The Lina Joy Issue June 10, 2007
Posted by rahulian in Human Rights, Malaysia.1 comment so far
In my previous blog, ‘Lawmakers Must Step In and Find Solution’ (see below), I have asked that a Parliamentary Select Committee is set up in order to discuss how to solve problems of religious nature.
The case of Lina Joy is another example of how difficult and complex the situation can become. There seems to be a major uproar among the non-Muslims in Malaysia when the Federal Court decided that the Lina Joy matter is to be heard in the Syariah Court and that is the right forum for such matters.
Instead of analysing the decision, many were quick to use this opportunity to undermine the judiciary and make this a political conspiracy. Before we jump to any conclusions, let us look at why the judges of the Federal Court decided the way they did. The contention was between Art. 11 and Art 121(1A) of the Federal Constitution.
Art. 11 contains the right to freedom of religion which, under the provision consisted of right to profess, to practice and to propagate one’s religion.
Art. 121(1A) states that,” The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.” The courts referred to under Clause (1) are the High Courts of Malaya and the High Courts of Sabah and Sarawak.
Both the provisions seem to be conflicting with each other. The judges cannot just make a decision by disregarding the historical and socio-political nature of these provisions. There are some exceptions to Art 11 especially Art 11 (4) which does not allow anyone propagating religions other than Islam to Muslims. There is also Art. 3 which, provides for Islam being the religion of the Federation.
In the High Court, it was said that Malays could not renounce Islam at all because they were defined by the Federal Constitution to be persons of the Islamic faith. According to the High Court, a Malay’s religion and beliefs are determined by birth, not by choice.
Keeping all these in mind including public order and the will of Parliament (it is a convention that the judges will always give way to statutes of Parliament), the only decision the judges could up with is to view Art. 121(1A) as an exception to Art. 11. The judges could not decide any other way because the socio-political reality of Malaysia is that we have a predominantly Muslim population.
The problem here I believe has nothing to do with Islam. The issue here is the government not being able to give a definitive answer as to the state of such matters. As I have written in my previous blog below, Parliament must step in to rectify the problem. Consultation must be done with all relevant authorities and a Parliamentary Select Committee would be a good place to start.
It has been said that there is still one more avenue left for Lina Joy, the Syariah courts. Many will argue that she does not practice Islam thus she’s a non-Muslim and should not adhere to the jurisdiction of the Syariah courts. However, we must bear in mind that though she may not practice Islam, she is still ‘technically’ a Muslim as far as her documentation in Malaysia goes. My point is why don’t we give the Syariah courts an opportunity to resolve the problem. Are we really that naïve to believe that the Syariah courts would not dispense justice?
We must also understand that all efforts will be taken by the Islamic council before someone is allowed to leave the religion. The same goes to all the religion. Some form of counselling will definitely take place. However, once it is affirmative that the person no longer believes or lives the live of a Muslim, I believe the Syariah court will do what is right and allow Lina Joy to leave the religion.
Instead of blaming that the judiciary is biased and controlled by the state, we should push the state for statutory reforms for issues such as this. It is Parliament that amended Art. 121(1A) in 1988 and it is only Parliament who could make the necessary changes. However, are they willing too?
Is Democracy Still A Reality June 7, 2007
Posted by rahulian in Asia, Free Press, Human Rights, Malaysia, Politics.add a comment
There was a time of kings and knights, a time of myths and legends and a time when ordinary people were unable to defend themselves. Democracy was a creature born out of the frustration that the people had to go through and the sufferings that they had to endure.
The concept of democracy has evolved from the time of the Roman ‘Republic’ to the very heart and nature of the Constitution and the Constitutional Monarchy of recent democracies. The world has seen claims by these very nations and many around the world that democracy exists and it is very alive today in the modern world we live in.
Do we really believe this is true? The only thing that seems to be true is that on one hand, the same nations talk about peace, poverty and global warming and on the other they suppress other nations, violate the most basic of human rights and some even sell arms to keep the world in check under their influence.
