Najib: Interfaith disputes in civil marriages to be resolved in civil court

The cabinet has agreed to table amendments to the law to ensure interfaith disputes involving civil marriages be resolved in civil court, Prime Minister Najib Abdul Razak said today.

He said the amendment to the Law Reform (Marriage and Divorce) Act 1976 will be tabled in the next parliamentary sitting in October.

“One issue that is controversial and has courted all sorts of reaction from society is the problem of conversion, especially when a divorce takes place and one spouse has converted to Islam,” said Najib at the National Women's Day celebration in Putrajaya today.

“Cases like this arise from time to time with voices demanding that we seek a way out.”

He said there were three underlying principles to the amendment, the first being that any issues related to divorce in civil marriages be resolved in civil court.

This would ensure that issues such as child custody and child support were handled fairly, he said.

The second principle is that it would allow couples a chance to resolve their marriage dispute, and let them carry on with their lives and even re-marry, in the case of non-Muslims, Najib said.

“Thirdly, the conflict between the civil and syariah court arises when one spouse converts to Islam. (This amendment) will resolve the lacuna which exists,” he said.

Najib said the Home Ministry will table the amendment bill in the Dewan Rakyat.

Also present were Minister in the Prime Minister Department Azalina Othman Said and Women, Family and Community Development Minister Rohani Abdul Karim.

At a press conference later, Rohani said Azalina, who is the de facto law minister, will be handling the amendments.

She said the cabinet did not discuss in detail how to resolve ongoing interfaith custody cases, but added that a task force will be set up to address the matter.

The cabinet had decided in 2009 that a child must be raised in the faith professed by both parents at the time of the marriage.

The decision was made following news that M Indira Ghandi’s estranged husband, K Patmanathan aka Muhammad Ridzuan Abdullah, had converted their three children to Islam without her consent.

However, the Conference of Rulers later that year put the brakes on the issue and the proposed amendments were never tabled in Parliament.

Early this year, another cabinet committee was set up to resolve the outstanding issue of unilateral conversions.

Caning for Immigration staff bringing in illegals

Government will take the matter to Parliament if the Immigration Act needs amendment, says home minister.

FMT

PUTRAJAYA: After suggesting mandatory caning for agents found guilty of bringing in illegals, the Home Ministry wants the same for immigration officers involved in such activities.

Home Minister Dr Ahmad Zahid Hamidi said discussions towards implementing the punishment would begin this week involving the ministry’s legal adviser, Immigration Department and attorney-general’s chambers.

“We want to propose (mandatory caning) to the government after the discussions because I think jail and fine are insufficient as deterrents.

“We will take the matter to Parliament if the Immigration Act needs amendment, or we will just enter a clause on the punishment to existing regulations.

“Although collusions involving Immigration Department personnel and agents of foreign workers were isolated cases, the proposal was necessary to protect the department’s good name.

“It is better to be a bit embarrassed now rather than be humiliated later, on matters of eradication of illegal workers,” he told a media conference after attending the ‘Immigration Day’ celebration here today.

Ahmad Zahid said the punishment would help in efforts to wipe out bad elements who tarnished the department’s image and simultaneously, reduce the possibility of incidents such as the flash floods in Cameron Highlands, Pahang, recently.

“I focus on the Immigration Department because according to the anti-corruption report tabled recently by the Malaysian Anti-Corruption Commission to the Cabinet, the department is at the top among 10 agencies and departments,” he said, adding that the police were also included in the list.

However, Ahmad Zahid noted that behind the negative perception, the Immigration Department, via its enforcement division, had succeeded in reducing illegal foreign workers.

During the ceremony, the minister also launched a RM10 border pass which was valid for a year to enter Malaysia/Thailand, to replace the normal A4 size printed document for Malaysians who have stayed more than a year in Kedah, Kelantan, Perlis and Hulu Perak district.

– BERNAMA

White Paper to combat Islamic State threat passed by Parliament

Parliament today approved the White Paper on combating the threat posed by Islamic State, with a promise to enact a new law to help prevent such threats in future, Bernama reported.

Winding up the debate on the motion this evening, Home Minister Datuk Seri Ahmad Zahid Hamid said that the proposed Anti-Terrorism Act would stress on prevention, in addition to eradication of the existing threat.

"I also want to give an assurance that the government will not follow the laws of other nations to create an anti-terrorism act, although in reality six nations have drawn up such an act," he said.

Dewan Rakyat Speaker Tan Sri Pandikar Amin Mulia then approved the motion which was tabled by Prime Minister Datuk Seri Najib Razak, after receiving more ayes than nays.

According to Bernama, six Members of Parliament, three each from the Barisan Nasional (BN) and three from the opposition, debated the motion on the White Paper which explained the danger the Islamic State posed and the level of threat to national security.

The prime minister had informed Parliament that the new law to eradicate the involvement of Malaysians in militancy and terrorism, would be tabled at the next Dewan Rakyat sitting.

In stressing that Malaysia is committed to tackle the threat of terrorism with the international community, Najib said such cooperation will contribute to strenghtening national security.

"The involvement of Malaysians in militant activities in the name of Islam have tarnished the country's image and affected the purity of Islam.

"All citizens, regardless of race, religion and political leanings have to reject extreme ideologies and have confidence that the wasatiyyah or moderation concept is the best way to ensure the nation's peace and harmony," he said.

The motion received the thumbs up from opposition MPs as well, led by opposition leader Datuk Seri Anwar Ibrahim (PKR-Permatang Pauh).

The defacto PKR chief said the new law must be firm in helping the government to tackle the problems of terrorism, and not be used for political gain.

He also urged the government to explain militant activities more closely, especially on Islamic State.

As of November 13 this year, 39 Malaysians have been identified to be part of Isis in Syria and Iraq while another 40 has been arrested by the police, including those who had just returned from Syria.

Although 19 has been released due to lack of evidence, the government has imposed restrictions on them travelling overseas and they are currently being monitored by the police.

The Malaysians fighting alongside Isis forces in the Middle East were influenced to take up the struggle via social media, intelligence sources had said previously.

Some, like former Kedah PAS Youth information chief Lotfi Ariffin who was killed in Syria, had not only posted about his activities with the militants on Facebook, but had issued call-to-action messages, too.

To date, five Malaysians have been killed in action in the Middle East. – November 26, 2014.

- See more at: http://www.themalaysianinsider.com/malaysia/article/white-paper-to-combat-islamic-state-threat-passed-by-parliament#sthash.vyaWpQL6.dpuf

Call for Parliamentary Select Committee to mobilise support for moderation and draft laws and measures to deal with the Islamic State threat

By Lim Kit Siang Blog

DAP welcomes the White Paper “Ke Arah Menangani Ancaman Kumpulan Islamic State” and the Prime Minister’s motion seeking Parliament’s support with Government’s efforts to deal with the Islamic State threat and to “menyeru semua lapisan rakyat Malaysia mempergiatkan usaha dan komitmen mereka untuk bersama-sama menyokong Kerajaan menangani ancaman berkenaan”.

Before I proceed further, let me state that the White Paper on the Islamic State is one of the three unfinished business which Najib should have completed in the present meeting of Parliament which ends tomorrow.

While welcoming the White Paper on Islamic State, I want to place on record the people’s disappointment and disapproval that the Prime Minister has refused to complete the other two unfinished business before Parliament adjourns tomorrow, viz:

Firstly, the Report of the Royal Commission of Illegal Immigrants in Sabah (RCIIIS), which is meant to end once-and-for-all the 40-year problem of illegal immigrants in Sabah which had multiplied 15 to 19 times in four decades from 100,000 in the seventies to 1.5 million to 1.9 million at present.

The Report of the RCIIIS was presented to the Federal Government on May 14, and the Prime Minister’s failure to present it to Parliament for more than six months and to allow for a full parliamentary debate, can only mean one thing – the complete absence of political will of the Barisan Nasional Federal Government and confirming that the RCI was just a Barisan Nasional ruse to secure votes from the Sabah voters for the 13GE in May last year.

