federal parliament or any State Legislature cannot pass any law that will alter the basic structure of our FC. The Federal Court must also be ready to exercise its powers as the defender of the FC and unwind any attempt to alter the basic structure of our country.
The administration of the criminal justice system and the powers to enactment criminal laws is clearly the purview of the Federal Government (List I, 9th Schedule of the FC). Part 4 (e)(ii) of List 1, 9th Schedule states that:
“Civil and criminal law and procedure and the administration of justice, including –
(e) subject to paragraph (ii), the following:
(i) contract; partnership, agency and other special contracts; master and servant; inns and inn-keepers; actionable wrongs; property and its transfer and hypothecation, except land; bona vacantia; equity and trusts; marriage, divorce and legitimacy; married women’s property and status; interpretation of federal law; negotiable instruments; statutory declarations; arbitration; mercantile law; registration of businesses and business names; age of majority; infants and minors; adoption; succession, testate and intestate; probate and letters of administration; bankruptcy and insolvency; oaths and affirmations; limitation; reciprocal enforcement of judgments and orders; the law of evidence;
(ii) the matters mentioned in paragraph (i) do not include Islamic personal law relating to marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law, gifts or succession, testate and intestate.”
Hence no state can pass any criminal laws because the constitution does not allow it even if it is a set of Islamic criminal laws and there must always be uniformity of laws. Article 75 of the FC unambiguously states that in the event there is any conflict between a federal and state law, federal law will prevail.
Hudud is also inconstant with Article 8 of the FC, the equality article, because we cannot have Muslims subjected to one form of punishment and non-Muslims subject to another form of punishment. In the case of hudud, those convicted of theft will have their limbs amputated but under our present, secular, criminal justice system, those convicted of theft will have to serve a custodial sentence.
Furthermore, how will the authorities seek to investigate and charge a suspect when there are two sets of criminal laws when the assailant is a Muslim and the victim a non-Muslim or vice versa? Non-Muslims by law do not have to appear before any Shariah court because it has no jurisdictions over non-Muslims. These sticky jurisdictional issues must be also factored into consideration to avoid a repeat the legal imbroglio that has followed the amendment to Article 121 of the FC.
While some have argued that hudud an entity of Islam and should hence come under the State’s List (List II, 9th Schedule), it is important to note that the State’s List grants powers to State Legislatures to enact laws: “1. Except with respect to the Federal territories of Kuala Lumpur, Labuan and Putrajaya, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs; Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques or any Islamic public place of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organisation and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law; the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom.” Hence, there is no provision for any enactment of criminal laws, whether Islamic or otherwise, by any state legislature because the administration of the criminal justice system is part of the Federal List.
Conclusion
I have no intention of wading into the beliefs of any religion – every religion possess its own system of laws in varying degrees – but as a matter of principle and to safeguard the supremacy and integrity of the Federal Constitution, we must strive to defend our secular nature.
Any form of theocratic criminal law is anathema to our long-standing tradition of religious harmony given the significant number of issues that already seek to divide us, and to further divide us on the basis of religion will be the most painful of all. I would dare say that an unbridled push for hudud may even lead to the balkanisation of Malaysia on the basis of religious lines.
All politicians must think and act as Malaysians, with the welfare of all Malaysians on their mind and oppose any attempt to enact hudud laws. I am proud that my party has made a clear and unequivocal stand on the matter. We are not opposed to any religion but we are compelled to defend the integrity of the Federal Constitution and our diverse way of life. It also does not augur well for the resounding minority in this country if the majority imposes their way on life on them, whether directly or indirectly. – April 30, 2014.
* Ivanpal Singh Grewal is the executive director of SEDAR Institute and a member of the Youth Central Committee, Parti Gerakan Rakyat Malaysia.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.
PAS penentu masa depan Pakatan Rakyat?
Sejak penubuhannya pada 1951, PAS tidak pernah putus asa dalam perjuangan politiknya. Ramai pemimpinnya menjadi mangsa kezaliman pemerintah Perikatan dan kemudiannya Barisan Nasional.
Namun, selepas setiap ketika kezaliman dan kekejaman dirasai, seolah-olah ada pemimpin PAS yang lupa dengan apa yang pimpinan Umno lakukan terhadap parti mereka.
Tetapi ramai lagi ahli-ahli PAS yang tidak lupa dengan kelicikan politik Umno.