The longer these atrocities in countries like Sri Lanka, Palestine and Iraq keep taking place, the longer it will take the world to recover from terrorism. We must realise that terrorism is a global problem with a local identity. By its very nature, it can be seen that the tactics employed are very dangerous and many lives have been lost due to these kinds of activities.
However, the invasion of another country, or the interrogation tactics used by many nations of the developed world would not render them far away of tactics that are similar to these terrorists. These terrorists are the creation of the very nations that are trying to suppress it.
When the terrorists can be used for the benefits of the foreign policies of these controlling nations, they will be called allies in the fight against terror. Once they are of no use, they are labelled terrorists and the military machinery is set against them. Do these governments really believe people are so naïve?
The use of deadly tactics by the terrorists is unacceptable but at the same time what the controlling forces do is also unacceptable. The underlying problem must be addressed. The conflict can be solved only when there is a compromise. No one seems to care about the compromise. All that seems important is for their own bargain to stand. The only thing that will stand if this continues is a stale mate.
The United Nations by its very nature and literal translation suggest that it is the best forum for reform. However, the independence of the United Nations from the influence of certain member nations plays an important role in its ability to be un-bias and just. The world must truly believe that the United Nations is not just a tool for the powerful few but it is a real organisation with a real purpose. Its independent authority and its role as the sole mediator must be asserted. I am still wondering why the is a convention or an understanding that the head of the World Bank is to be from one specific block and the head of the International Monetary Fund is to be from another economic block. What happen to the best candidate gets the job in the democracy adage?
Without the independent authority of the most important independent democratic organisation of all, the world will not be able to be administered in the true form of democracy that our forefathers intended.
From a local point of view, the so called democracies have invested too much of power in the hands of the supreme leader. The concept and the notion of the separation of powers that was the cornerstone of democracy seem to be eroding with lightning speed. The fundamental importance that the executive, the legislature and the judiciary be separated cannot be taken lightly by any nation.
When the powers vested with the few becomes intolerable, a revolution will start as the people can no longer sustain the pain and suffering that they endure. History bears witness to that. Is the world waiting for another revolution before it makes some amends to improve the rights that have been wronged?
Like the United Nations in a global context, the Parliament of a nation can change things in the local context. A vote against an unjust government might just help tilt the fight between what is just and right, and what is extremism. People’s power must mean something or else we would be stuck in a vacuum where only the politically connected will succeed and the rest will be slave driven the modern way.
The Parliament is there in order to not only make laws, but to also hold the executive i.e. the Cabinet responsible for its actions. The select committees must be utilised to gain insights in to the operation of the governments. The judiciary, without its most powerful tool, the judicial review, or with the limited and controlled version of judicial review, will never be able to check on the government. How is a country going to be able to progress if the executive controls the legislature and the judiciary rendering the nation at its mercy?
The conclusion of all this is that the world will keep evolving whether we like it or not. Thus, we must also comprehend that without the necessary changes, the nation will be stuck in a vacuum for a long time and when they do decide to come out, it might be too late to save the last threads of democracy that has binded the nation together and naturally an economic freefall will take place.
Be More Disabled Friendly June 6, 2007
Posted by rahulian in Human Rights.add a comment
As Appeared In The Star Newspaper on 28 May 2007
In most if not all of the developed nations, it can be seen that they are always conscious to the needs of the disabled person. As you walk through a street in Central London, you will notice that the pavements are made for easy access, there are separate parking spaces for the disabled and all buildings have either a lift or a ramp for easy access.
This entire system of roads, pavements and buildings were not build in one day. It took many years and the efforts of those lobbying for these changes a long time ago. The most important thing about accepting change is the mindset. We must first understand and comprehend the hardships that are undergone by a disabled person. Those lobbyists changed their mindset and were able to make others understand why the changes needed to be done.