The establishment of the Joseph Pairin Kitingan RCIIIS Report Review Committee – with no details as to who are its members, its terms of reference and time frame – is just the latest in a 40-year “merry-go-round” sleight-of-hand to kick the problem of illegal immigrants in Sabah into the distant and indefinite future until the population of illegal immigrants in Sabah exceed the two million mark, completely changing the political demography and socio-economic landscape, reducing native Sabahans into strangers and a minority in their own land.

Twenty-eight years ago in Parliament in 1986, I had warned that if the illegal enfranchisement of illegal immigrants in Sabah continued unimpeded, in a matter of three years, the demographic distribution of the 48 state assembly seats with 21 Kadazan majority seats, 8 Chinese majority seats and 19 Malay majority seats would be so altered and gerrymandered that it could end up as 16 Kadazan majority seats, 2 Chinese majority seats, and 30 Malay/Filipino/Indonesian seats.

The people of Sabah are entitled to know whether the political demography would be further aggravated and worsened in another electoral constituency redelineation and this is one reason why immediate publication and implementation of the Report of the RCIIIS is imperative.

Although tomorrow is the last day of the current budget meeting of Parliament, it is still possible for the Report of the RCIIIS to be presented before Parliament adjourns tomorrow as the RCIIIS Report had been submitted to the Federal Government for six-and-a-half months, and I urge the Prime Minister to issue a directive for the Report of the RCIIIS to be tabled in Parliament tomorrow, followed by a parliamentary debate.

Secondly, a Ministerial statement by the Prime Minister –cum-Finance Minister on the roiling multi-billion ringgit 1MDB scandal and assurance that he is not trying to shut down public and parliamentary query and debate on the latest financial scandal by the threat of legal suit against the DAP MP for PJ Utara, Tony Pua.

In fact, Najib should give a public undertaking that his threat of a legal suit against Tony Pua will not be used to shut down any public questioning of any aspect of 1MDB deals.

On Sunday, the Prime Minister had asked: “Where have we gone wrong?”,

This is one aspect where the Barisan Nasional Government have gone wrong.

I can still remember vividly that when Hussein Onn was the third Prime Minister, he insisted on tabling a White Paper in Parliament in 1979 on the Price Waterhouse Report on the Bank Rakyat scandal, which involved malpractices, mismanagement and misuse of public trust and funds to the tune of RM65 million.

This sum is now chickenfeed, for financial scandals are in the tens of billions of ringgit which do not cause the Prime Minister or Finance Minister (or one who is both) to bat an eyelid!

If Hussein Onn was prepared to table a White Paper on a RM65 million financial scandal, why has Najib refused to submit to parliamentary accountability and to issue a Ministerial statement on the multi-billion ringgit 1MDB scandal?

Again, it is not too late as a Ministerial statement on the 1MDB scandal could be tabled in Parliament tomorrow, and I urge Najib to do so.

Coming back to the subject at hand, the White Paper on the Islamic State threat, Najib is probably the only head of government in the world to have publicly praised the Islamic State (formerly ISIL/ISIS) terrorists, when he exhorted UMNO members on June 24 to emulate what he described as the “brave exploits” of ISIL/ISIS for UMNO to survive.

Although Najib has since denounced Islamic State unambiguously and unconditionally at the UN General Assembly on Sept. 26, it had not been able to completely wipe out the horror of his ill-advised initial praise of Islamic State in June.

The White Paper indicated that the authorities had been tracking the activities of Malaysians suspected of being related to Islamic State of Iraq (ISI) in 2012, and if so, Najib owes Parliament and the nation a proper explanation how he could be so badly advised as to publicly accord praise to ISIL/ISIS terrorists for their “brave exploits” five days before the declaration of the IS caliphate by its leader Abu Bakr al-Baghdadi on June 29, 2014 – showing either poor security intelligence or abysmal judgment by the Prime Minister.

However, when Najib made amends and unambiguously and unconditionally denounced Islamic State when he spoke at the United Nations General Assembly on Sept. 27, 2014, I did not hesitate to immediately commend him for his speech and his call on the global community to defeat violent extremism and religious intolerance.

I had earlier urged Najib to unambiguously and unconditionally denounce Islamic State in his United Nations General Assembly speech for three reasons:

• Firstly, Najib’s laudatory first reference to ISIL/ISIS on June 24, akin to glorification, which sent out a wrong message about Malaysia’s stand against Islamic militants, extremists and terrorists. In fact, former Prime Minister, Tun Mahathir was incensed by Najib’s initial praise for ISIL/ISIS, coming out with a downright condemnation of ISIS on August 16 while making the caustic comment “I do not know if he knew what he was saying, but if Malaysia emulates Isis, this country will not be stable. Malaysia will become a very violent country.”
  
• Secondly, the daily ISIS sadistic and horrific human rights violations, including targeted killings, trafficking, sexual abuse, abductions, forced conversions and beheadings which run contrary to the Global Movement of Moderates and Wasatiyah advocated by Najib to reject all form of violence and extremism, whether political or religious.
  
• Thirdly, as Prime Minister of multi-religious Malaysia, with Islam as the official religion, Najib should speak loud and clear to lead the world, including Islamic nations, to condemn the terrorism and inhumanity of ISIS, not only as an affront and anathema to Islam as a religion of peace but for its crimes against humanity.

It would have been better if Najib’s unqualified condemnation of the Islamic State militants and extremists had been made very much earlier instead of waiting for the UN General Assembly on Sept. 27, some three months after his foolish and ill-advised praise for ISIL/ISIS on June 24, but it was better late than never.

A day before Najib’s speech at the UNGA, an international coalition of Muslim scholars had delivered a withering condemnation of IS by unpicking its doctrine in an open letter and declaring its existence “an offence to Islam”.

More than 120 Sunni imams and academics, including some of the Muslim world’s most respected scholars, signed the 18-page document which outlined 24 separate grounds on which the terror group violated the tenets of Islam.

The letter, addressed to the head of IS, Abu Bakr Al-Baghdadi, was significant not only because of its signatories but also its detailed references to the Koran and other Islamic texts to counter the justifications offered by the extremists for their bloody rampage across a swathe of Syria and Iraq.

The closely-argued document singled out the murders of American journalists James Foley and Steven Sotloff, and British aid worker David Haines (which have since been followed by other atrocious executions, including the French Hervé Gourdel on Sept. 24, Britisher Alan Henning on Oct 3, American Peter Kasig on Nov. 16, as well as Kurds and Syrians) by saying the men were “emissaries” and their killings as “unquestionably forbidden”.

It also took ISIS to task over its countless acts of brutality and massacres under the guise of jihad, or a holy struggle. While acknowledging to Al-Baghdadi that “you and your fighters are fearless” and ready to die for their cause, the scholars stated their actions are “not jihad at all, but rather, warmongering and criminality”.

The documents cited multiple examples of atrocities committed by IS fighters, describing the murder of hundreds of ethnic Yazidis in northern Iraq as “abominable crimes” and describes its attitudes to women and children as morally repugnant.

The letter concluded: “You have misinterpreted Islam into a religion of harshness, brutality, torture and murder. This is a great wrong and an offence to Islam, to Muslims and to the entire world.”

The letter, whose signatories come from Sudan to Iceland and include the grand mufti of Egypt, Sheikh Shawqi Allam, and the mufti of Jerusalem and All Palestine, Sheikh Muhammad Ahmad Hussein, was the latest from leading Muslims around the world condemning IS and its doctrine.

The White Paper said: “Malaysia berdiri teguh bersama masyarakat antarabangsa untuk menentang kumpulan pengganas ini kerana perjuangan IS mencermarkan nama baik Islam dan bertentangan dengan nilai kemanusiaan.”