1960: Menyokong ISA, menjadi mangsa ISA
Selepas darurat anti-komunis ditamatkan pada 1960, kerajaan Malaya pimpinan Tunku Abdul Rahman merasakan masih perlu ada undang-undang untuk membasmi kegiatan komunis yang dianggap masih berserpihan.
Tunku berjaya memujuk parti pembangkang yang terbesar pada masa itu, PAS, dengan menjanjikan bahawa Akta Keselamatan Dalam Negeri (ISA) hanya akan digunakan terhadap komunis sahaja dan tidak akan disalahgunakan terhadap pembangkang atau mana-mana suara sah yang membantah kerajaan. PAS yang memang anti-komunis dengan mudah mempercayai janji Umno. Namun, dalam masa yang singkat sahaja, ISA digunakan terhadap pemimpin pembangkang termasuk Presiden PAS, Dr Burhanuddin Al-Helmy.
1973: Menyertai BN, habis madu sepah dibuang
Selepas pergaduhan kaum 13 Mei 1969, pemimpin Umno ketika itu Tun Razak Hussein memujuk PAS menyertai gabungan pemerintah yang baru iaitu Barisan Nasional atas asalan mahu mewujudkan era baru perpaduan melalui proses pembangunan negara. Walaupun ramai ahli PAS sedar sikap dan pendirian Umno, pimpinan PAS masih mahu duduk bersama dengan Umno dalam saf yang baru. Maka muktamar PAS pada awal 1973 meluluskan usul menyertai BN.
BN menang besar dalam PRU 1974. Pemimpin PAS, Asri Haji Muda mendapat habuan menjadi menteri di peringkat pusat manakala pimpinan lain dilantik menjadi timbalan menteri dan jawatan-jawatan lain.
Sewaktu zaman kegemilangan BN itu, tiada siapa di dalam kerajaan yang mahu menubuhkan negara Islam atau melaksanakan hudud. Pada masa itu juga hanya tinggal DAP dan Parti Sosialis Rakyat Malaya (PSRM) sebagai pembangkang yang serius.
Selepas Hussein Onn menjadi perdana menteri, masalah dalaman PAS di kubu kuatnya di Kelantan dijadikan isu untuk merampas kuasa. PAS dipecat daripada BN dan ia hilang kuasa di Kelantan dalam pilihan raya negeri dan kalah teruk dalam PRU 1978.
1982: Kepimpinan ulama, tanpa kemenangan pilihan raya
Selepas kembali menjadi pembangkang, PAS hanya menang 5 kerusi Parlimen dalam PRU 1982 dan kalah teruk dengan satu kerusi sahaja pada PRU 1986. Walaupun sudah berubah menjadi parti kepimpinan ulama, kemenangan di medan pilihan raya masih kabur untuk PAS. Sebaliknya ia berlumba dengan Umno untuk menonjolkan siapa lebih Islam. Timbul aktiviti dan program untuk menunjuk-nunjuk amalan dan simbol Islam sehingga berlaku isu kafir-mengkafir di antara Umno dan PAS.
1988: Pengharaman Umno, untung PAS kerana Semangat 46
Perebutan kuasa dalaman Umno di antara Dr Mahtahir Mohamad dan Tengku Razaleigh Hamzah pada 1987 antara lain menyebabkan Umno diharamkan oleh mahkamah. Ia kemudian dihidupkan semula oleh puak Dr Mahathir sebagai Umno Baru manakala Ku Li terpaksa menubuhkan Parti Melayu Semangat 46 selepas usahanya mendaftarkan semula Umno ditolak oleh kerajaan.
Semangat 46 mewujudkan dua gabungan, iaitu bersama parti-parti Melayu Islam seperti PAS dan Berjasa (Angkatan Perpaduan Ummah - APU) dan bersama parti-parti pelbagai kaum seperti DAP dan Parti Rakyat Malaysia serta Parti Bersatu Sabah (Gagasan Rakyat).
Melalui kerjasama ini, Semangat 46 bertanding di kebanyakan kerusi Parlimen manakala PAS di peringkat negeri, khususnya di Kelantan. PAS bernasib baik apabila berjaya menawan semula Kelantan dalam PRU 1990 walaupun kedua-dua gabungan pembangkang itu gagal menegejutkan arena politik Malaysia.
