Thursday, 30 April 2009

A by-election in Selangor? - Malaysiakini

Kota Alam Shah state representative M Manoharan, who is under the Internal Security Act detention, is believed to be considering quitting his seat, Malaysiakini learnt today.

A source close to…

More ▼

They will all go to hell, but you might end up joining them

The basic foundation of the protests by the Muslim groups is that Islam is the one true religion, the faith of the one true God, the Absolute Truth and that…

More ▼

The basic foundation of the protests by the Muslim groups is that Islam is the one true religion, the faith of the one true God, the Absolute Truth and that every other religion on the face of the earth is false. False deities, false faiths, false, false, false. As such, certain rights are inalienable to the Muslims, and absolutely alienated from the non-Muslims.

By Yusseri Yusof, The Malaysian Insider

If there is one thing that demonstrates that we are probably just a bunch of people who happen to live on the same land, it is the issue of religious conversion. This is the one thing that shows, starkly, why we still have some distance to go before we can safely say that we are one united nation.

Last week, five ministers sat down and came up with the policy that a child is to be raised in the faith of the parents when they were married even if one spouse then decides to become a Muslim. It was a decision that was greeted warmly by the non-Muslims, as well as the odd Muslim or two. But for seemingly the majority of Muslims, it was not received very well.

Firstly, let's consider the reason why this policy even needed to be made and announced. The core is that there has been a slew of cases where a marriage broke down and one of the spouses converted into Islam. And in what feels a bit like a “package deal” the saudara/i baru then converts the children into Islam too. Usually, well … obviously, without the consent of the other parent.

The cases are numerous, more numerous than most people think, and invariably they involve Indian families. Why that is so, I'd imagine that the sociologists could tell us eventually.

Malik Imtiaz Sarwar, the lawyer who is probably one of the most prominent persons involved in these sort of stuff, was quick to laud the decision though he expressed reservations as to how the policy would actually translate into practice.

He also wrote that in his opinion, the policy seems to adhere to the Constitution, where the word “parent” is also to be understood to mean “parents”.

Why was that pertinent? Because Zulkifli Noordin (and it had to be him, didn't it?), among others, objected to the policy, stating that there was already precedent in this matter, citing the case of R. Subashini where the court decided that under Article 12 (4) of the Constitution, any one of the parent or legal guardian is allowed to decide on the faith of the child(ren).

At that point, we start to slide down the slippery slope of logical fallacy and vacuous reasoning.

I say that because, well, let's examine the protests made by those who object to the policy.

Zulkifli argues that the matter is resolved in spite of the policy because the court asserted that one of the parents can decide which faith the child is to be in. What Zulkifli did not say, but seemed to imply, is that the one parent is to obviously be the Muslim parent. What Zulkifli did not say, but seemed to imply, is that the moment one of the parents converts into Islam, that parent is automatically elevated in status and therefore has the upper hand.

But then, Zulkifli has also always believed that converting a child into Islam is not really conversion but more of a reversion. Because he believes that every child that has not reached puberty is considered Muslim under certain interpretations of Syaria law. This, of course, might be rather shocking news to the parents of the children, but try telling that to Zulkifli.

Similarly, the Muslim coalition of NGOs calling itself Pembela protests the policy where one of the members, Yusri Mohamad, said: “In Article 12 section 4 of the Constitution, the faith of a child who is not yet an adult is determined by the parents. The courts have interpreted that the parents have the right to decide regardless if they are the husband or wife.”

Pembela's argument was that the policy would deny the parent who converted his or her right and responsibility over the future of the children, saying that it would not be fair to those who want to convert into Islam.

What is not said, but seemingly implied, is that as long as one of the parents is a Muslim, then he or she can convert the children, even if the other one disagrees. Because as a Muslim, the parent has a responsibility to raise the children to be faithful and good Muslims.

To make clear why this reasoning breaks down, let's flip it the other way. Say that the other parent who has not converted decides that the children should be in the religion of the unconverted parent, how is the “right to decide” not applied to the parent?

Or, let's say that the other parent who has not converted then decides to convert from, for example, Hinduism to Catholicism, just as his or her erstwhile partner converts into Islam. How is the “right to decide” not applied to the now Catholic parent?

If denying the right of the converted Muslim parent to raise the children in his or her faith is unfair, how is it fair to deny the unconverted parent the right to raise the children in her or his faith?

Wait, you know what, I'm going to stop beating about the bush and get straight to the point. The basic foundation of the protests by the Muslim groups is that Islam is the one true religion, the faith of the one true God, the Absolute Truth and that every other religion on the face of the earth is false. False deities, false faiths, false, false, false. As such, certain rights are inalienable to the Muslims, and absolutely alienated from the non-Muslims.

And this reasoning scares the pants out of some non-Muslims in Malaysia, and pisses off a lot of the others. In some cases, achieving both at the same time.

I write this as a Malay, ergo a Muslim. I write this as a Muslim who looks on uncomfortably at all the custody battles and conversion arguments. I write this as a Muslim who finds it hard to accept that it's okay to assume primacy over others, simply because their beliefs are considered false … rendering them as less than worthy of the same consideration as Muslims.

Islam is a religion of justice, fairness, equality and compassion. It's well past time that we prove it, isn't it? And stop scaring the pants out of, and pissing off, our fellow Malaysian brothers and sisters. They will all end up going to hell, of course, but you never know, you might end up joining them.

What if the shoe was on the other foot?

In the first place, I DO NOT whack Islam. Yes, I whack Muslims. But I do not whack Islam. And I am certainly not in the business of whacking the…

More ▼

In the first place, I DO NOT whack Islam. Yes, I whack Muslims. But I do not whack Islam. And I am certainly not in the business of whacking the other religions, any religion for that matter.

NO HOLDS BARRED

Raja Petra Kamarudin

Today, I want to break away from politics for a short while and talk about a subject many do not like to talk about -- Islam. Tomorrow, I shall continue my story about the Royal Malaysian Police. We have to allow the boys in blue at least two days to absorb what I have written thus far. If we move too fast they may not be able to keep up with us.

Many don’t like me talking about Islam. They also want to know why I only ‘whack’ Islam and not any of the other religions.

In the first place, I DO NOT whack Islam. Yes, I whack Muslims. But I do not whack Islam. And I am certainly not in the business of whacking the other religions, any religion for that matter.

So why do I persistently talk about Islam? Simple, because Islam is the official religion of this country -- so Islam touches our everyday life. There is nothing we do or say that Islam does not somehow, either in a big or small way, decide whether what we do or say is allowed or forbidden.

For example, when Muslims make police reports against anyone perceived as being anti-establishment or pro-opposition, they always say it is to defend the dignity of Islam, the Malays, the Monarchy, and so on. They say that the Internal Security Act must be retained because it is needed to defend the rights of the Malays and the dignity of Islam. Every move they make, democratic or otherwise, is for the sake of Islam. Or so they argue.

So how do we separate Islam from our daily lives? A non-Muslim who has a relationship or affair with a Muslim is said to have done something wrong because the other partner is a Muslim. Non-Muslims who employ Muslims in their pubs or discos commit a crime because Muslims must not handle liquor. Non-Muslims who sell beer to Muslims commit a crime because Muslims are forbidden from drinking. Non-Muslim employees who refuse to allow their Muslim staff time off for prayers would be in trouble with the government. Non-Muslims living next door to a mosque who complain about the ‘noise’ would get death threats -- that is if they are lucky enough to escape ISA detention. And so on and so forth, the list is endless.

If non-Muslims raise any issue they would be reminded that this is a Muslim country and they do so at their own peril. They can even get detained without trial or charged for sedition for complaining about certain Islamic policies or issues related to Islam.