In fact, the Global Movement of Moderates should be in the forefront of an international campaign to mobilise world opinion against the IS terrorists, as Najib had repeatedly made the clarion call in international fora, including thrice at the United Nations General Assembly, for “moderates of all countries, of all religions, to take back the centre, to reclaim the agenda for peace and pragmatism, and to marginalize the extremists”.

As Najib has repeatedly stated, “the real divide is not between East and West or between the developed and developing worlds or between Muslims, Christians and Jews; it is between moderates and extremists of all religions”.

Unfortunately, the Global Movement of Moderates initiated by Najib is unable to rise to the challenge of the times to mobilise national and international opinion against the violent extremism and religious intolerance in Syria and Iraq as it is desperately fending off attacks from extremists and intolerant right-wing groups in the country for being “seditious” as a result of a “white terror” spree by Najib’s government in the past few months through a sedition dragnet to stifle freedom of speech and legitimate criticism and dissent – which ironically granted immunity and impunity to the extremist and intolerant elements in the country for serious violations of the law.

Najib must align his domestic policies with his international pronouncements or he would forfeit all respect and credibility, whether at home or in the international arena.

Just as Islam is not under siege internationally, it is not under siege in Malaysia, and those who use the name of Islam to justify extremist and intolerant outbursts and actions must be contained, not only internationally, but also nationally.

This was why in my statement immediately after Najib’s speech at the UN General Assembly, I had made two proposals for Najib to align his domestic policies with his international pronouncements on moderation and the Global Movement of Moderates (GMM), namely :

• to end the “white terror” sedition spree in the past weeks through malicious and selective prosecution and investigation under the Sedition Act, drop all Sedition charges, and empower the Global Movement of Moderates to launch national and international initiatives to promote moderation and reject all forms of violence and extremism in the face of the IS threat; and
  
• move a motion when Parliament meets on Oct 7 to condemn in unambiguous and unconditional terms the extremism, violence and barbarism of IS.
  The motion to condemn IS now before the House, but Najib has still to align his domestic policies with his international pronouncements on moderation and the establishment of GMM.
  

In his first speech to the UN General Assembly on 27th Sept. 2010 when he first broached the idea of a Global Movement of Moderate (GMM), to promote international peace and harmony and counter Islamophobia which demonize Islam and offend the one and a half billion adherents of the religion, he praised the group of American Christians who had “worked tirelessly to prevent the threatened burning of the Quran with the compelling argument that it is in fact un-Christian to burn the Quran”.

Najib said at the time that this was a clear example of what can be achieved “when moderates in each faith stand up to the extremists that are trying to hijack the universal value of our religions”.

Yet, Najib was not prepared to come to the forefront to denounce Perkasa President Ibrahim Ali for his threat in January 2013 to burn the Malay-language Bible with the compelling argument that it was un-Islamic to burn the Bible or any other holy books of any religion – not to mention the double standards of his Attorney-General, refusing to prosecute Ibrahim Ali whether under the Sedition Act or other laws while sanctioning sedition prosecutions against Pakatan Rakyat leaders, activists and intellectuals like law lecturer Dr. Azmi Sharom and Ali Abdul Jalil, who had to flee Malaysia and seek asylum and protection in Sweden because of oppression from authorities and gangsters.

In his Aidiladha message, the Prime Minister Datuk Seri Najib Razak reiterated that he would keep faith with the “moderation” pledge he reiterated at the 69th United Nations General Assembly in September this year.

Najib should realize that his wasatiyyah (moderation) campaign of justice, balance and excellence would have no credibility whatsoever unless he is seen as upholding all these principles not only in the international arena but also in his government policies inside the country.

This is why all eyes are on the UMNO General Assembly this week, as all Malaysians, Umno and non-Umno, Malays and non-Malays, are asking the question of “Where have we gone wrong” in promoting wasatiyyah not only under the present Prime Minister but in the 57-year history of the nation that a former Chief Justice (Tun Abdul Hamid Mohamad) could deliver a keynote address (ucaptama) at the National Unity Convention of Malay and Muslim NGOs on Sunday warning that the Malays could suffer a fate similar to Red Indians in the United States unless PAS and UMNO unite to allegedly stop DAP from attaining federal power.

In the first place, DAP had never said or believed that it could attain federal power without being part of a Malay-dominated political coalition.
This is not the only falsehood or fallacy in the thesis of the former Chief Justice, which runs counter to all the three Wasatiyyah principles of justice, balance and excellence.

Is Najib, Deputy Prime Minister and Deputy UMNO President, Tan Sri Muhyiddin Yassin and the UMNO Vice Presidents, Hishammuddin, Zahid and Shafie Apdal admitting that UMNO as a party for the Malays, had failed the Malays after ruling Malaya and then Malaysia for 57 years under six UMNO Prime Ministers to the extent that Malays now risk suffering a fate similar to the Red Indians in the United States – and that this horrible outcome could only be averted and the Malays saved from such a fate if PAS unite with UMNO to save the Malays.

Will Najib and Hishammuddin admit that their respective fathers, Tun Razak and Tun Hussein, had been such failures as the second and third Prime Ministers as to place the Malays in Malaysia under such a risk?

The “Red Indian warning” has been a favourite ploy of Tun Dr. Mahathir. Is Mahathir admitting that he had been such a n abysmal failure as the fourth Prime Minister of Malaysia for 22 years from 1981 to 2003 that he has left the Malays after over two decades of premiership risking the fate of Red Indians in the United States?

We are confronted with the challenge whether we are prepared to be moderates in our own country, which is the real test whether we can be true moderates in the world in a Global Movement of Moderates campaign to lead the battlecry to isolate and marginalize all forms of extremism, intolerance and terrorism.

After governing the nation for 57 years, UMNO should be more and more inclusive and less and less exclusive – but the reverse is taking place, becoming even more exclusive and less inclusive than in the past.

Is UMNO prepared to draw the line in the sand, and the UMNO General Assembly this week demonstrate that UMNO stands solidly for moderation to marginalize extremism, intolerance and bigotry in Malaysia”?

The motion before the House asked for support for government policies and efforts to deal with the threat from the militant Islamic State – “menyokong Kerajaan melaksanakan dasar-dasar dan usaha-usaha yang diperkenalkan menangani ancaman kumpulan militan Islamic State; melulus dan merestui dasar-dasar dan usaha-usaha yang diperkenal oleh Kerajaan untuk menangani ancaman kumpulan militan Islamic State” and “menyeru semua lapisan rakyat Malaysia mempergiatkan usaha dan komitmen mereka untuk bersama-sama menyokong Kerajaan menangani ancaman berkenaan”.

If the battle for moderation, the campaign of the Global Movement for Moderates, is to succeed nationally and internationally, in the face of the threat posed by Islamic State and such-like extremist, intolerant and terrorist organizations, it must be a national effort uniting all Malaysians of all ethnicities and faiths which transcend race, religion or politics.

For this reason, I call for a Parliamentary Select Committee to mobilise support for moderation and draft laws to deal with the Islamic State threat, for the threat by extremist, intolerant and terrorist organizations like Islamic State cannot be countered and won unless it is an all-Malaysian, and not just UMNO or Barisan Nasional, effort – especially at a time when the UMNO/BN Government is only a minority government with minority support from the people of Malaysia.

Such a Parliamentary Select Committee to mobilise support for moderation and to draft laws and measures to deal with the Islamic State threat should be formed before Parliament adjourns till March tomorrow.

[Speech by DAP Parliamentary Leader and MP for Gelang Patah Lim Kit Siang on the Prime Minister’s motion on the White Paper on Islamic State in Parliament on Wednesday, 26th November 2014]

Syariah not a Federal matter

Islamic laws and Islamic matters fall under the jurisdiction of the states.

FMT

KUALA LUMPUR: Gerakan has expressed surprise on a statement by Minister in the Prime Minister’s Department, Jamil Khir Baharom, that the religious authorities in the country, all state bodies, are currently engaged in a discussion to equate the Syariah Court System with the Civil Court System.