Setelah menang kembali di Kelantan, PAS mahu melaksanakan hukum hudud walaupun tidak ada dinyatakan dalam sebarang pendirian bersama sebelum PRU 1990. Oleh kerana perbalahan itu berpanjangan, DAP pada 1995 menarik diri dari Gagasan Rakyat yang merupakan gabungan kembar dengan APU.
1995: Kembalinya kuasa BN, pembangkang berpecah-belah
Dr Mahathir mengukuhkan kedudukan Umno-BN dengan kuasa yang ada serta undang-undang yang lebih zalim. Keadaan itu yang turut diberatkan dengan masalah dalaman pembangkang memudahkan BN menang besar dalam PRU 1995.
Kekuatan Dr Mahathir termasuk menonjolkan keadaan ekonomi yang lebih baik (walaupun kemudiannya didedahkan sebagai ekonomi buih). Kebanyakan rakyat Malaysia juga membuat pilihan atas keputusan ekonomi, dan bukannya emosi atau sentimen kaum dan agama.
1998: Pemecatan Anwar, untung PAS kerana reformasi
Selepas Dr Mahathir memecat timbalannya Anwar Ibrahim daripada Umno, BN dan kerajaan, dan kemudiannya memenjarakan pula, ia membangkitkan kemarahan rakyat, terutamanya orang Melayu dan golongan muda.
Kemarahan rakyat diterjemahkan pula dalam satu kerjasama baru pembangkang atas nama Barisan Alternatif. Dengan menumpang semangat reformasi dan imej Anwar, PAS dalam PRU 1999 menang besar apabila mendapat 27 kerusi Parlimen dan merampas Terengganu serta mengekalkan Kelantan.
2001: Pengisytiharan negara Islam, perpecahan pembangkang (sekali lagi)
Dalam pada pemimpin PAS akhir alaf ke-20, Fadzil Noor mahu merapatkan hubungan antara parti dalam dasar yang mejurus kepada semangat moderat, media milik Umno seperti biasa mencari jalan untuk memecahbelahkan perpaduan parti itu. Selepas Fadzil meninggal dunia, usaha allahyarham hanya tinggal kenangan. Kumpulan yang menguasai PAS selepas itu membawa cita-cita negara Islam yang "keras" berbanding semangat kerjasama dan hak saksama yang dibawakan oleh Fadzil.
DAP sekali lagi keluar daripada gabungan pembangkang. Dalam PRU 2004, PAS hilang 20 kerusi Parlimen yang dimenanginya dahulu, hanya tinggal 7 sahaja. Terengganu pula kembali ke pangkuan Umno selepas PAS kalah teruk di negeri itu.
2008: Kemarahan rakyat, era baru pembangkang
Selepas PRU 2004, pergolakan politik lebih berkisar kepada Umno. Dr Mahathir bersara pada 2003 dan rakyat memberi mandat besar kepada Abdullah Ahmad Badawi kerana janji-janji reformasi. Tetapi apabila semua janji itu dimungkiri dan Abdullah pula dilihat sebagai takut kepada desakan kumpulan pelampau kaum (dan serangan Dr Mahathir), maka rakyat menunjukkan kemarahan mereka terhadap Umno-BN.
Dalam PRU 2008, BN kalah di DUN Kedah, Pulau Pinang, Perak dan Selangor serta mengekalkan Kelantan. Kuasa majoriti dua pertiga BN di Parlimen juga dinafikan oleh pembangkang yang kemudiannya bersetuju membentuk Pakatan Rakyat selepas keputusan PRU ke-12 itu diumumkan.
PAS bagaimanapun duduk di tangga ketiga pembangkang Parlimen selepas PKR yang mendapat 31 kerusi Parlimen dan DAP 28 kerusi Parlimen.
PAS tetap bernasib baik mendapat kerusi menteri besar Perak walaupun ia sebagai parti minoriti kerana perlembagaan negeri hanya membenarkan orang Melayu memegang jawatan itu. DAP mendapat 18 daripada 59 kerusi manakala PKR 7 dan PAS 6. PKR pula tidak mempunyai calon MB yang "layak".
Namun, difahamkan ada kalangan pemimpin PAS tidak puas hati kerana tidak mendapat banyak jawatan. Tambahan pula media milik Umno mula meniupkan api perkauman, selain pemimpin Umno menawarkan kerjasama "kerajaan perpaduan" Umno-PAS di pelbagai peringkat sejak selesai PRU12.