Malaysian politics is almost always about Islam. Malays would be told if they vote for the opposition then the Kafir (infidels) would be calling the shots. Lim Guan Eng is a Kafir who controls the Kafir government of Penang. So Malays are being subjected to a Kafir regime. Nizar may be a Muslim and from PAS, an Islamic party, but the Kafir is the real power behind the throne in Perak. Nizar is just a puppet of the Kafir. That was why he needed to be ousted even though it was done undemocratically and in violation of the Constitution. Islam comes first and democracy can be suspended or overridden for the sake of Islam.

The bottom line is, Islam is always credited -- or blamed, as the case may be -- for whatever these Malays do because they claim they are doing it in the name of Islam and for the sake of Islam. But in most cases Islam is not really the reason for their actions. What they do is not what Islam asks us to do. Islam is merely the camouflage used by these people to give legitimacy to their actions, in most instances which are anti-Islamic to start off with -- such as the ISA, NEP, and so on.

Until these people who abuse the name of Islam to cover their evil deeds and to give legitimacy to their illegal acts stop doing so, Islam will forever come under the spotlight. And until then we must also continue talking about Islam, not in an attempt to give Islam bad publicity, but so that these fakes, called Munafik in Islamic lingo, can be exposed for what they really are.

Now, I also whack non-Muslims as well. I whack those non-Muslims who try to give an impression that they are experts on Islam and then make uncomplimentary or negative statements about Islam.

These people, the non-Muslims, have never gone to a madrasah or Islamic college or university to receive tutoring in Islam. But they talk as if they have a diploma or degree in Islamic studies. Then they support their arguments with a copy-and-paste job, information they obtained from the Internet, in particular from anti-Islamic websites. And then they say, “This is the proof that Islam is no good, violent, etc.”

There are those who keep posting, over and over again, the YouTube video of a small boy allegedly being punished under Hudud law for stealing some bread. They held the small boy down and used a truck to roll over his arm. The video is not a fake. But it is a video of a magic show or something like that, not of a small boy being punished under Hudud law for stealing some bread.

In cases like these I would certainly get upset. I would never defend any cruelty to children -- especially if it is for a minor crime like stealing some bread. But this a lie being perpetuated, over and over again, about the so-called cruelty of Hudud, supported by so-called evidence, the YouTube video. How, therefore, can I allow this to pass unchallenged?

What if I were to copy-and-paste the Gospel by Barnabas and whack the Christians? Hey, I have ‘evidence’, and the ‘evidence’ is the Gospel by Barnabas. I searched the Internet and found this Gospel on one anti-Christian website. So I copy-and-paste it for my article and that now makes me an unchallenged expert on Christianity. And I now openly challenge the Bishop to a debate so that I can publicly prove that Christianity, as being practiced now, is false and that the ‘real’ Christianity is like what is mentioned in the Quran, not like what is stated in the ‘false’ Bible -- and this is proven beyond any shadow of doubt by the cut-and-paste Gospel that I have found on an anti-Christian website set up by a Muslim.

I am not saying that Islam is a sacred cow. And this is the trouble with Muslims; they want Islam to be regarded as a sacred cow. If you keep Islam personal then this would no doubt be a reasonable demand. But when Islam touches everyone’s lives, non-Muslims included, then it becomes ‘public property' and the public, non-Muslims included, have every right to comment on Islam.

But what is comment and what is insult? I can comment, but I should not insult. And this is where many do not understand the difference between the two. They feel that commenting also means the freedom to insult. And this is when the problem begins. Have you noticed that Muslims (at least learned Muslims -- although there are some stupid ones who try to comment on something they know nothing about) are very careful about commenting on other religions lest they accidentally insult the other religions?

Muslims regard the Prophets of the other religions as also Prophets of Islam. And from the beginning of time there were supposed to be 124,000 Prophets in all, according to the Muslim belief. And EVERY community has a Prophet; sometimes some communities have more than one Prophet at one time. But only 25 Prophets are mentioned by name in the Quran. This means 123,975 more Prophets are unknown. Could Buddha be one of them? Could be, who knows, since there are no names mentioned for 123,975 of the Prophets.

Only stupid and unlearned Muslims would whack the other religions. And those non-Muslims who whack Islam are also stupid and unlearned. And when you collect ‘evidence’ from anti-Islamic websites to support your arguments, then you are even more ignorant than you realise.

On another point, some non-Muslim readers like to copy-and-paste so-called Hadith to support their anti-Islam bashing. They will copy-and-paste a saying or story that is supposed to be ‘authentic’ and gleefully say, “There you are. This is the proof.”

Why do you think Muslims get upset with this cheap shot? Even amongst Muslims there are disagreements as to which Hadith are authentic and which are fakes. There are supposed to be 700,000 Hadith in all. Some Muslims accept only 7,000 of them. Others accept only 5,000. And there are some who accept only 500. Then we have those who reject the entire 700,000 and will not accept even one as authentic.

But we have these non-Muslim readers of Malaysia Today who consider themselves an authority and expert on Islam who cut-and-paste one of the disputed and not unanimously accepted Hadith and say, “There you are, this is proof that Islam sucks.”

As I said, if I were to copy-and-paste the Gospel by Barnabas and say to the Christians, “This is proof that your brand of Christianity is bullshit,” how do you think they would feel? Well, that is the same way I, as would many Muslims, feel -- a cheap shot below the belt aimed at smearing Islam in an unfair and unprofessional manner.

So you really do not know much about Islam as what you think you do. Hell, even many Muslims who think they know so much about Islam actually know very little. What they know are merely old wives tales and superstition, which they think is Islam but in reality are mere fables. So please refrain from commenting and then being very smug about it. And anti-Islam websites would be the last source I would depend on to support my anti-Islam bashing. That would be like asking Tun Dr Mahathir Mohamad to say nice things about Anwar Ibrahim.

Usurper Zambry plotting 2nd unethical, undemocratic, illegal power grab to remove Perak Speaker Sivakumar

By Lim Kit Siang,

The usurper Perak Mentri Besar Datuk Seri Zambry Abdul Kadir has finally admitted that his first agenda at the illegally-convened Perak State Assembly meeting on May…

More ▼

By Lim Kit Siang,

The usurper Perak Mentri Besar Datuk Seri Zambry Abdul Kadir has finally admitted that his first agenda at the illegally-convened Perak State Assembly meeting on May 7 is to move a motion to remove the Perak Speaker V. Sivakumar, who has become the most famous Speaker in the Commonwealth for his great and valiant battle in the past three months to defend the Perak State Assembly from encroachments from other branches of government and to uphold the doctrine of Separation of Powers.

Zambry should realize that his usurpation of the office of Perak Mentri Besar as a result of the the unethical, undemocratic, illegal and unconstitutional power grab in Perak in early February cannot gain legitimacy by another unethical, undemocratic, illegal and unconstitutional power grab, this time by breaking all parliamentary traditions, conventions and practices by removing the Speaker through the use of three renegade Assembly members and a renegade State Assembly clerk.

How can there be any legitimate government when it is founded on two unethical, undemocratic, illegal and unconstitutional power grabs, firstly on the office of Mentri Besar and secondly, three months later, on the office of Perak Speaker – based on three renegade Assembly persons who dare not appear publicly even in their own constituencies for three months after their political defection and betrayal and one renegade State Assembly clerk who had been sacked from his position for repeated public insubordination of his immediate superior, the Speaker?

Zambry is also guilty of acting in a most arrogant and high-handed manner even as an usurper Mentri Besar, as he seems to be dealing with an unknown usurper Speaker in convening the Perak State Assembly on May 7 – completely refusing to accept and acknowledge that Sivakumar is the Speaker until there is a proper and legal removal.

As the usurper Mentri Besar, Zambry should abandon the second unethical, undemocratic, illegal and unconstitutional power grab in Perak to remove Sivakumar as Perak Speaker in an illegally-convened State Assembly on May 7 based on the support of three renegade State Assembly members and agree to the dissolution of Perak State Assembly for at least three reasons:

Firstly, the convening of the May 7 State Assembly is contrary to the public commitment of the Prime Minister, Datuk Seri Najib Razak who said on February 28 that the Perak State Assembly cannot meet until the court has decided that the Barisan Nasional is the legal government to rule the state in accordance with the Perak Constitution. As the court has not ruled that Zambry is legally the Perak Mentri Besar, the Perak State Assembly meeting convened on May 7 should be called off.