“It’s unconstitutional. It is clear that under the Ninth Schedule, List II – State List of the Federal Constitution, Islamic laws and Islamic matters fall under the jurisdiction of the states,” said Baljit Singh who heads Gerakan’s Central Law and Human Rights Bureau.

“The existing linear relationship of Malaysia’s court system and judiciary cannot be altered.”

Baljit pointed out that Syariah Courts are set up under state laws, while civil courts including the High Courts, Court of Appeal and Federal Court are established under the Federal Constitution.

“We can establish a Constitutional Court that exists in countries like Germany and Thailand to deal with matters of high constitutional importance including the conflict of law arising from the overlapping of Syariah and civil law,” said Baljit.

At present, the Federal Court sits as the Constitutional Court.

Under the Federal Constitution, Native and Syariah Courts are inferior courts. Inferior laws, including those passed by the state assemblies, can be ruled invalid to the extent of their inconsistency with the superior law, the Federal Constitution.

Najib called to account for Sedition Act by Commonwealth lawyers

Ahead of the Malaysian Bar's walk to protest the Sedition Act tomorrow, the German Federal Bar has expressed concern over the use of the law in a letter to Datuk Seri Najib Razak, asking the prime minister for his stand on its widespread against the government's critics.

The German Bar's Dr Martin Abend, in a letter dated yesterday, noted that the act had been applied increasingly in Malaysia in the last few months, including against lawyers for voicing their legal opinions.

Abend said that in one particular case, a lawyer’s house was searched and his mobile phone and his laptop seized.

"The German Federal Bar is deeply concerned about these current developments in Malaysia.

"We kindly ask you to inform us if the information available to us is correct and how you view the situation," Abend said in the letter which was posted on the Malaysian Bar's website.

He also urged Najib to ensure that the Sedition Act would not be applied to facts relating to the freedom of expression.

"In accordance with the UN Basic Principles on the Role of Lawyers, lawyers, just like any other citizen, shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights”.

These principles also provide that lawyers must be able to “perform all of their professional functions without intimidation, hindrance, harassment or improper interference".

"Furthermore, “the State must ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference," Martin wrote.

He also called on the prime minister to ensure that the "Walk for Peace and Freedom 2014” scheduled by the Malaysian Bar tomorrow would be allowed to progress peacefully.

Legal associations from other countries have also lent their support to the protest tomorrow.

Bar associations of New Zealand, Australia, Sri Lanka and Nepal, and the Commonwealth Lawyers Association sent letters which were posted to the Malaysian Bar's website.

The UK Law Society also wrote a letter to Najib, expressing concern over continued use of the colonial-era law.

Its president Andrew Caplen said they were concerned about the use of the act to against lawyers in the course of conducting of their legitimate professional duties and the effect of the act on freedom of expression in Malaysia.

Caplen in his letter dated October 2, called on the Malaysian government to cease any investigations and prosecution's under the act and to uphold its commitment of 2012 to review and repeal the act.

Caplen also noted the sedition cases brought against lawyer Edmund Bon and the late Karpal Singh, also a lawyer.

Law professors Dr Azmi Sharom and Dr Abdul Aziz Bari are also among those who have come under the Sedition Act.‎

The Korean Bar Association also noted in a statement that there were continuous cases of persons being unreasonably arrested, detained and prosecuted for voicing their news and opinions on matters related to law and the legal system.

As such, it called on the government to cease its disproportionate use of police powers and abuse of discretion under the Sedition Act.

The lawyers' march to protest the act will begin at Padang Merbok and move to the Parliament building at 10.30am tomorrow. – October 15, 2014.

- See more at: http://www.themalaysianinsider.com/malaysia/article/najib-called-to-account-for-sedition-act-as-commonwealth-lawyers-show-suppo#sthash.0BJmHVQz.dpuf

Keep it colour blind

The Star

Legally Speaking by Roger Tan

As published in ©The Star on 17 Aug 2014.

Our judges, regardless of their race and religion, must always be mindful that they have taken an oath to preserve, protect and defend our Constitution not for some but for all Malaysians.

I HAVE wanted to write this for some time – my tribute to the late Sultan Azlan Shah who passed away on May 28, 2014. Not so much because he had been reading my column, but rather on two occasions which I had the honour of meeting him, he had encouraged me to keep on writing.

I was also troubled that when he passed away, he had not been accorded the appropriate recognition by leaders of our legal profession of his contribution to the administration of justice in this country.

This could be due to some differences with the Sultan’s decision not to call for fresh state elections when Pakatan Rakyat lost the majority control of the Perak state assembly in February, 2009. I had at that time written extensively that the Sultan’s decision was constitutionally correct.

Interestingly, the Federal Court’s judgment which subsequently endorsed the correctness of his royal decision is now being relied upon by his then most vociferous and sometimes insolent critics in Pakatan Rakyat to justify replacement of the embattled Selangor Mentri Besar, Tan Sri Khalid Ibrahim without the need for a state assembly sitting or the dissolution of the assembly.

Sultan Azlan belonged to the generation of great Malaysian jurists including the likes of Tun Mohamed Suffian Hashim and Tan Sri Eusoffe Abdoolcader. He was, after all, the youngest ever appointed High Court Judge and Lord President.

Not many knew that whenever the Malaysian Bar stood up for the independence of the judiciary, he was always there with and for us.

I still remember the keynote address he gave at the 14th Malaysian Law Conference on October 29, 2007; of which I was the organising chairman.

The conference was held one month after 2,000 or so lawyers walked for justice from the Palace of Justice to the Prime Minister’s office to hand over a memorandum asking the government to set up a royal commission of inquiry to investigate the V.K. Lingam video tape which implicated the then chief justice, Tun Ahmad Fairuz Sheikh Abdul Halim.

At that time, the Malaysian Bar was aware that Tun Fairuz was said to have asked for an extension of an additional six months, allowed under the Federal Constitution, when he turned 66 on Nov 1, 2007 – the mandatory retirement age for judges. Needless to say, it was an open knowledge then that the Bar was dead against this. When my committee and I had an audience with Sultan Azlan inviting him to deliver the keynote address, this was made known to him.

In an obvious act of retaliation, I received a letter from the judiciary a few days before the conference that judges would not be attending the conference due to “unforeseen circumstances”.

A High Court judge from Ipoh who was supposed to deliver his paper had to pull out in the last minute. Nevertheless, I am grateful that the then Industrial Court President, Datuk Umi Kalthum Abdul Majid sent most of the Industrial Court chairmen to participate in the conference.

As a result, only a handful of senior judges turned up at the opening of the conference and also the dinner later in the night hosted by then Prime Minister, Datuk Seri Abdullah Ahmad Badawi. One senior judge who was noticeably present was the then President of Court of Appeal, Datuk Abdul Hamid Mohamad who subsequently became the chief justice. He appeared to be a keen supporter of the Bar at a time when the relationship between the Bar and the judiciary could be said to have reached its lowest ebb.

On my part, I accorded him every courtesy and opportunity being the most senior judge present to be seated close to Sultan Azlan and the Prime Minister during the photography sessions and at the dinner.

He did not appear to me to be upset with the Bar Council and I was appreciative that he had turned up with the full knowledge, of course, that he might just succeed Tun Fairuz if the latter did not get the extension. Hence, his recent criticisms of the Bar Council came rather as a surprise to me.

In his keynote address, Sultan Azlan broke tradition and expressed his sadness over the state of our judiciary then. He also called for judicial reforms.

For the sake of posterity, the following important excerpts of his speech ought to be reproduced in which he said:

“In matters concerning the judiciary, it is the public perception of the judiciary that ultimately matters. A judiciary loses its value and service to the community if there is no public confidence in its decision-making.

“Sadly, I must acknowledge that there has been some disquiet about our judiciary over the past few years and in the more recent past. In 2004, I had stated that it grieved me, having been a member of the judiciary, whenever I heard allegations against the judiciary and the erosion of public confidence in the judiciary.