2013: Kecemerlangan Pakatan Rakyat, tsunami politik baru
Walaupun media kawalan Umno memainkan isu perkauman dan sering mencabar PAS agar melawan Pakatan, ia tidak dipedulikan oleh ahli dan penyokong parti. Usaha perkauman Umno ternyata gagal. Malah, semangat mahukan perubahan semakin ketara, khususnya di kalangan kaum-kaum bukan Melayu.
Hasilnya dalam PRU13 pada 2013, Pakatan mencatatkan kemenangan besar dari segi peratus pengundian di mana ia mendapat 51% undi! Oleh kerana sistem persempadanan semula adalah tidak adil, maka BN terus menguasai kerusi Parlimen dan DUN.
Bagi PAS pula, ia adalah prestasi yang tidak memuaskan. PAS gagal mengekalkan kuasa di Kedah kerana kelemahan pentadbiran dan hilang kerusi Parlimen dengan mengekalkan 21 sahaja.
2014: Hasutan Umno, mencabar PAS melaksanakan hudud walau Umno sendiri tak berminat
Selepas itu semakin kuat hasutan Umno melalui pelbagai cara. Sehinggakan Umno berani mencabar PAS agar melaksanakan hudud sedangkan Umno sendiri tidak berminat untuk melaksanakannya.
Buat masa ini, itulah yang sedang berlaku. Umno melalui pelbagai media yang dikuasainya terus mengejek, menguji, mengusik, menyindir dan mencabar PAS. Sejak 1960, Umno mempermainkan PAS, dan agak berjaya juga permainan politik Umno kerana Umno yang sering "menang" dengan taktik kotornya itu.
Seperti yang pernah dijelaskan oleh pemimpin veteran DAP, Lim Kit Siang, isu hudud dilihat dalam konteks isu politik dan bukannya hukum agama - tidak akan memberi kemenangan kepada PAS dan Pakatan Rakyat yang mahu menjadikan Malaysia bersih dari rasuah, bebas dari kezaliman dan tidak lagi mengamalkan diskriminasi. Sebaliknya, isu hudud bakal memberi kemenangan kepada Umno kerana isu tersebut sudah pun membawa perbalahan sesama Pakatan dan mungkin membawa kepada perpecahan gabungan itu.
Di kalangan rakyat pula, sudah timbul perbalahan atas garisan Islam-bukan Islam dan Melayu-bukan Melayu sedangkan matlamat asal Pakatan ialah menggantikan BN untuk menjadi kerajaan yang lebih adil, saksama dan telus di mana rakyat menjadi tonggak, dan bukannya pemimpin dan kroni.
Malah, jika diteliti, apabila isu-isu agama dibangkitkan dalam pilihanraya, ia memberi kesan buruk kepada parti-parti pembangkang. Hanya apabila isu-isu bersama dibangkitkan - ekonomi, reformasi pentadbiran, hak rakyat di peringkat tempatan serta pendedahan kelamahan dan kezaliman Umno-BN - ia menjamin kemenangan pembangkang.
Ini terbukti dalam PRU 1990, 1999, 2008 dan 2013. Malah keputusan 1990, 1999 dan 2008 banyak menguntungkan PAS secara relatif. Terpulang kepada PAS untuk menilai sendiri apa yang Umno lakukan kepadanya sejak lebih 50 tahun lalu yang kesemuanya memberi untung kepada Umno semata-mata, walaupun ada sedikit cebis habuan kepada segelintir pemimpin PAS.
Jika Pakatan hancur, maka Umno yang semakin angkuh sekarang akan kembali berkuasa sepenuhnya. Segala harapan untuk perubahan yang diharapkan sejak alaf baru akan lenyap sama sekali.
Dan pada masa yang sama, hudud tetap tidak akan dilaksanakan oleh Umno. – 30 April, 2014.
* Ini adalah pendapat peribadi penulis dan tidak semestinya mewakili pandangan The Malaysian Insider.
DBKL ruled wrong to pull down Bar Council banners
Malaysiakini
As published in Malaysiakini on 29 Apr 2014.
The
Court of Appeal today upheld the High Court decision that Kuala Lumpur
City Hall (DBKL) trespassed and acted illegally in pulling down banners
put up by the Bar Council.
The banners were put up at the Bar Council's Jalan Lebuh Pasar premises on Human Rights Day seven years ago.
The
three-member panel led by Justice Abdul Wahab Patail, also upheld the
RM12,000 general damages and the RM320 special damages to the Bar
Council for the banners that were taken down.