Secondly, a second unethical, undemocratic, illegal and unconstitutional power grab in Perak based on the support of three renegade State Assembly members can neither confer legitimacy on Zambry as the legal Mentri Besar or mandate to the Perak Barisan Nasional govern the Perak state.

Just as zero plus zero is zero, illegality plus illegality is illegality!

Thirdly, if Zambry cares for the credibility, integrity and legitimacy of Najib as Prime Minister of Malaysia, he should relieve Najib of the baggage of having orchestrated an unethical, undemocratic, illegal and unconstitutional power grab in Perak by demonstrating that the Perak Barisan Nasional can secure the mandate to govern the state through a new state wide elections and not through the “biggest political robbery” in the history of Perak and Malaysia.

N.H. Chan: An inconvenient judge

by Debra Chong | The Malaysian Insider

IPOH, April 30 — Chan Nyarn Hoi lives in a modest two-storey semi-detached house in a quiet lane near the state stadium in…

More ▼

by Debra Chong | The Malaysian Insider

IPOH, April 30 — Chan Nyarn Hoi lives in a modest two-storey semi-detached house in a quiet lane near the state stadium in Perak with his wife, a dog and seven large Japanese carp.

At 74 years old and with ruddy smooth cheeks under a full head of snowy white hair, few would connect him to the acerbic, no-nonsense former judge Datuk N.H. Chan, who has in the last couple of months done the unthinkable: fire away missives at judges who have trampled on the Federal Constitution in deciding issues related to the power grab in Perak. His lengthy articles have reminded Malaysians of a time gone by when towering individuals sat on the Bench and simplified the Perak constitutional crisis for the common man.

Still seething over the events that transpired in Perak and decisions of the apex court, he says that if Malaysians are upset with the state of the judiciary and think that the present crop of judges are not up to the mark, they should exercise the power of their vote to change the state of affairs in the country.

Born in Ipoh on March 27, 1935, Chan was admitted to the Bar in 1961. He was a lawyer for almost two decades before becoming a High Court judge and moving to Kuala Lumpur.

He was among the first batch of High Court judges to be elevated to the Court of Appeal, set up in 1994 to act as an intermediate court between the High Court and the apex court.

Chan’s first book, “Judging the Judges”, was published in 2007 and is a collection of his articles for the Perak Bar. Only 1,000 copies were published.

His second book, “How to Judge the Judges”, is expected to come out some time in the middle of the year. The final draft has just been sent to the publishers. They wanted him to include the Perak saga as well, but because it is ongoing, he had to draw a line somewhere. He has included some information in the epilogue.

In an exclusive interview, the former judge, who was recommended to the Bench by none other than Sultan Azlan Shah, the Sultan of Perak and a central figure in the present crisis, tells The Malaysian Insider why he feels compelled to speak out.

Q: Unlike many former judges, you have been very vocal in your criticisms against the judiciary. What drives you?

A: In the first place, I am not against the judiciary. I am sure there are some good judges around, only they have not manifested themselves in the present constitutional, should I say, crisis in Perak.

I expected James Foong JCA (as he then was, he is now a Federal Court judge) to do the right thing but he failed to do that. I suppose it takes great courage for a Court of Appeal judge who sat as a winger in the Federal Court to give a dissenting judgment.

Now, back to your question. When I became a judge I had to be true to my calling which is to know that the essence of justice is fair trial and the duty of the judge is to administer it according to law.

Lord Devlin in his book “The Judge”, wrote on page 4: “…impartiality and the appearance of it are the supreme judicial virtues. It is the verdict that matters, and if it is incorrupt, it is acceptable. To be incorrupt it must bear the stamp of a fair trial.”

And at page 85 he said: “The first — ought one to say the whole — duty of the judge is to administer justice according to law.”

Back to page 3, the book said: “What is the function of the judge? Professor Jaffe has a phrase for it — ‘the disinterested application of known law’ (Jaffe in his book “English and American Judges as Lawmakers”, page 13)”

This means that the judge’s only duty is to do justice in the disinterested application of known law. Known law means basic law and the term includes both common law and statute law.

The judge who gives the right judgment but does not appear to be impartial is useless to the judicial process. After that, the judge’s whole duty or function is to decide the case according to law on the admissible evidence before him.

And what do you call a judge who does not administer justice according to law? A renegade judge? So now you know why I am so vocal when I admonish the errant judges who did not apply unambiguous law as it stands.

Q: You have been especially blunt in your views over the issues in Perak. Why so?

A: You mean for calling a spade a spade? What do you call a judge who doesn’t follow or apply easy to understand and unambiguous statute law as it stands?

Like Article 72(1) of the Federal Constitution which says: “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”.

This law applies to all members of the legislative assembly — it does not matter if you are DAP or PKR or MCA or Barisan Nasional or any political party. Even a child could understand the plain meaning of the words. We do not need the Federal Court to interpret (meaning “explain the meaning of”) the words for us. Nor do we need any law professor from Singapore to tell us Malaysians that the courts should have the power of judicial review over what has transpired in Parliament or a Legislative Assembly.

There is separation of powers between the Legislature and the Judiciary of this country. We all know that one can apply to the courts for a judicial review over executive actions. But there is no such thing as judicial review over what transpired in the legislature — if there is such a thing then we can have judicial review over the passing into law of certain Acts of Parliament that we don’t like — like the ISA.

A long time ago when I was a High Court judge, I have sentenced many criminals to death without qualms. But personally I am against the death sentence because it is barbaric. But as a judge I must apply the law as it is.

To quote Lord Denning: “It is their [the judges] duty to administer and apply the law of the land. If they should divert it or depart from it — and do so knowingly — they themselves would be guilty of a misuse of power.”

I would never dream of doing such a thing.

Q: Why did you choose to air your views so publicly? I’m trying to understand why you got involved.

A: I’m only an outsider and I don’t care. But when everybody is missing the point and all that — and some of them have not even read the Perak Constitution, I thought I better explain why the people are angry.

Q: Why do you think the people are angry?

A: Do you know why the Perakians were up in uproar against the Sultan of Perak?

It’s because, as any lawyer will tell you, especially as he was Lord President before, that before you make a decision, you cannot see the parties. If you want to meet any of the parties, both of them must be present. You never do so by seeing one and then making a decision. The moment you do that, to the losing side or to any observer will think you have been influenced. So it’s the impression that counts.

They were angry with the Sultan because they can sense it in their bones that it is wrong to make a decision to see the other side first.

Q: Is the Sultan morally wrong or legally wrong?

A: If the Sultan had executive powers to rule, it is legally wrong, so they could apply for judicial review of the Sultan’s decision. But I pointed out in my first article he has no executive power to rule because he is not an executive monarch, he is a constitutional monarch. What he did was morally wrong.

Q: You must have seen many things during your time as a judge. What is wrong with Malaysia’s justice system? What can be done to correct it? And what’s stopping the necessary changes from taking place?

A: I don’t think there is anything wrong with our judicial system. It is the players that we should be concerned with — if we get the right people on the Bench, that is, those people who are not interested in power — because power corrupts, those fair-minded individuals who would administer justice according to law, then we will have a judiciary to be proud of.

We used to have that at one time. And if the general public think that the present crop of errant judges are not up to the mark, then the remedy is to use the power of the vote to change the present state of things.

At the general election of 1906 the common people of England toppled the Conservative Government of the day because they were unhappy with the decision of the House of Lords in the Taff Vale case which had virtually put an end to trade unions six years earlier.

That case had immense political consequences. At the general election of 1906 the opposition pledged complete immunity for trade unions.