However, here in Malaysia, the disabled have a torrid time getting around as there is very little access for them. Most buildings have staircases but no ramps or lifts. Pavements are of different shape and sizes and the pavement does not open up as it hits the road to create a mini ramp. There have been some efforts done especially in Brickfields, Kuala Lumpur where the Malaysian Association for the Blind is. The pavements have been made with marks on them providing indications for the blind.
Most big buildings like the airport, KL Sentral train station and the large shopping malls have provided parking spaces for the disabled. However, you hardly find parking areas operated by the municipal councils to have spaces provided for the disabled. The mindset of these councils needs to be changed. If one council starts to improve things for the disabled, all the others will follow suit and it would not take long before an improved system is put in place throughout the country.
It is important for the laws of a country to reflect on the intentions of the people. There needs to be more adequate laws especially in the construction industry in order to protect the civil liberties of the disabled person. It must be made compulsory for commercial and government buildings to be built with specifications for disability access. As for the older buildings, the government should not renew business licences until the buildings are renovated for disability access.
Such a venture will cost time and money. However, the basic rights of the disabled person take precedence. The ball must start rolling from Parliament and our MPs should be more sensitive to these issues as the legislation can only come from them. Even if the laws are in place, great importance must be placed on the enforcement of these laws. The municipal councils and enforcement officers must aggressively carry out their duty.
All Malaysians would agree that we are all brought up with the notion to be kind to the disabled and most of us are. However, we only help them when we see them. Most of the disabled people can be independent and mange on their own if society provides all the necessary facilities and infrastructures for them.
Lawmakers Must Step In And Find Solution June 6, 2007
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As appeared in The Star Newspaper on Tuesday April 3, 2007
The Court of Appeal in asking a non-Muslim woman to seek recourse in the Syariah Court has created some confusion on what is actually the Supreme law of Malaysia. It is important to point out that we have a unique legal system in that there are two systems operating side by side. One is operating under the Federal Constitution and the other under the rules governed by Syariah law.
There have been previous cases of such nature and the first two that comes to mind are that of climber, Moorthi, after his death and S. Shamala who took her children and fled the country. It is not easy for the Courts to deal and decide on such matters as these matters are sensitive especially when living in a multiracial country.
In Pakistan, the law is to be read in consistent with Syariah law. Thus, the problems above would not arise. However, there are no specific provisions to suggest the above in our legal system. If there are no such provisions, then the judges of the Civil Courts are bound to follow the Federal Constitution.
The problem here cannot be solved by the Judiciary. This is a matter for the Parliament to decide. The root of the problem here is quite straight forward. Is Malaysia an Islamic country or a secular country? This is not a question that can be answered in terms of culture or politics. It is a serious legal question that has far reaching consequences. It is about time we, as responsible and prudent adults discuss this problem in a comprehensive and coherent way so as to find a just solution for all Malaysians.
It is not suggested that one system is better than the other. What is fundamental is that there should be no confusion. The law must be clear. We operate our entire lives under the legal sphere. Thus it is important that we know what we can and cannot do.
The longer we push the issue away, the bigger the problem becomes. We have come along way since our independence almost fifty years ago. Thus, it is urged that the legislature, who represents us, by consultation with the necessary parties, come up with a solution to this issue. A Parliamentary Select Committee would be a good place to start.
Consider Bribery Problems From All Angles June 6, 2007
Posted by rahulian in Human Rights.add a comment
As Appeared In The Star Newspaper 27 March 2007
CONGRATULATIONS to the Polis DiRaja Malaysia (PDRM) on its achievement in protecting this nation for 200 years. The force has come a long way since its inception and tragedies like Bukit Kepong to heroes like Yusoff Rono have undoubtedly made the force a reliable and respected one.
In the last few years, the police force has come under great scrutiny and it seems like where there is an opportunity, everyone takes a stab and blames the force. However, there are other underlying reasons why there is a problem in the force.