“I am driven nostalgically to look back to a time when our judiciary was the pride of the region, and our neighbours spoke admiringly of our legal system. We were then second to none and the judgments of our courts were quoted confidently in other common law jurisdictions. As Tun Suffian, a former Lord President of the then Federal Court, said of the local judges who took over from the expatriate judges after Merdeka that the transformation was without ‘any reduction in standards’.

“There is no reason why judges with the assured security of tenure they enjoy under the Constitution should not discharge their duties impartially, confidently and competently.

“Countries such as Singapore and Hong Kong, who have a similar legal system and who share similar laws, and whose judges and lawyers are trained as ours, are ranked in these surveys as amongst the best in the world (Hong Kong is placed first and Singapore ranks as fourth in the world).

“There is one further important point that I feel compelled to say. This deals with a judge’s quality in decision-making. We in Malaysia live in a multi-cultural and multi-religious society. Our founding fathers accommodated this diversity into our Constitution that is reflected in the social contract, and saw this diversity as strength.

“Judges in Malaysia must be ever mindful that they are appointed judges for all Malaysians. They must be sensitive to the feelings of all parties, irrespective of race, religion or creed, and be careful not to bring a predisposed mind to an issue before them that is capable of being misconstrued by the watching public or segments of them.

“I am reminded of the proud accolade of the late Tun Suffian in his Braddel Memorial Lecture in 1982, when speaking of the Malaysian judiciary to a Singapore audience he said: ‘In a multi-racial and multi religious society like yours and mine, while we judges cannot help being Malay or Chinese or Indian; or being Muslim or Buddhist or Hindu or whatever, we strive not to be too identified with any particular race or religion – so that nobody reading our judgment with our name deleted could with confidence identify our race or religion, and so that the various communities, especially minority communities, are assured that we will not allow their rights to be trampled underfoot.’ ”

No doubt, he received a standing ovation for his landmark speech. After the conference, the palace called up the Bar Council Secretariat for more information regarding leaders of the Bar, and he was kind enough to confer one of them with a Datukship.

Indeed, our judges, especially those at the apex court, regardless of their race and religion, must always be mindful that they have taken an oath to preserve, protect and defend our Constitution not for some but for all Malaysians.

If their decisions especially on sensitive racial and religious issues are predictable because of their race and religion, then they have failed miserably to measure up to the standards set by Sultan Azlan and Tun Suffian. If that is so, then I am afraid issue of race has become the sine qua non for appointing a judge in this country.

In this respect, I have written that judicial diversity and meritocracy should go hand in hand, and a judiciary that does not reflect society’s diversity will ultimately lose the confidence of that society. (See Judicial diversity creates confidence, The Sunday Star, Nov 13, 2011)

Singapore just celebrated her 49th national day and they have already overtaken us in this regard by leaps and bounds as both their Attorney-General and Chief Justice are Singaporean Indians – Vijaya Kumar Rajah, 57, and Sundaresh Menon, 52.

But sadly in Malaysia, it is an unthinkable thing for any qualified non-Malay even of exceptional capability to be appointed as the Attorney-General or the Chief Justice.

Of course, words are easy compared to putting them into practice. But it remains my fervent hope that the above wise words of Sultan Azlan will be a constant reminder to all our judges whenever they dispense justice in our beloved land.

Similarly, our judges who sit at the apex court should never abdicate from their powerful position as the guardians of our Constitution whenever there is any infringement of constitutional rights in any segment of our society.

They, as Abdoolcader once pointed out, must not just stand there and fold their arms and do nothing; otherwise they might as well “hang their heads in sorrow and perhaps even in mortification in not being able to at least entertain for consideration on its merits any legitimate complaint of a public grievance or alleged unconstitutional conduct.”

> The writer was the organising chairman of the 14th Malaysian Law Conference.

Many unaware whistleblowers are protected by law

The New Straits Times

KUALA LUMPUR: Malaysians are still unaware that they will receive protection under the Whistleblower Protection Act 2010 for disclosing any improper conduct of their companies and agencies.

Malaysian Anti-Corruption Commission (MACC) deputy chief commissioner (prevention) Datuk Mustafar Ali said their survey conducted last year involving 10,000 Malaysians revealed that half of them did not realise the existence of the law, which had been enforced since 2010.

“The act was designed to combat corruption and other wrongdoings by encouraging and facilitating disclosures of improper conduct in the public and private sector. It will protect and cover any employee of the public or private sector who disclose wrongdoing.”

Mustafar said the MACC had received 5,000 tip-offs relating to corruption and other wrongdoings annually since the implementation of the act.

“A whistleblower will not be subjected to any civil action or criminal liability and no administrative process can be taken against them.

“However, only 39 people have been protected under this act since 2010,” he said, adding that those protected under the act would not have their identity exposed.

He said the gathering of evidence would be conducted by the commission’s investigation unit to ensure their identity was not compromised.

Mustafar was speaking after officiating the “Whistleblowing – Your Right, Our Commitment” forum at the Malaysia Anti-Corruption Academy here yesterday. The forum aimed to explore the platforms available to combat corruption.

Among the panellists were MACC deputy public prosecutor, Anthony Kevin Morais, Institute for Democracy and Economic Affairs (IDEAS) chief executive officer, Wan Saiful Wan Jan, and Malaysian Bar president, Christopher Leong.

Some 150 participants from non-governmental organisations, professionals, lawyers and students, attended the half-day forum.

A disturbing dichotomy

The Star
Reflecting On The Law 
by SHAD SALEEM FARUQI

We need to cool things down a bit to resolve the sad saga of legal conflict due to religious issues.

THE domestic discord between a fractious couple (which between it made 35 police reports against each other during the last two years) has metamorphosed into a national, religious and racial controversy that has besmirched the name of many public institutions including the courts and the police.

We need to cool things down a little bit, see issues with some detachment and accept that in every country where legal pluralism is allowed, some painful conflicts of jurisdiction are unavoidable. The law in every land is a maze, not a motorway. Its multiplicity, diversity and conflicting hierarchies create a thicket that is never easy to traverse.

In our federal system, federal laws clash with state laws and the legal scene is quite turbid.

At the state level, syariah enactments of one state conflict with enactments of another state and reciprocal enforcement of each others’ judgment is an unfulfilled dream. Within the boundaries of a state, especially in Negeri Sembilan, Sabah and Sarawak, competition exists between custom and religion.

In Sabah and Sarawak, the rivalry between Native courts and Syariah courts is intense but is kept diplomatically discrete.

The most painful, unedifying and politically charged disputes are between civil and Syariah courts. They jar our landscape now and then and disturb our national harmony. What is not well known is that the clashes are not always between Muslims and non-Muslims.

Sometimes it is Muslims challenging the jurisdiction of the Syariah courts. For example in Latifah Mat Zin v Rosmawati Sharibun (2007) there was a dispute between the daughters of the deceased and his widow over the joint account of the husband and the wife. At contention was whether the civil High Court or the Syariah court has jurisdiction?

Occasionally there are objections to Syariah courts assuming jurisdiction on marriages contracted abroad between Muslims under foreign law.

Relating to non-Muslims, the most heart-wrenching dispute is about the religion of a deceased when there is information that prior to his death he had secretly converted to Islam.

Another tragic and intractable issue is the custody of children when one party to a non-Muslim marriage converts to Islam and opens the door to a jurisdictional clash.

This is what happened in the Deepa-Izwan case. The root cause of the jurisdictional conflict is Article 121(1A) of the Federal Constitution which states that the civil High Courts and inferior courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.

Another problem is sections 3 and 51(1) of the Law Reform (Marriage and Divorce) Act (LRA) 1976. Section 3 states that the Act shall not apply to a Muslim. Section 51(1) states that if one party to a civil marriage has converted to Islam, the other party may petition the civil court for divorce.

Shockingly, this means that the converting party has no right to apply for dissolution of his marriage that was contracted under civil law.