Lord Denning said in his book “Landmarks in the Law”, page 121: “The result of the general election was like an earthquake. … It was a sweeping victory for the trade unions. Parliament immediately passed the Trade Disputes Act 1906. It is probably the most important Act ever put into the Statute Book. It reversed all the judicial decisions against trade unions. The Taff Vale case was overruled. No trade union could thereafter be sued for damages for any wrongs done by its members. Its funds were unassailable.”

There is a well known Spanish proverb which says, “He who goes with wolves learns to howl.” So that if the electorate don’t trust the judges they tend to put the blame on the government who put the judges there.

Q: Many ordinary Malaysians today feel powerless to affect positive changes to the institution of the judiciary because they lack legal knowledge. Do you agree with this view? How do you think they can work to bring about the change they want?

A: I think the real problem is this. In most cases when you read about a court decision in the newspapers, the judgment of the court is expressed in such a way that the average reader will not know if the judge is right. So invariably, we assume that the judge must be right.

I do realise the problem, so I thought I should try to explain the issue in simple language so that everyone will be able to judge for himself whether the judge is doing the right thing or not.

Lord Denning was famous for explaining difficult law in such a way that any lay reader can understand it. Now that they know how to judge the judges by reading my articles, they could, if they thought they have been short-changed by the judges, do the same thing as was done by the electorate in 1906 England. They have the power to change the government of the day by their vote in the next general election.

The opposition, in order to get the people’s vote, could pledge to undo all the wrongs done to the community by the judges. They could pledge that if they were given the mandate of the people to form the next government, they would pass an Act of Parliament to overrule such unjust decisions of the Federal Court such as Adorna Properties vs Boonsorm Boonyanit, the Asean Security Mills, PP vs Datuk Seri Anwar Ibrahim as well as all the decisions of the Federal Court pertaining to the Perak constitutional crisis which were not decided according to law — where the court had blatantly refused to apply Article 72 of the Federal Constitution.

They could also pledge to remove the errant judges from office. This is how it could be done.

In “What Next in the Law”, Lord Denning said, page 319: “Parliament is supreme. Every law enacted by Parliament must be obeyed to the letter. No matter how unreasonable or unjust it may be, nevertheless, the judges have no option. They must apply the statute as it stands.”

Yet the errant judges, especially the five in the Federal Court, have refused to apply Article 72 of the Federal Constitution as it stands.

In his book, “The Judiciary in Malaysia” (Asia Pacific Publications Sdn Bhd, 1994) the then Chief Justice of Malaysia Tun Abdul Hamid Omar said, page 88: “… the provisions dealing with the removal of judges in pursuance of an address in Parliament … was modified to provide for a special tribunal to be established for the removal of judges.”

That is incorrect. Actually Article 125(3) of the Federal Constitution only applies to judges of the Federal Court.

At the time of the fracas between the then Lord President Tun Salleh Abbas and Prime Minister Datuk Seri Dr Mahathir Mohamad in 1988, Article 125(3) of the Federal Constitution provides for the removal of judges of the Federal Court on the ground of “misbehaviour or of inability”.

Article 125(3) and (4) reads:

“125(3) If the Prime Minister, or the Lord President after consulting the Prime Minister, represents to the Yang di-Pertuan Agong that a judge of the Federal Court ought to be removed on the ground of misbehaviour or on the ground of inability, from infirmity of body or mind or any other cause, properly to discharge the functions of his office, the Yang di-Pertuan Agong shall appoint a tribunal in accordance with Clause (4) and refer the representation to it; and may on the recommendation of the tribunal remove the judge from office.

“125(4) The said tribunal shall consist of not less than 5 persons who hold or have held office as a judge of the Federal Court, the Court of Appeal or a High Court or, if it appears to the Yang di-Pertuan Agong expedient to make such appointment, persons who hold or have held equivalent office in any other part of the Commonwealth, and shall be presided over by the member first in the following order, namely, the Chief Justice of the Federal Court, the President and the Chief Judges according to their precedence among themselves, and other members according to the order of their appointment to an office qualifying them for membership (the older coming before the younger of two members with appointments of the same date).”

The book “The Judiciary in Malaysia” said — this part is significant so do pay special attention to it — page 89: “Until the recent amendment in 1994, the grounds for the removal of a judge was ‘misbehaviour or of inability’, The Constitution (Amendment) Act 1994, however, substituted for the word ‘misbehaviour’, the words ‘any breach of any provision of the code of ethics prescribed under Clause 3A…’. The effect of this amendment is that, besides the inability, either from infirmity of body or mind, or any other cause, properly to discharge the functions of his office, a judge may be removed if he has breached the code of ethics prescribed for judges.

“Article 125(3A) provides that the code of ethics shall be observed by every judge, be it, the judge of the Federal Court, the Court of Appeal or the High Court.”

This is what Section 2 of the Judges’ Code of Ethics 1994 says:

“2(1) This Code of Ethics shall apply to a judge throughout the period of his service.

“2(2) The breach of any provision of this Code of Ethics may constitute a ground for the removal of a judge from office.”

So now we all know that any serving judge could be removed from office for a breach of any provision of the Judges’ Code of Ethics 1994.

Section 3(1)(d) is the provision in the Code of Ethics to apply against the errant judges. It reads: A judge shall not conduct himself dishonestly or in such a manner as to bring the Judiciary into disrepute or to bring discredit thereto”.

I think the words in Section 3(1)(d) are clear enough — we all know what they mean. So that if a judge brings the judiciary into disrepute or discredit, as the errant judges have done by not administering justice according to law, they could be removed from office under this provision. It’s a bit harsh, but it can be done.

Pakatan Rakyat courts Chua Soi Lek

By Deborah Loh

thenutgraph.com

PETALING JAYA, 30 April 2009: MCA deputy president Datuk Seri Dr Chua Soi Lek has publicly admitted for the first time that…

More ▼

By Deborah Loh

thenutgraph.com

PETALING JAYA, 30 April 2009: MCA deputy president Datuk Seri Dr Chua Soi Lek has publicly admitted for the first time that he is being courted by Pakatan Rakyat parties.

He has been turning the idea of defecting over and over in his mind ever since it was proposed following the sex video scandal that resulted in his resignation from all party and government posts in January 2008.

Blogs have been speculating about the possibility of Chua leaving the MCA and Barisan Nasional (BN), but the former health minister has yet to make up his mind. He has, however, no qualms speaking openly about it.

"There are approaches made to me to jump ship. I should not deny it, because sooner or later this thing will come out in the open," he told The Nut Graph in an exclusive interview yesterday.

He said he has also received suggestions that his son, Labis Member of Parliament (MP) Chua Tee Yong, should quit the party as well.

"[Leaving the party was one of the] many options being tossed around. That's true. A lot of people have seen me quietly. A lot of people also want me to persuade my son to resign as an MP, thereby forcing a by-election.

"And since Johor has always been regarded as the fortress of the BN, that would be a good testing ground," he said.

Chua said he has not yet considered which party he would join if he left the MCA. He declined to reveal which parties had approached him.

"The options are very limited," he noted.

Breaking point?

Despite the sex video scandal, Chua is more tenacious than his opponents may have bargained for. He has definitely not faded into political oblivion. Indeed, he was returned uncontested as the MCA Batu Pahat division chief in the divisional polls last July.

Ong Tee Keat In the October party polls, his popularity was again proven when he beat then secretary-general Datuk Seri Ong Ka Chuan in the deputy president's contest. Despite his political comeback within the MCA, the offers for him to join another party have continued as the rift between him and president Datuk Seri Ong Tee Keat remains open.

Even after coming clean about his sex scandal, Chua has been criticised by Ong for being morally tainted. The war of words between the two leaders went on right up to the party elections.

Chua was considered effectively sidelined when Ong, as the new president, gave him the newly formed Government Policy Monitoring bureau, while excluding him from the Johor MCA line-up.

Despite Ong's denials that he was isolating Chua, the deputy president now feels his role in the MCA is diminished. Chua said his position as head of the bureau required him to be critical, but his comments were not accepted.