There are good cops and dishonest ones. It is the same in most parts of the world. The temptation i.e. monetary reward is very high. We must consider the root of this problem. In developed countries like Britain or Australia, the policemen are well paid and their salary scale is almost equivalent to that of the private sector.
This is not to say that there is no corruption in these countries. Corruption can be in many forms. Paying the police well does not fully eradicate the bribery problem. However, it reduces the chances of an officer getting tempted to do the wrong thing. A higher pay scale too will see better candidates applying for jobs in the force.
There is also the issue of the mentality of why go through the bureaucracy when you can pay and get your work done quickly.
If people are willing to give, there will be people willing to take – it is a matter of demand and supply. It is not going to be easy to change this kind of mentality. Education at grassroots levels might help but only time will tell.
It is hoped that the efforts of the current IGP in re-branding the force will ignite the fire that will change public perception of the force.
Parliamentary Priviledges June 6, 2007
Posted by rahulian in Politics.add a comment
13 September 2006
Though many of us sit and discuss politics and matters of governance often when we meet, many of us are still not fully aware of what can be said by members in or out of Parliament.
If Members of Parliament (MP) are not allowed to speak their mind in Parliament, then the voice of the very people they represent will not be heard. Thus it is acceptable that no libel suits should be brought against an MP for speaking in Parliament.
However, there are many MPs who give statements and speak to the press at the lobby of the Parliament building. This lobby may be in the Parliament building but one would think that it is not a part of the House i.e. debates take place inside the hall. The question arises, should the statements made here be allowed absolute privilege?
Being people of rational thinking and competent behaviour, we ought to be careful about what we say about others outside the designated areas. Why should anyone be different from everyone else? If I were to say something about you to a third person, then I should be responsible enough to take due care and be sure of the facts of what I am talking before I say anything. This should apply to all as the law is impartial and our liberties are protected and enshrined in the Federal Constitution of Malaysia.
It is not an easy task being an MP. However, like all of us out there, they should be responsible also for what they say outside the scope of the Parliament. If the Houses have already had a certain code of conduct for the behaviour of MPs outside Parliament, then well and good. If there isn’t, maybe it is time one is drawn up.
As Parliament is a forum for the voice of the people, its members should have absolute privilege as long as it is within the Houses of Parliament thus ensuring the liberties protected under the Constitution stay protected.
18 May 2007
Though absolute privilege is important inside Parliament, the behaviour of the two MPs recently making sexist remarks is appalling. The MPs should be given stern punishments not only because they were sexist, but also to show the world that we Malaysians do not condone such behaviour. The MPs must not forget that they represent all of us, regardless whether we are black, white, green, female or male.
Second Tsunami A reminder To Make The World A Better Place June 6, 2007
Posted by rahulian in Uncategorized.add a comment
As Appeared in The Star Newspaper on 20th July 2006
Mother Nature visited this part of the world again. The tragedy of the great tsunami still lingers fresh on everyone’s mind. The loss of many lives and the destruction of land and livestock had really shaken the world.
Have we learnt from the teaching of the devastation that took place on that faithful day in 2004 and the recent tragedy in Indonesia? It doesn’t seem so. We still take things for granted and live our lives as though there are many tomorrows waiting for us. The problem we face is one of procrastination. The attitude that there is always another day to do the work in hand has made many lose sight of the great importance of the sanctity of the human life. One great tsunami and there will be no tomorrow for many.
Moreover, many of us fail to realise the things that are important to us and let our lives pass us by. All of us wish to do something good for society and humanity but how many of us are actually doing it remains a grave reality. There are millions of charity organisations around the world helping the poor and the needy but are we doing our part by helping these organisations remain to be seen.
Help could be in many different forms, from monetary aid to physical labour work. It is the thought that counts. The mentality and culture must be changed in order for us to have a prosperous and happy world to share with others today and those of the future. If only every one of us puts in a little effort, the world could be a better place for all of us to live in.