As Izwan was not subject to the LRA, he rightly went to the Syariah court for dissolution and ancilliary relief – much to the detriment of Deepa whose hard-won civil court order for custody of her two children was short-lived when the ex-spouse in defiance of the High Court order forcibly removed one child from her custody.

This was not the first case of its sort but it has left a deep impact on our conscience. We need urgently to repair our frayed social fabric damaged by such disputes. My suggestions are tentative, subjective and open to revision.

First, the constitutional scheme of things in 1957, that the Syariah courts shall have jurisdiction only over persons professing the religion of Islam, should be reiterated.

Second, the Muslim volksgeist that their religious law should apply to them should, however, be respected. The radical solution that legal dualism should be abolished and there should be one uniform family law for all citizens is untenable. People have a right to live by their personal laws.

Even countries like the UK allow the Jews to apply their personal laws in defined fields.

Third, the federal government should engage with moderates of all communities and resist the cynical (and hitherto successful) effort to close down all discussion on “sensitive issues”.

Fourth, the country as well as our official religion suffer disrepute when Islam is instrumentalised by some converts to gain quickie divorces and obtain easy custody and guardianship over their children to the detriment of the non-converting spouse.

Conversion is their right but they must respect the Federal Court ruling in Subashini a/p Rajasingam v Saravanana (2008) that a non-Muslim marriage does not dissolve automatically upon one party’s conversion to Islam. The civil courts continue to have jurisdiction.

Fifth, the government had a few years ago taken initiative to draft new legislation to resolve inter-religious family disputes. The Bill met stern opposition from some Muftis and some members of the Conference of Rulers and was shelved.

It is time to revive the Bill after adequate consultation. Sweeping problems under the carpet is not doing our nation any good.

Sixth, the government should rely on Article 130 to refer to the Federal Court for the court’s opinion all questions that have arisen about the working of Article 121(1A).

This article was inserted to resolve disputes between Syariah and civil courts but has brought in its wake new dilemmas. That’s life and the law. Good laws often lead to undesired and undesirable consequences. We need to go back to the drawing board and begin anew.

> Shad Faruqi is Emeritus Professor of Law at UiTM. The views expressed are entirely the writer’s own.

Withdrawal of Bills hailed

The Star
by TAN YI LIANG

PETALING JAYA: The legal community praised the Government for withdrawing two crime-related Bills from Parliament, saying that both of them needed more fine-tuning.

Bar Council president Christopher Leong welcomed the withdrawal of the Criminal Procedure Code (CPC) (Amendments) 2013 and the Evidence (Amendment) Bill 2013.

“Justice must always take into account the particular circumstances of each case and the discretion of the judiciary in this regard must never be interfered with,” he said yesterday.

Objections have been raised by the legal community over the amendments to the CPC as anyone found guilty of multiple offences will now have to serve time for each crime consecutively, with concurrent sentences disallowed under the new amendments.

For example, a person convicted of housebreaking and theft will have to serve out the sentence for each offence one after another.

And since housebreaking and theft carry a maximum of two years and seven years jail respectively, the person could end up behind bars for nine years.

The amendments would also have taken away the judges’ discretion to apply Section 294, which would have meant that a judge would no longer have a discretion to release youth offenders on probation of good conduct if the law provided a minimum penalty for their offence.

Leong said if the Evidence (Amendment) Bill 2013 was passed, it would be problematic to allow evidence taken from witnesses in the absence of the accused in a criminal trial.

Lawyers for Liberty co-founder Eric Paulsen said if the Evidence (Amendment) Bill was passed, it would mean witnesses can testify in secret, with the accused or their counsel unable to see, hear or cross-examine those witnesses.

“Such secrecy is repugnant to the very basic foundation of our criminal justice system that demands a fair trial,” said Paulsen.

On the withdrawal of the CPC, Paulsen said judges need to take into account various factors in individual cases.

“The discretionary powers of judges should remain,” he added.

On Wednesday, the Government withdrew six Bills including the amendments to the CPC and the Evidence Bills.

Criminal defence lawyer Sreekant Pillai said plea bargaining would be a waste due to the lengthy jail sentences the accused would likely face if the CPC amendments were passed.

Six bills withdrawn for fine-tuning

The New Straits Times 
by ILI LIYANA MOKHTAR AND ELVINA FERNANDEZ

OPEN APPROACH: Government to improve them after taking into account people's views, says minister

SIX bills have been withdrawn from the Dewan Rakyat, including an amendment to the Criminal Procedure Code  Bill 2013, to allow more time to fine-tune them.

The bills were due for their second and third readings in the august house.

Ministers in the Prime Minister's Department Nancy Shukri and Datuk Seri Shahidan Kassim as well as Deputy Finance Minister Datuk Ahmad Maslan submitted the motion to withdraw the bills.

The other bills are the Common Gaming Houses (Amendment) Bill 2013, Lotteries (Amendment) Bill 2013, Pool Betting (Amendment) Bill 2013, Emblem and Names (Prevention of Improper Use) (Amendment) Bill 2013 and the Evidence (Amendment) Bill 2013.

Nancy said the government had decided to improve on the bills after taking into account the views of stakeholders, including suggestions from members of parliament, politicians, representatives of non-governmental organisations and lawyers.

"This is proof that the government is willing to listen and has the people's interests at heart.

"We are taking an open approach towards improving the judicial system."

She said the withdrawal of bills did not mean that the government was not serious about fighting crime, but that there was a commitment to make the amendments.

"Some of the opinions and suggestions we have received are parallel to the focus and objectives of the government."

Nancy said although the bills were tabled for first reading, views and suggestions could be considered to make the bills more comprehensive.

Changes to law to give children more rights

The New Straits Times

KUCHING: The Women, Family and Community Development Ministry will propose amendments to the Child Act 2011 to give children more rights.

Minister Datuk Seri Rohani Abdul Karim said the ministry also wanted children's participation in implementing policies related to their development.

"We would like to hear from the children and their aspirations," she said after the launch of National Children's Day at Borneo Convention Centre here yesterday.

Rohani said the measure also aimed to defend children from discrimination.

"We can never neglect the rights and roles of children as Malaysia has 10 million children, which is one third of the nation's population."

The ministry is in talks with stakeholders to discuss the proposed amendments.

"We have submitted the draft of the amendment to the Attorney-General's Chambers for review and expect to table it at Parliament next year."

Earlier, state Family, Women and Family Development Minister Datuk Fatimah Abdullah said Sarawak lacked pre-schools and kindergartens for disabled children.

"We only have six such pre-schools and a kindergarten in the state and it is not enough to cater to the needs of the disabled children," she said.

Meanwhile, the Tunas Jaya awards were given to six children, including two disabled ones, for their achievements.

More than 4,000 children gathered at the BCCK for the one-day event.

Azalina berang dengan cadangan pindaan Kanun Keseksaan

Minister replies to MPs who want an alternative law body

The Star

THERE cannot be two Bar Councils in the country, says Minister in the Prime Minister’s Department in charge of law Datuk Nancy Shukri.

“Lawyers may be able to have a separate society to defend their rights, but the fact is that there can never be another Bar Council,” she said during the second reading of the Legal Profession (Amendment) Act 2012.

She was responding to comments from MPs who had questioned the Bar Council’s impartiality and called for an alternative Bar to be created.

Earlier, Datuk Bung Mokhtar Radin (BN - Kinabatangan) claimed that the Bar Council had appeared to have “turned its back on the country and people’s aspirations”.

Datuk Shamsul Anuar Nasarah (BN - Lenggong) said the Bar Council often dragged the people into issues unsuitable to its role.

Datuk Seri Noh Omar (BN - Tanjung Karang) went further and questioned the integrity of some senior lawyers.

“The Bar Council practises double standards. It criticises the Govern­ment, but keeps silent when the Opposition commits wrong-doings.

“The Bar Council should remain impartial with regard to justice and the law,” he added.