Besides
Justice Abdul Wahab, the others were Justice Azahar Mohamed and Justice
Hamid Sultan Abu Backer. They did not make any order as to costs.
Lawyers
Ranjit Singh, Razlan Hadri Zulkifli (left) and Jaime Ong appeared for
the Bar Council, while B Thangaraj appeared for DBKL.
The decision by the High Court in Kuala Lumpur last year was seen as a victory for human rights.
Human Rights Day is celebrated around the world on Dec 10 every year. The Bar Council had filed its action against DBKL in 2009.
The
three banners pulled down by DBKL stated ‘Stop the Patronage, Stop the
Rot', ‘As I Believe? Freedom of Expression through Art, Music, Culture
and Conscience...' and ‘Rakyat Hakim Negara' (The people are nation's
judges).
DBKL’s
enforcement men came about noon seven years ago and ordered the banners
be taken down on grounds they were advertisements within the meaning of
a by-law, and hence a licence was required to put them up.
The Bar Council was told that since it did not have a licence for the banners, City Hall could remove them.
Not advertisements
However,
Judicial Commissioner SM Komathy Suppiah, who ruled in favour of the
Bar Council, held that the banners did not fall under the realm of
advertisements.
"By-laws do not apply to non-commercial advertisements," Komathy said in awarding costs to the Bar Council.
“It
would certainly not promote good order and governance within the
jurisdiction of the City Hall and stifle the rights of ordinary citizens
to put up banners that are not commercial in nature."
Komathy
pointed out that following City Hall’s stand, other banners wishing
people during festivals such as Deepavali, or a simple happy birthday
message put up at the house, or the memorable and gigantic 'Buat Kerja'
(Do your job) banner put up during Chief Justice Abdul Hamid Mohamad's
time, would therefore also require licences.
"If
the draftsman had intended to include private, non-commercial
advertisements in the definition, it is reasonable to expect that this
would have been easily stated, clearly and expressly. On any footing,
that has not been done," she had ruled.
The
Human Rights day celebration also saw several arrests of lawyers who
took part in the march. They too won their suits against the police and
the government.
Government Committed To Modernise Malaysian Labour Laws - Najib
KUALA LUMPUR, April 30 (Bernama) -- Prime Minister Datuk Seri Najib Tun Razak said the government was committed to modernising Malaysian labour laws, in line with the needs of a high-income economy.In his Labour Day message posted on his Facebook page, Najib said the government was currently reviewing the Industrial Relations Act 1967 in an effort to allow more efficient resolutions for unfair dismissals and trade disputes.
It was also to ensure effective enforcement of Industrial Court awards; and balance business needs and employees' rights through conciliation.
"The Employment Act 1955 is also under review to ensure the law is in line with emerging needs of local and foreign employers, as well as with the needs of an industrialising nation's workforce.
"Any amendment to the law is aimed at spurring productivity and efficiency, increasing income levels and protecting employees to support local, regional and global competitiveness," said Najib.
Wishing a Happy Labour Day to all workers, the prime minister said the government was committed to improving the nation's workplace for all Malaysians, regardless of rank, status, race and political standing.
He said, historically, Labour Day was a day to commemorate the economic and social achievements of workers, notably the establishment of eight-hour work days and in the past, labour laws were substandard and workers in the 1800s started coming together to push for fairer treatment in the workplace.
As Malaysia transitions from a middle-income economy to a high-income one, Najib said the nation needed the co-operation of all workers from every sector in the economy as the workforce was the backbone of the economy.
"Now is the time for our workers, economy and nation to be united in the effort to achieve a developed nation status by 2020," he noted.
Najib, who is also finance minister, said since the country celebrated the 2013 Labour Day, the unemployment rate of Malaysia had further improved to an all-time low of 3.2 per cent and was still one of the lowest in the world.
"Today, our workers have attained fair pay, decent working hours, safe working conditions and the dignity of a secure retirement," he added.
Malaysia Agreement is ‘invalid’, breaches international conventions, Kuching forum told
A former deputy minister also told the forum to take its case to courts in the United Kingdom as the agreement was brokered by the British.
Robert Pei, a Sarawak-born lawyer now practising in Australia, said the Malaysia Agreement was “void ab initio” - a Latin legal phrase meaning it was not valid from the start - as it was not made in compliance with the established principles and rules of international laws like the Vienna Convention on Law of Treaties (VCLT), the Universal Declaration of Human Rights, 1946 and the United Nations Decolonisation Declaration of 1960 (UNDD).