"I'm willing to resign [from the bureau]. My character is such that if I cannot function in a role that I'm given, I'm willing, and I'm seriously considering resigning," he said.

Torn

Noncommittal about when he would decide to leave the MCA, Chua said the recent spate of by-elections has kept him with the party because of his loyalties to the BN.

"This is the party where I've spent over 20 years. As a party man, when it's time to contribute to the party, I should do it. During the recent by-elections, I played a role. It's not good for me to jump ship just like that; people will say you are just an opportunist."

But the writing appears to be on the wall, and Chua admitted that he is at a crossroads.

"I don't jump ship because I'm disgruntled and unhappy. I don't think I will do that. I will jump ship only when I find I have no meaningful role to play," he said.

TNG: Tell us about your role as head of your party's government policy-monitoring bureau.

Chua: You can say my role is very limited despite being the second man in the second largest component party. Limited in the sense that I do not hold any government post.

As for being chairman of the monitoring bureau, I used to be very active the first three months. After that I found that by being critical of other people, somehow or other people don't take kindly to me. They think I have a very personal agenda. So I thought, if society is like that, they don't want others to be critical, then I come to accept the fact that I should be more toned down.

So, how is the bureau functioning now?

I must admit that it's not been functioning in the last four months.

You're saying this in public?

Oh, it's okay, I'm even willing to resign. My character is such that if I cannot function in a role that I'm given, I'm willing, and I'm seriously considering resigning.

You aside, the bureau has an important function?

It has a role to play if people can take it in an open-minded manner. But the problem is when I open my mouth, people say I have a personal agenda.

So the problem is how you're still perceived in the party.

Ya, and I don't want to fight against this perception all my life lah. Why should I want to?

Other than that, what has it been like since you were elected deputy president?

Very free. I only attend presidential council and central committee meetings. Nobody refers anything to me nowadays.

Ultimately how does that make you feel?

I don't feel upset. I feel that the time has come when people assign you that role which is a no-role, then I play the no-role business lah.

Are there restrictions placed on you?

There are no restrictions, but everything is very subtle. I give you an example: when the government imposed double the levy on foreign workers in certain sectors of the economy, don't you think this matter comes under the party's government policy-monitoring bureau? And yet the presidential council makes a decision to leave it to the Public Complaints Bureau. So I'm not going to fight with people to work.

Another example is how my son (Tee Yong) and [I] worked together on a proposal for the government to take over PLUS. My son was also invited to make a presentation to the presidential council. After that I thought the party would say, that as the head of the bureau, I should be heading the task force. But I'm not; the party appointed a different person.

So the gist of it [is], I'm not going to fight with people to work. If people want to put up obstacles in a very subtle and clever way so that I cannot function properly, then let it be.

Journalists surrounding Chua after he was elected MCA deputy president.
Behind him, in glasses, is his son Tee Yong

In the light of all this, there were internet rumours that you might leave the party.

There are many options being tossed around, and one of the options is to leave the party. That's true. A lot of people have seen me quietly. A lot of people also want me to persuade my son to resign as an MP, thereby forcing a by-election. And since Johor has always been regarded as the fortress of the BN, that would be a good testing ground.

And your reaction to these suggestions?

I've been a party man for nearly 25 years. I have to give deep thoughts to these suggestions before making any final decision. As for my son, I always leave it to him to decide. Because there are people telling my son that however hard you work, chances are you might not even be the candidate the next round.

If you leave, which party would you join?

I've not given serious consideration to it. But the options are very limited also.

Which is the most attractive party?

I think they're all almost the same, nowadays. It's either PKR or the DAP.

If you leave, how many would go along with you?

There are also different schools of thought. That you should not go with a big hoo-ha. There are people who believe that some will want to leave, and some will want to stay back so as to sabotage the party machinery.

You understand how party politics is played out? Once you leave you got no more influence in the party already. So you should leave some people behind, so that when you go there is still a link in between.

How long ago were these suggestions made?

Oh, a long time. People have been approaching me. After the video scandal, and after I won the deputy presidency also, and then it became more of late.

Why is it heating up again of late?

Well, they feel that maybe I'm one of those disgruntled candidates who can jump ship. But I don't jump ship because I'm disgruntled and not happy. I don't think I will do that. I will jump ship only when I find I have no meaningful role to play.

That's already happening?

I can see that it is slowly happening.

So you will wait till it reaches a certain point?

There's a limit to everyone's tolerance.

Where is your level now?

I don't know, there is no level like the World Health Organisation pandemic type of level, level one to level six.

You're saying you've been approached by the opposition?

Oh yes, it's true.

Can you be specific?

No, I will not mention names. It was all done in the confidence of trust. And people know that I'm trustworthy and I don't reveal people.

You're being very open about this, are you trying to send a message?

I've always been open, even about my personal life.

Even the president knows you might want to leave?

I don't know that.

How is your relationship with him?

We have a meeting relationship. A working relationship. That's all. There's discussion on a needs basis, whenever there is a meeting. I will only speak when I need to. I'm not good at apple-polishing people. It's not my character to initiate and talk and curry favour. No, I'm not good at that.

When will you come to a decision about leaving?

When the time is right.

What factors must happen?

Oh, so many factors. One is if I feel I cannot contribute meaningfully to the party anymore, then why should I warm the seat?

But it's already like that, you're just warming the seat.

It's because during the by-election I played some role. As a party man, when it's time to contribute to the party, I should do it. There are so many by-elections, if I jump ship, people think I'm just being an opportunist.

So you'll help the BN in Penanti...

It's like this, if there is a by-election, I should not do anything to destabilise the BN, at least.

You sound caught, still loyal to the BN, but torn about going over to the other side.

There are approaches made to me to jump ship. I should not deny it, because sooner or later this thing will come out in the open.

So you're weighing...

This is the party where I spent 20 over years. It's just like a marriage. Some marriages don't last 25 years. I've been ketua bahagian of Batu Pahat since 1985 till now.

You would leave the MCA and the BN just because you don't have a role in the party?

When you reach a junction, you have to decide whether you want to turn left, turn right or go straight.

Your decision to leave, would it be about you yourself or the BN?

It's not about me alone, how much weight do I have? Maybe within the party and the BN there are some who will say "good riddance to bad rubbish". They may think that I'm a liability, as what some MCA people think I am. After the election, the MCA integrity watch group said I should step down, after I had won.

If you leave, would it be because you feel you could serve society in a better capacity elsewhere?

I've always been a politician from the 1980s to now, and I'm still keen to serve. If I cannot find a meaningful role to play, then I may have to seek a different platform. Simple as that.

It's not that you are being sidelined?

No. When I came back and I won, I never said I want to be a minister. It's only the Chinese press who played it up. I only said whether I'm in or not, I want my president to be very frank with me. Because I'm frank with others.

The forgotten children in Malaysia

The plight of refugee children in Malaysia is a sad one. They are among the forgotten children in our land.

It is time the government does something about this. Even…

More ▼

Brits reconsider dropping batang Kali massacre probe

The Star
By FLORENCE A. SAMY

KUALA LUMPUR: Britain has reconsidered its decision not to hold an inquiry or further investigation into the 1948 Batang Kali massacre of unarmed villagers…

More ▼

The Star
By FLORENCE A. SAMY

KUALA LUMPUR: Britain has reconsidered its decision not to hold an inquiry or further investigation into the 1948 Batang Kali massacre of unarmed villagers by British troops.

However, in its letter dated April 24, the British government said the decision should not be taken as “any indication, one way or the other, whether an inquiry will be established or other investigation undertaken.”

Coordinator of the Action Committee Condemning the Batang Kali Massacre, Quek Ngee Meng, said he welcomed the decision to reconsider their inquiry petition which was initially rejected on Jan 21.

However, he said the committee and Tham Yong, a surviving family member, could not accept the British government’s reply that the outcome of the reconsideration would only be known within the next few months.