On the Legal Profession (Amend­ment) Act 2012, Nancy said local legal firms would be protected in the event of the liberalisation of legal practice in Malaysia.

“We have advised GLCs and international banks based here to give priority to local law firms when they engage legal services,” she said.

She added that foreign lawyers and law firms registered to practise would be monitored by a select committee to ensure national interests are protected.

“Foreign lawyers and law firms must first receive a practising licence from the select committee.

“Each applicant will also have to present a business plan.

“They will be permitted to provide legal advice and consultation on foreign matters, and are subject to all the rules and regulations of the Bar Council and its disciplinary board,” she said.

Lawyers for liberty 'solved citizenship issue in one day'

Raja Muda: Review quality of law courses

The Star

KUALA LUMPUR: Institutions of higher learning have been urged to review the quality of their law courses following the drop in the number of those who pass the Certificate of Legal Practice (CLP).

The Raja Muda of Perak Raja Dr Nazrin Shah said they should not compromise quality for quantity, especially in new intakes for law faculties.

He said there was an increasing gap between the quantity and quality of law graduates, as since 1994, the percentage of candidates who passed the CLP examination was below 50%.

“The scenario calls for a review of the quality of teachers, education, teacher-student ratio and the quality of knowledge and skills successfully provided to graduates,” Raja Nazrin said during the 18th CLP convocation 2012 at PWTC here yesterday.

He said that over the past three years, the percentage of candidates who passed remained low at 40% in 2010, 45% in 2011 and 41% last year.

Last year, 350 of 860 candidates passed the CLP and were qualified to practice.

“As such, an analysis needs to be done among the graduates who failed the CLP to find out how many of the failed graduates came from local institutions and how many from foreign institutions,” he added.

Raja Nazrin also said the analysis had to identify which local institutions had the highest number of CLP failures.

Last year, the Bar Council did a study among 393 law firms to get feedback on the attitude, skills and abilities considered important when hiring candidates.

“Four factors were considered important by the law firms proficiency in English, both oral and written, communication skills, legal knowledge and commitment to the firm.

“The findings have to be taken into consideration by the local institutions which offer law courses to ensure the graduates they produce have market value on par with those graduating from institutions in other countries.”

The enforcement of morality

The Star 
Reflecting on the law By SHAD SALEEM FARUQI

The 10-year-old law under which the summonses were issued to salon owners for defying the ban on gender segregation in Kota Baru is not a Syariah Enactment but a municipal by-law.

CHRISTMAS is a season of peace and goodwill; of building bridges between hearts and minds; of accommodation and understanding. Regrettably, a number of recent incidents, inclu­ding the Kota Baru Municipal Council’s imposition of repeated fines on hair salons that allow females to attend to male clients, has raised the ire of many non-Muslims.

There are complaints that all hairdressing businesses are being unfairly and vicariously condemned as immoral operations due to the shady activities of a few salons.

The industry is facing harassment and heavy financial losses. It is also alleged that there is no consistency in principle.

While hair salons are being singled out for gender segregation, in other service-related professions such as nursing, medicine, transport and education, males can attend to females and vice versa.

The syariah: The most volatile criticism is that the prosecution of salon owners for defying the ban on gender segregation amounts to subjection of non-Muslims to the syariah and hudud. This criticism is terribly inaccurate and appears to be politicaly inspired.

The 10-year-old law under which the summonses were issued is not a Syariah Enactment but a municipal by-law.

The authorities enforcing the ban were ordinary local authority personnel and not Religious Department officers. If the matter were to be challenged in court, the relevant forum will be civil and not syariah courts.

Under our Constitution, the application of the syariah is subject to a number of limits. First, state assemblies do not have the power to enact laws on all matters of Islam but only in relation to the Muslim law topics specifically mentioned in Schedule 9, List II, Para 1.

Second, state power to punish crimes against the precepts of Islam is limited by the words “except in re­gard to matters included in the Fede­ral List” or “covered by federal law”.

Third, syariah courts have jurisdiction only over persons professing the religion of Islam.

Fourth, the penalty imposable by syariah courts is limited to three years’ jail, RM5,000 fine and six lashes.

To raise the spectre of hudud (i.e. serious crimes like theft, punishment for which is prescribed in the Quran) is meant to instil fear. Violation of licensing conditions by salons has nothing to do with the hudud.

Law and morality: Instead of raising false issues of religious imposition, the proper agenda for debate is the perennial one of law and morality. Is it the business of the state to use the blunt instrument of the law to enforce moral propriety? Or should individual autonomy and freedom be preserved?

Legal liberalism: Supporters of legal liberalism assert that it is not the business of the law to trespass into matters of private moral conduct.

Legal coercion can only be justified for the purpose of preventing harm to others.

Unless there is a deliberate attempt to equate the sphere of crime with that of sin, there must remain a sphere of private morality that is best left to the individual’s conscience.

The so-called “moral majority” (the existence of which is extremely problematic to prove) has no moral right to dictate to the minority how it ought to live.

Individuals have a right to the widest possible autonomy and freedom of choice, unless their conduct causes detriment to the society of which they are a part.

In a democracy, value pluralism must be allowed. People have a “right to be wrong” on personal matters.

Traditionalists: Such liberalism is rejected by most traditionalists, fundamentalists and moralists.

In their view, it is not morally wrong to uphold the moral position. The state has many functions.

Promoting the virtuous life is one of them. If the state can intervene in moral issues such as women’s and workers’ rights, it can with similar justification intervene in matters of conventional morality.

The perverse new virtue of value relativism, which urges people to be non-judgmental on issues of morality and immorality, must be questioned. In many modern societies, rejection of absolute values has often led to a rejection of all values.

Belief in relativity has led to the acceptance of the Shakespearean idea that “nothing is good or bad but thinking makes it so”.

Rejection of religion and tradition have led to a situation where belief in nothing often leads to a belief in anything!

State intervention in matters of sex morality is justified because a pervasive moral permissiveness and emptiness permeate modern society.

We are threatened more by moral anarchy than by dictatorship; more by decadence and apathy than by fanaticism.

Under these circumstances, the dualism supported by the liberals between law and morality needs to be subordinated to a more complex unity, which seeks the interaction of secular and spiritual aspects ot life rather than their compartmentalisation.

Whether the liberal or the paternalistic view is better is ultimately a matter of subjective values and jurisprudential perspective. No knock-down argument is available to demolish either view.

A dialogue is necessary not only on issues of hair salons but on a whole range of issues on which the human rights and autonomy argument comes face to face with a traditionalist value system.

Not only in Malaysia, but in other societies, painful issues of personal autonomy versus moral propriety tug at our conscience.

There are debates about abortion in Ireland, same sex marriages in the United States, homosexuality and sex-change operations in Malaysia and divorce in Philippines.

No simple answers are available. All that one can say is that there must be widest posssible discussion before any decision is made.

The author wishes all Christian friends “Merry Christmas and Happy New Year”.

Declaration falls short of international standards

Malay Mail 
by Andrea Mathew

THE first Asean human rights declaration signed by Prime Minister Datuk Seri Najib Razak has been labelled as a document to justify human rights violations.

Civil liberties lawyer Syahredzan Johan (pic) said the declaration falls short of international standards, specifi -cally the Universal Declaration of Human Rights (UDHR) and has a caveat counter to human rights.

“There is an important caveat that it (protection of human rights) must be ‘in the regional and national context bearing in mind diff erent political, economic, legal, social, cultural, historical and religious backgrounds’ and ‘meet the just requirements of national security, public order, public health, public safety, public morality, as well as the general welfare of the peoples in a democratic society’.

“Thus member states can basically justify human rights violations if it falls under these wide caveats.” Syahredzan said the Declaration is nothing more than a public relations exercise to project a more ‘human-rights friendly’ image of Asean member states.

The Declaration is also said to have some glaring exclusions including freedom of association.