He said the Malaysia Agreement:
- breached established customary international law that only sovereign states could enter into international treaties;
- violated Article 5 of the UNDD when Britain was in breach of its 1946 Cession treaty with then independent Sarawak Brooke government to restore independence to Sarawak;
- violated Article 7 of the UNDD as there was no referendum;
- violated Article 4 of the UNDD and Article 52 of VCLT, when Britain and Malaya jointly used armed force and repression to coerce the Borneo states into Malaysia under cover of quelling the Brunei Uprising in 1962 and the guerrilla independence war.
“On its very face, the MA63 document displayed a fatal and fundamental flaw.
On the “established principle” of international law that only sovereign states could enter into valid agreements with other states, Pei pointed out the then North Borneo (now Sabah) and Sarawak were not sovereign states on July 9, 1963 when the Malaysia Agreement was signed and therefore had no legal standings to sign the agreement.
“The Malaysia Agreement, registered as an international treaty with the United Nations in 1973, was purportedly made between five 'sovereign states' - the United Kingdom, Malayan Federation, Singapore with North Borneo and Sarawak on July 9, 1963."
He said as North Borneo and Sarawak were still colonies and therefore has no independent international representation, and its top-level administration is under direct control of the metropolitan state that owns the colony, the agreement was actually entered into between only two independent sovereign states, the United Kingdom and Malaya.
Pei then posed the question: “So is the MA63 (Malaysia Agreement 1963) really about the de-colonisation of North Borneo and Sarawak or just a vehicle for re-colonisation by the new colonial master – Malaya?”
He believed in the latter, saying Malaya had “colluded and pre-determined with Britain to form Malaysia to re-colonize the Borneo territories”.
He also said the MA63 was invalid and was abrogated by Singapore's separation and independence from Malaysia in 1965.
“An international treaty could not be changed without the agreement and consent of all the parties.
“The bilateral Singapore Separation agreement between Singapore and Malaya in 1965 was made without active involvement of the other three signatory parties... and it basically changed the concept of Malaysia which should have been re-negotiated.”
The chief of Sabah-based party Star and Bingkor state assemblyman, Datuk Dr Jeffrey Kitingan (pic, left), concurred with Pei's view that what started as “equal partners” had now turned to a “take-over project” by Putrajaya.
Kitingan, who has been critical of the erosion of Sabah and Sarawak rights in the Malaysia Agreement, cited issues like religion, 'Project IC' and the plundering of the states' mineral wealth, failure to implement the Borneosation of the civil service, and the position of indigenous people in favour of the Malays as the “federal play to re-colonise Sabah”.
Hindraf chairman, P. Waythamoorthy, who was specifically invited to share his experience in taking Hindraf's case to the courts in the United Kingdom, said Sabah and Sarawak can also take their right for self-determination to British courts as the British government could be held liable for their current predicament.
“Sue Britain and hold them liable for compelling Sabah and Sarawak into the Malaysia Agreement and seek a declaration in the UK court that the MA63 is null and void,” the former deputy minister said.
Waytha however warned that such a legal fight would be long and “would not be easy”.
Sharing his experience in taking the plight of Malaysian Indians to the British court, Waytha said he is willing to assist nationalists in the two Borneo states to take their case to Britain.
“The states of Borneo have the right to self determination, autonomy.
“Culturally, socially, ethnically they are different from Peninsula Malaysia. They have their right to chart their own course,” he said at the forum that also had former Sabah chief minister and president of SAPP, Datuk Seri Yong Teck Lee, and deputy President of Parti Bansa Dayak Sarawak (PBDS) Baru, Patrick Anek Uren, as speakers.
Waytha (pic, right), who once
inked a Memorandum of Understanding last year with Barisan Nasional to
improve the Indian community, said the British government was not acting
in good faith in creating Malaysia because the “UK government was more
interested in protecting their strategic defence and economic interests
in South-east Asia than the interests of Sabah and Sarawak”.“UK wanted control of the South China Sea and to maintain its military bases. It needed to protect the sea route up to the Philippines.”
The forum, jointly organised by Sarawak Association for Peoples’ Aspiration (SAPA) and Borneo Heritage Foundation of Sabah (BHF) which Kitingan heads, had some 200 people packed in the conference hall of a local hotel. – April 28, 2014.
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