“Such a long and uncertain period of determination is either a genuine typo error on the part of the Secretaries of State or they are simply dragging time unnecessary to the detriment of the surviving families,” he said at a press conference Wednesday.

In December 1948, 14 members of the Scots Guards shot dead 24 villagers thinking that they were communists. This was a crackdown against the communist insurgency.

Tham Yong is the surviving wife of Chong Fong, the lone survivor who died last year aged 82. Chong Fong, then 22, survived the massacre as the guards presumed he was dead after he had fainted and lost consciousness.

Quek said a Queen’s Counsel was assisting the surviving families who were seeking an inquiry, public apology and reasonable compensation according to international humanitarian standards.

He said Tham Yong’s lawyer had written a letter on Monday urging the British government to complete the reconsideration process within six weeks.

“We gave them a deadline by the end of UK business time today (Wednesday) to reply to our letter,” he said.

Time was of the essence, he said, as most witnesses were in their twilight years and wanted to see justice done before they die.

“There is an absolute urgency in the matter as most witnesses may not be able to wait for justice to be restored. Justice delayed is justice denied,” he added.

One witness, Wong Kum Sooi, who was 11 when the incident happened, died last Friday. He had lost his father and uncle in the killing, he said.

Quek said there were now a total of 13 witness, namely nine former Scots Guards and four local witnesses, aged between 69 and 78.

MCA’s Public Services and Complaints Department head Datuk Michael Chong who was also present, said they wanted justice not revenge.

“Time is running out for us. We hope the witnesses can see justice done before they die and that the surviving families can finally have some form of closure after more than 60 years,” he added.

Interest on the massacre was re-ignited in 1992 with a BBC documentary entitled In Cold Blood which featured fresh evidence including confessions by former Scots Guards and testimonies by survivors and witnesses.

Anwar trains his sights on 1Malaysia

From The Malaysian Insider

KUALA LUMPUR, April 30 — Opposition icon Anwar Ibrahim has ripped into the Najib administration’s 1Malaysia concept, calling it cosmetic and nothing more than a bald-faced…

More ▼

From The Malaysian Insider

KUALA LUMPUR, April 30 — Opposition icon Anwar Ibrahim has ripped into the Najib administration’s 1Malaysia concept, calling it cosmetic and nothing more than a bald-faced political move to try and win back support from non-Malays.

This is the first time that the leader of Pakatan Rakyat has come out in such strong terms against Datuk Seri Najib Razak’s main theme since he became Prime Minister on April 3.

Other Opposition politicians have questioned what 1Malaysia really means but Anwar gutted the whole concept, pointing out that Najib’s comments about unity and togetherness are only for public consumption.

Behind the scenes, the Biro Tatanegara (BTN) is still continuing their indoctrination programmes for Malay civil servants and politicians, telling Malays to be wary of Chinese and Indians.

Anwar’s attack on the 1 Malaysia concept also betrays a growing uneasiness among the Opposition on Barisan Nasional’s charm offensive to regain the support of non-Malay voters, the segment of voters who since Election 2008 have become a reliable vote bank for Pakatan Rakyat.

The support among Chinese and Indians for the Opposition has grown steadily since March 8 last year as a result of frustration over excesses of Umno, abuses under the New Economic Policy and lack of respect for the rights of non-Malays.

Faced with the real possibility of losing more ground with this important constituency and sensing that the fracture of race relations was reaching a dangerous stage, Najib’s team cobbled together the 1Malaysia platform.

It has yet to be fleshed out but the concept promotes the idea that all Malaysians should feel as one and that no one will be left behind, regardless of race and religion.

The new administration has also liberalised the financial services sector and attempted to solve the thorny issues of conversion of children to Islam when marriages breakdown.

Nothing has been said about dismantling the NEP or spelling out how equality can be achieved among Malaysians with the main architecture of affirmative action is still in place and the Malay-centric civil service calling the shots at implementation stage.

In his latest blog posting, Anwar noted that Umno called Pakatan Rakyat the tool of the Chinese and also hammered the DAP as a chauvinist party for its Malaysian Malaysia concept.

“Now finding that the support of Chinese and Indians to Umno-BN is dropping drastically, we hear the slogan 1Malaysia being used.

“If we delve more deeply into this concept, we find that what is practised is only cosmetic or botox. The liberalisation is only to win over rich Chinese entrepreneurs but will have no impact on the projects and contracts of their cronies,” he said, adding that more pressing issues of leakages, transparency and corruption were not addressed under the 1Malaysia slogan.

In contrast, he noted the Malaysian Economic Agenda promoted by Pakatan Rakyat focused on what was good for the common man, especially the underprivileged Malay-Bumiputeras, Chinese and Indians.

Anwar wondered how it was possible to talk about 1Malaysia when the reality on the ground was so different. He zoomed in on the courses run by BTN, a unit in the Prime Minister’s Department.

In the mainstream media the talk is about unity under 1Malaysia but in the BTN courses they push narrow Malay interests and slam politicians like Anwar and Pas spiritual leader Nik Aziz Nik Mat for working with other races, Anwar said.

He wondered why BTN blamed other races and not the big criminals and corrupt individuals who have caused Malays to face hardship after 50 years of Umno rule.

Anwar’s sniping has set the tempo for the Opposition’s campaign to puncture the 1Malaysia concept. It could also spark a race between BN and the Opposition to prove their Malaysian credentials.

1Malaysia: Sekadar Kosmetik dan Lunak Retorik!

“Kita Anak Malaysia, Satu Malaysia”

………

Laungan di atas cukup melunakkan setelah Pakatan Rakyat difitnah sebagai alat Cina!

Setelah didapati dukungan Cina dan India terhadap Umno-BN merosot parah, maka dikumandangkan…

More ▼

Umno Political Bureau Meeting Postponed

KUALA LUMPUR, April 30 (Bernama) -- The Umno political bureau meeting, scheduled for today, has been postponed to this coming Monday.

Umno secretary-general Datuk Seri Tengku Adnan…

More ▼

Scenes of Monahara

Muslim groups upset with religious conversion ruling

By Asrul Hadi Abdullah Sani - The Malaysian Insider

KUALA LUMPUR, April 29 — Pembela, a coalition of Muslim NGOs, today condemned the cabinet’s recent decision on religious conversion of…

More ▼

By Asrul Hadi Abdullah Sani - The Malaysian Insider

KUALA LUMPUR, April 29 — Pembela, a coalition of Muslim NGOs, today condemned the cabinet’s recent decision on religious conversion of children, calling it unconstitutional and irrational.

The Muslim NGO’s criticism of the decision could prove tricky for Datuk Seri Najib Razak as he attempts to balance the interest of Muslim and non-Muslim groups.

The cabinet recently decided that children should be raised in the faith of their parents while they were married even if one spouse becomes a Muslim.

“We totally disagree because of the way they made the statement. Unless there are amendments to the constitution then the statement made is not law.

“However, they have made it seem that when a minister says something then it is law, This is one of the issues which can bring doubts to some parties,” said Muslim Youth Movement of Malaysia’s president Yusri Mohamad.

He told reporters that the decision made goes against Islamic laws and the constitution.

“In article 12 section 4 in the constitution, the faith of a child who is not yet an adult is determined by the parents. The courts has interpreted that the parents has to right to decide regardless if they are the husband or wife,” Yusri added.

Pembela believes the cabinet ruling will deny the parent who converts to Islam his or her right and responsibility over the future of the children. They feel that the decision is not fair to those who want to convert to Islam

The group also feels that the government was rushed into making a decision on the issue when it should have been conducted properly with collaboration of all parties. The group reiterated that this issue should not be sensationalized because it would not be healthy for the country.

“We should address it professionally with a cool head and objectively. We have procedures and processes in place. I would like to highlight that there has been a high level discussion organized by the attorney general.”

The government had asked the attorney general to hold a series of discussion with religious experts and NGOs.