Suara Rakyat Malaysia (Suaram) executive directo Cynthia Gabriel said the government has signed onto a flawed and incomplete document that leaves out many components.

Gabriel who was involved in civil society discussions with Asean intergovernmental commission of human rights said, “Some recommendations were proposed but not incorporated into the final version of the declaration.

“We are disappointed that this is the final version because many communities are not protected under the Declaration such as rights of lesbian, gay, bisexual and transgender groups.

This is important because they are a vulnerable community that is often harassed by law enforcement agencies.

“We had also suggested compliance of domestic laws with international standards as many Asean countries practice the death penalty.

In addition many socio-cultural rights were generalised as the Declaration focused on civil and political rights.”

Gabriel said many Asean governments are authoritarian regimes and not promoters of human rights.

Should the King invoke Article 13

The Sun Daily
by Hemananthani Sivanandam

PETALING JAYA (Nov 5, 2012): The contentious debate about whether Malaysia is a secular or Islamic state has been raging on both sides of the political divide.

DAP chairman Karpal Singh recently proposed urging the Yang di-Pertuan Agong to invoke his powers under Article 130 of the Federal Constitution, to refer to the full bench of the Federal Court for an opinion as to whether Malaysia is a secular state or an Islamic state.

He argued that in the 1988 case of Che Omar Che Soh vs Public Prosecutor, the Supreme Court headed by then lord president Tun Salleh Abbas had clearly stated that the law in the country was secular.

However, Minister in the Prime Minister's Department Datuk Seri Nazri Aziz said in Parliament last month that Malaysia had never been endorsed or declared as a secular country.

He said according to the nation's history, Malaysia was formed based on the Islamic government of the Malay Sultanate and the Malay rulers are the heads of religion in their respective states.

While some believe it is best to put an end to the issue, others feel it is best to just move on and leave the sensitive subject unexplored. Views put forward include:

Nazri Aziz

Tun Salleh's (pronouncement) was obiter dicta (Latin for "something mentioned in passing) and it was not an issue put before the court to decide if the country is secular or Islamic.

He mentioned only in passing that Malaysia has secular laws. It is up to the King now.

Also, we don't have to be one or the other. We are unique and we have gone this far without any problem.

Why do we have to follow one or the other? If we are not secular, must we be Islamic? No!

Monash University political science lecturer Prof Dr James Chin

Asking for a legal opinion by the King is frought with danger because the issue at stake is really not a constitutional issue, but a political question.

The best place to settle the debate is on the floor of the Parliament which can amend the constitution to say either way.

Karpal Singh

If the government feels that it is obiter dicta, and not the rationale for the decision, then it should get the King to refer the issue to the Federal Court for its opinion.

I don't think it was obiter dicta, because the court in deciding whether Islamic or secular laws applied in the country, declared it was secular laws … which means we are not an Islamic state.

Even democracy is not mentioned in the constitution, but we should go on the overall manner in which it was drafted. Let the issue be decided once and for all by a full bench of the Federal Court.

Political analyst Khoo Kay Peng

Karpal's suggestion is apt as this issue has been politicised and has tremendous effect on the judiciary, administration and public policy.

In the interest of the nation, I think the King should invoke his powers to settle the matter, as he is above politics. His role is also providing positive moderation of the country.

Let the court decide and put an end to this instead of letting the politicians go around confusing the people.

Mandatory sentencing is wrong

Malay Mail
by Lim Chee Wee

MINISTER in the Prime Minister’s Department Datuk Seri Mohamed Nazri Abdul Aziz announced that Section 376 of the Penal Code, which carries a minimum jail sentence of not less than five years and a maximum of not more than twenty years and whipping, for rape, including statutory rape, would be amended.

It would be amended to provide that Section 294(1) of the Criminal Procedure Code, which gives judges discretionary powers to give a lighter sentence to first-time offenders, including binding over, which means no imprisonment, would not apply to statutory rape cases.

Statutory rape means sexual intercourse between a man and a woman under sixteen years of age with or without consent.

Such a knee-jerk reaction of legislative amendment to impose mandatory sentencing, to the two recent controversial decisions, is a wrong approach.

It fails to consider the complexities of sentencing where no two cases are exactly the same, that the two decisions are pending appeal, and sentencing council is a better answer than mandatory sentencing.

The decision in the bowler case is not unprecedented because Australia witnessed a similar result in its case involving Olympic cyclist Mark Jamieson.

Consider the young love situation

There are two competing interests of the criminal law, one being its protective role in protecting the emotional and physical wellbeing of children and the other is unnecessary or arbitrary interference in the private lives of young people.

This amendment fails to consider young love (Romeo and Juliet) relationships, such as between two 15-year-olds, or between a 15-year-old and an 18-year-old. Whilst the 15-year old may be sent to rehabilitation school, the 18-year-old will go to jail.

The young love situation is recognised in England and Wales where the Crown Prosecution Service (CPS) Legal Guidance on the Sexual Offences Act 2003 (SOA) does explicitly state, “that prosecutors may exercise more discretion where the defendant is a child” and cites Lord Falconer in Parliament stating, “where sexual relationships between minors are not abusive, prosecuting either or both children is highly unlikely to be in the public interest”.

The public interest requires the prosecution of an offence of unlawful sexual intercourse with a girl under 13, unless exceptional circumstances exist.

The CPS will have regard to:

The age of the defendant will be highly relevant. Even if the defendant is over 24, a prosecution may not be in the public interest if he had reasonable cause for believing that the girl was over 16.

The relevant ages of the parties;

The emotional maturity of the girl and whether she entered into a sexual relationship willingly;

The relationship between the parties and whether there was an existence of a duty of care or breach of trust (refer to the section on Abuse of Trust in Sexual Offences Act 2003, elsewhere in Legal Guidance).

IN summary, a man who is considerably older than the girl is likely to be prosecuted, especially if he owed her a duty of care; whereas it may not be necessary to prosecute a young man with whom the girl has been having a consensual relationship.

Baroness Hale said this in a House of Lords decision R v G (2008) UKHL (UK House of Lords) 37 involving statutory rape, which is a stern warning to men:

“Every male has a choice about where he puts his penis. It may be difficult for him to restrain himself when aroused but he has a choice. There is nothing unjust or irrational about a law which says that if he chooses to put his penis inside a child who turns out to be under 13 he has committed an offence (although the state of his mind may again be relevant to sentence) ... in principle, sex with a child under 16 is not allowed.

“When the child is under 13, three years younger than that, he takes the risk that she may be younger than he thinks she is. The object is to make him take responsibility for what he chooses to do with what is capable of being, not only an instrument of great pleasure, but also a weapon of great danger”. (Para 46).

Sentencing council promotes consistency

The four aims of sentencing are retribution, deterrence, rehabilitation and incapacitation.

In attempting to achieve these aims, the established judicial principles of sentencing include that the court shall pass a sentence that is proportionate to the offender’s degree of culpability and consistent with other sentences for similar offences.

Consistency and proportionality of sentencing are the two most difficult aspects of sentencing and as both history and recent events demonstrate.

One of the most common ways of resolving this dilemma and achieve consistency in sentencing is the establishment of a sentencing council which would promote consistency by having guidelines for judges to decide on the appropriate sentence to reflect the crime committed and proportionate to the seriousness of the offence.

The sentencing guidelines for individual offences set out sentence ranges reflecting different levels of seriousness and within each range, a starting point for the sentence. The guidelines also provide guidance on factors the court should take into account that may mean a more or less severe sentence should be imposed.

The jurisdictions which have it include England and Wales, Scotland and Australia (New South Wales and Victoria).

The Sentencing Council for England and Wales promotes greater consistency in sentencing, whilst maintaining the independence of the judiciary, produces guidelines on sentencing for the judiciary and aims to increase public understanding of sentencing.

The composition of these councils includes judges, prosecutors, civil societies, defence lawyers and academics.

LIM CHEE WEE is the Malaysian Bar president.