“I would like to ask what has happened to those discussions? Why did the cabinet suddenly make a decision which actually is hard to accept by everybody. What was recommended by the cabinet is not sustainable,” he argued.

Yusri urged all parties to consider the realities of the country and not have an attitude that will make the situation worse. He was disappointed that many Malaysians think that a non-Muslim would not be able to get a fair trial in a Shariah court.

“This is not helpful and we will not be quiet if the Shariah court is given that image. The notion that a Shariah court will not give a fair trial to non-Muslims is a blatant and an unacceptable accusation,” he said.

Jamaah Islah Malaysia (JIM) president Zaid Kamaruddin also added that the decision was one sided and pleased only a minority in the country.

“The cabinet has not taken account the opinions of the majority. We also would like to complain that the decision was irrational. We understand the Muslim’s fuse is a bit long, that is why there are many who are still patient because they believe that the government can solve this issue.”

“But in this context, we see that it going against Islam and we have yet to receive a reaction from the Cabinet after the incident has happened. This is not a solution to this problem,” Zaid said.

If Party Needs Me, Party Has To Push Me.

By Sheih Kickdefella

Jika sekiranya arah tuju PAS dapat diperjelaskan dan tidak ada keraguan tentang hubungan hubungan sulit PAS dan UMNO, saya rasa tidak ada sebab besar untuk saya bertanding…

More ▼

Yusri, debate the issue?

By Haris Ibrahim

In my ‘The law doesn’t need fixing…’ post yesterday, I stated a view that the cabinet’s call for the AG to look into amending the requisite civil…

More ▼

The law doesn’t need fixing, dummy! The problem lies with some legal minds in high places.

By Haris Ibrahim

I was in the Court of Appeal yesterday to hold a watching brief for 5 women NGOs in the Shamala appeal.

Malaysiakini has a report of the…

More ▼

By Haris Ibrahim

I was in the Court of Appeal yesterday to hold a watching brief for 5 women NGOs in the Shamala appeal.

Malaysiakini has a report of the proceedings yesterday where, by consent of all parties concerned, the Court of Appeal referred 5 questions of constitutional importance to the Federal Court.

Shamala’s case is not dissimilar with the more recent case of kindergarten teacher, M Indira Gandhi, whose ‘convert to Islam’ husband K Patmanathan converted their three children, the youngest being a one-year-old girl, without her knowledge.

Malaysiakini also reported last week that the government has now moved to ban secret conversions of minor children by one spouse whilst the other remains completely in the dark.

Whether the government has the moral conviction to carry this ban through remains to be seen.

What really left me flabbergasted was the report in the second Malaysiakini report mentioned above that Nazri had said that the “attorney-general will review the civil laws that needed to be amended, but that any change to Islamic law would have to be discussed with the sultans of Malaysia’s states, who are the guardians of the religion”.

So typical to turn attention away from the real problem!

If Nazri would take the trouble to look up the civil laws presently in place, he’d see that there’s nothing in those laws that need fixing.

That’s provided Nazri’s sincerely looking to resolve the problem of unilateral conversions of minor children by a ‘convert to Islam’ spouse.

In December, 2002, in the case of Chang Ah Mee, decided by Justice Ian Chin in the High Court in Sabah, the issue of unilateral conversion of a minor child to Islam by a ‘convert to Islam’ spouse arose for consideration.

Justice Ian Chin held the conversion of the minor child, aged 2 at the time of the alleged conversion, to be null and void.

Sabah’s Administration of Islamic Law Enactment 1992 has a section 68 which provides : “For the purpose of this Part, a person who is not a Muslim may convert to Islam if he attains the age of baligh according to Islamic Law and provided that if a person is below eighteen (18) years of age consent shall be obtained from the parents or his guardian”.

Justice Ian Chin made the following observation of an concerning ‘parents’ in section 68 : “The term “parents” mentioned in that section is in the plural which literal and ordinary interpretation means the father and the mother (or persons acting as such) while the singular form would mean either the father or the mother. But that section also confer upon a guardian the right to give consent. The conjunction “or” indicates that either the parents or the guardian could give consent. The term “guardian” and his duties are dealt with extensively by the Guardianship of Infants Ordinance (Cap. 54) which contain provisions for the guardianship of infants. Before the amendment on 1 September 1999, s. 5 of the Ordinance gave the father the primary right over the person and property of an infant but the amendment gave both the father and the mother the same and equal right but such right equal right is illusory unless it means that the husband and the wife must exercise them jointly, that is, it cannot be exercised by the one without the other save when the other has died. Therefore when the Administration of Islamic Law Enactment 1992, s. 68, refers to a guardian, it must be taken to mean both the mother and the father as they have equal right under the Guardianship of Infants Ordinance”.

Article 12(3) of the Federal Constitution provides that “No person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own” whilst Clause (4) of the same Article clarifies that “For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian”.

Article 75 of the Federal Constitution provides : “If any State law is inconsistent with a federal law, the federal law shall prevail and the State aw shall, to the extent of the inconsistency, be void”.

Now, please take note that section 68 of Administration of Islamic Law Enactment 1992, which is a state law, has ‘parents’ whilst Article 12(4) has ‘parent’.

Lawyers acting for the ‘convert to Islam’ spouse sought to argue that argue that section 68, when it requires the consent of both parents is inconsistent with art. 12(4) which requires the consent of a parent and that when an inconsistency occurs between state and federal law, in accordance with Article 75, the Constitution prevails. Section 68 and ‘parents’, being part of state law, must give way to ‘parent’ under Article 12(4), they argued. Thus, “parents” in the Enactment” shall have to be read as “parent”, lawyers for the ‘convert to Islam’ spouse submitted.

Justice Ian Chin did not buy this argument.

This is what the learned judge said : “The Constitution does not discriminate against the sexes and since the father and the mother have equal right over the person and property of an infant, the term “parent” in art. 12(4) must necessarily mean both the father and the mother if both are living. To construe otherwise would mean depriving, for example, a mother of her right as a parent to chose the religion of the infant under art. 12(4), if the father alone decides on the religion to be followed by the infant. To allow just the father or the mother to chose the religion would invariably mean depriving the other of the constitutional right under art. 12(4). Therefore, the term “parents” used in s. 68 does not conflict with art. 12(4) as art. 12(4) confers the right on both the father and the mother (when they are both living)”.

That, in my view, was a sound and sane construction of two provisions of two different pieces of written law to harmonise a seeming contradiction.

A little over a year later, in the Shamala case that is now before the Court of Appeal, Justice Faiza Thamby Chik was called to determine the similar question that vexed Justice Ian Chin in Chang Ah Mee.

In Shamala’s case, the relevant syariah law was section 95(b) of the Administration of Islamic Law (Federal Territories) Act 1993 which provided that a person who is not a Muslim may convert into Islam if he is of sound mind and if he has not attained the age of 18 years, his parent or guardian consents to his conversion. Note that this stated ‘parent’ as opposed to ‘parents’ in the Sabah enacment.

Justice Faiza disagreed with Ian Chin’s construction of ‘parent’ in Article 12(4). This is what Faiza said :

“With respect I do not agree with such an interpretation on art. 12(4) made by my learned brother colleague. It is to be noted that s. 68 of the Sabah Administration of Islamic Laws Enactment 1992 uses the word “parents”. It is spelt “p-a-r-e-n-t-s” in the plural sense, whereas art. 12(4) of the Federal Constitution uses the word “parent”. It is spelt “p-a-r-e-n-t” without the alphabet “s”. It is used in the singular sense. In the first place the said interpretation is not consistent with normal rules which govern the reading and interpretation of an Act of Parliament. Let me explain. Consider s. 95(b) of the Administration of Islamic Law (Federal Territories) Act 1993 and art. 12(4) of the Federal Constitution. In the present case the wife in fact referred to s. 95(b) arguing that this section requires her consent for the conversion of her two minors into Islam. Section 95(b) provides for the purpose of capacity to convert into Islam, and states that a person who is not a Muslim may convert into Islam if he is of sound mind and if he has not attained the age of 18 years, his parent or guardian consents to his conversion. It is noteworthy that the phrase used is “his parent or guardian consents”. Article 12(4) used the phrase “be decided by his parent or guardian”. The determiner used is “his”. This word “his” that comes before the noun “parent or guardian” limits its meaning. Black’s Law Dictionary Abridged6th edn (Centennial Edition 1891-1991) defines the word “parent” as “the lawful father or mother of a person” and the word “guardian” as “a person lawfully invested with the power and responsibility for the care and management of the person or the estate or both of a child during its minority”. It is instructive to note that the noun “parent” or “guardian” is defined in the singular. Parent is either a “father or a mother” and “guardian is a person lawfully invested with …”. The term “determiner” is used frequently in modern grammars. The noun in the phrase here is singular. Therefore the singular verb “consents” in s. 95(b) is used since both nouns “parent” and “guardian” are singular. The two nouns that share a singular verb are linked by “or” and grammatically the verb agrees with whichever part is closest to it. In the phrase under discussion both subjects are singular. Hence the present tense singular verb “consents” is used. It is also true of art. 12(4). Both nouns “parent” and “guardian” are singular and the determiner used is “his”. Either his parent or his guardian consents to his conversion. The meaning of the words is plain, the plain meaning rule is applied. My interpretation of the words “parent and guardian” gains strength when it is considered in the light of Act 351. Section 6(1) of Act 351 states ‘on the death of a parent of an infant, the surviving parent, … shall be guardian to the infant either alone or jointly with any guardian appointed …”. It is to be noted that the legislature uses the terms “parent and guardian” in the singular sense since both nouns are singular. The determiner “a” (parent) is used. I must stress here this involves vested rights. “Statutes should be interpreted, if possible, so as to respect vested rights.” Indeed: “If a vested right is to be defeated, the section must plainly say so. This rule has been stated by the courts over and over again” (see the book entitled “How to understand an Act of Parliament”6th edn. by Kenneth H.G. Gifford and D.J. Gifford, p. 143). In Section 5 of Act 351 where it refers to equality of parental rights, sub-s. (1) plainly states “… a mother shall have the same rights and authority as the law allows to a father …”. And such a provision I think is to be strictly construed and applied. The plain meaning rule is a very simple rule. It means what it says. If the meaning of the Act is plain, it is to be given that plain meaning. “Where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature.” Its words must be given “the plain and ordinary meaning of the word applying to them the appropriate grammatical rules” (Chapter 21 ibid/ib). The words used in s. 95(b) of Act 505 are clear. The consent of a single parent is enough to validate the conversion of a minor. Any other interpretation would give an unjust result. It may lead into adopting a forced meaning that s. 95(b) does not bear and the plain meaning rule will not allow”.

Justice Faiza’s pronouncement of the law reminds of a warning issued by the Privy Council in an appeal that emanated from New Zealand some years back : that you cannot refine the law in the process of its interpretation and application to the point where the law becomes an ass.

Dad in the dark as sons converted to Islam

By Malaysiakini,

For the last 10 months, gardener T Darma Kanu has been searching in vain for his two young sons after his wife left their home in Ipoh with…

More ▼

Mother of three murder tied to vicious attack on husband

NST, April 29 2009

The murder of a woman in front of her house here on Monday is believed to be related to a similar attack on her husband two…

More ▼

Religious dept just as lost as Indira

NST, April 29 2009

IPOH: Even the Perak religious department claims to be in the dark on the whereabouts of K. Patmanathan, also known as Mohd Ridzuan Abdullah since his…

More ▼

NST, April 29 2009

IPOH: Even the Perak religious department claims to be in the dark on the whereabouts of K. Patmanathan, also known as Mohd Ridzuan Abdullah since his conversion to Islam on March 11.

Ipoh district police chief Assistant Commissioner Azisman Alias said Mohd Ridzuan last contacted religious officers on Friday, the day after the cabinet decided that children be raised according to the faith of their parents at the time of marriage, should a spouse decide to convert.

Mohd Ridzuan is believed to be keeping 1-year-old Prasana Diksa, despite the High Court granting interim custody to his wife, Indira Gandhi, early last week.

The religious department later reported that the syariah court had also granted interim custody of their children to Mohd Ridzuan two weeks earlier.

Azisman said the department told the police that it would be referring the matter to the state legal adviser, as the High Court order was in conflict with the order from the syariah court.
"They have to wait for instructions on which court order to follow."

Azisman said police were still monitoring Mohd Ridzu-an's house and his mother's house in Pasir Puteh, pointing out that he was still under police bail. But they would not arrest or force him to surrender Prasana Diksa to Indira.

"We will just inform the wife or the religious department," he said, adding that the court order was only for the police to assist in the matter.

Perak religious department director Datuk Mohamah Nor Mansor and state legal adviser Datuk Ahmad Kamal Md Shahid could not be contacted for comment.

On the failure to locate Mohd Ridzuan, Ipoh Barat member of parliament M. Kulasegaran alleged that there were parties who were keeping the 40-year-old father in a "safe place" to sabotage efforts to serve him the court order.

When contacted yesterday, Indira said there was no news of her estranged husband, despite having pasted 5,000 posters of him and her daughter in various parts of the country.

"There were some people who also volunteered to put up more posters in Penang."

********
The Star

Wednesday April 29, 2009

Indira gets many calls offering hope

IPOH: She put out the call, asking for information on her missing infant, but all that kindergarten teacher M. Indira Gandhi is getting now are calls offering encouragement.

Indira, 34, who on Monday headed a poster campaign to look for her estranged husband K. Patmanathan, 40, and year-old daughter Prasana Diksa, said the calls did not provide information on the duo’s whereabouts.

“The callers give words of encouragement and told us not to give up hope in our search for them,” she said when contacted here yesterday.

“I thank the callers for their encouragement but we really need information on my baby’s whereabouts,” she said, noting that there were also calls for the posters to be distributed to other states.

Her lawyer M. Kulasegaran said following the putting up of the posters, they had received at least 15 calls.

“I would say the response has been good,” he said.

“The family is, however, happy that something is being done to help locate the infant,” he said.

Kulasegaran believed that Patmanathan and Prasana are in Ipoh and that they are being “protected” by someone to sabotage the Ipoh High Court’s order.

The Ipoh High Court had on April 24 given Indira interim custody of her three children and an injunction preventing Patmanathan from entering their home.

On Perak Mufti Datuk Seri Harusani Zakaria’s recent statement that Patmanathan had received an interim order from the Syariah Court to keep Prasana, Kulasegaran said it was against the Cabinet’s directive.

Thursday, 30 April 2009

A by-election in Selangor? - Malaysiakini

They will all go to hell, but you might end up joining them

What if the shoe was on the other foot?

Usurper Zambry plotting 2nd unethical, undemocratic, illegal power grab to remove Perak Speaker Sivakumar

N.H. Chan: An inconvenient judge

Pakatan Rakyat courts Chua Soi Lek

The forgotten children in Malaysia

Brits reconsider dropping batang Kali massacre probe

Anwar trains his sights on 1Malaysia

1Malaysia: Sekadar Kosmetik dan Lunak Retorik!

Umno Political Bureau Meeting Postponed

Scenes of Monahara

Muslim groups upset with religious conversion ruling

If Party Needs Me, Party Has To Push Me.

Jika sekiranya arah tuju PAS dapat diperjelaskan dan tidak ada keraguan tentang hubungan hubungan sulit PAS dan UMNO, saya rasa tidak ada sebab besar untuk saya bertanding…

Yusri, debate the issue?

The law doesn’t need fixing, dummy! The problem lies with some legal minds in high places.

Dad in the dark as sons converted to Islam

Mother of three murder tied to vicious attack on husband

Religious dept just as lost as Indira

Wednesday April 29, 2009

Indira gets many calls offering hope

Latest News

Unruly scenes unfold in video clip

Archive