It is said that charity begins at home. Let us be kind to our parents, siblings and friends. Help those in need. The world needs love and care not anger and war. Let the tsunami be a lesson to us so we can prepare ourselves now for a better future ahead.
Rape Within Marriage Should Be A Crime June 6, 2007
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10th July 2006
The debate on the amendments to the Penal Code and Criminal Procedure Code has brought up some excellent issues that reflect the changes in today’s society. All parties involved have debated the issues with great depth and mutual respect. Congratulations to the Parliamentary Select Committee and the NGOs.
Reference to the article ‘When rape within marriage is not a crime’, Sunday Star, 9th July 2006. Whenever we talk about the rape issue, we must always bear in mind that most cases are unreported as the wives are too scared to come forward. Without a deterrent and lengthy sentence, the fear of the perpetrator being released too early would constantly play on the minds of the wives.
As pointed out, the exception to the clause 375 of the Penal Code, which states, ‘sexual intercourse by a man with his own wife by a marriage which is valid under any written law for the time being in force, or is recognized in the Federation as valid, is not rape’ should be deleted.
The English Courts in R v R [1992] 1 A.C. 599, House of Lords have accepted that there could be rape within a marriage. Many other countries too have changed their laws to adapt to the changes in their societies. By virtue of being a statutory provision, the exception to the clause 375 would bind all judges as they must give effect to the will of the Parliament. This would tie their hands down and they might not be able to dispense justice as it may be fit. It is suggested that the ceiling for sentencing could be placed in the hands of Parliament, but judges should be given some flexibility in deciding and defining marital rape cases.
It took countries like England many years to change their laws and recognise gender issues like marital rape and ‘battered wife syndrome’. However, it has also been more than fifteen years since the decision in R v R was given. The Parliamentary Select Committee must reflect on this and suggest a solution to Parliament. Society must accord protection to the wives in cases of marital rape as any kind of rape is a heinous crime.
Gender Equality Law Should Safeguard All June 6, 2007
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As appeared in The Star, 27th June 2006, page N30
Reference to the article “Group unhappy with objection to rape clause” printed on 24th June 2006 at page N8. First and foremost, congratulations to JAG for their efforts in raising awareness on the gender equality issue.
The new subsection proposed, 375 (f), states that a person can be convicted of aggravated rape if he uses his power and authority to derive consent from the woman. There are a few issues here.
The first is that consent has been given. Do we really need a statutory provision that is so general in it’s essence that some might exploit the provisions by giving consent first and then later saying that power was exerted over them. Gender equality is very important. However, innocent people need to be safeguarded by the law too. It is not unlawful to have consensual sex but a provision like this might get many people compromised.
The second issue is that even if consent is given and authority is exerted in deriving that consent, the laws of duress should adequately cover this. If consent is given under duress, that consent would be unlawful. There are many areas that will be made better by the new provisions; however, we must not lose sight that gender equality also means that men should be treated equally. The legislators must always try to avoid miscarriages of justice as the sentences of imprisonment and caning are very heavy and irreversible.
As for the issue of a husband causing hurt in order to have sexual intercourse with the wife, the Bar Council’s recommendation that there must be actual physical hurt seems to show a lack of appreciation to the state of global human rights. Wives need to be protected from violent husbands. Sometimes there is no physical hurt but the threat of physical hurt could force a woman into submission. We must also take into account the mental hurt that could be caused by husbands.
CSMU – Parents Need To Know June 6, 2007
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6th July 2005
It is the right of the governing body Malaysian Medical Council (MMC) to recognise or de-recognise any university as they see fit. However, the problem that seem to arise in the CSMU issue is one of transparency in the workings of the MMC.
There have been a number of reasons cited and published in the media over the last two weeks or so. However, it seems the MMC has not come forward with a pressing case explaining the reasons of de-recognition and how the process of recognition actually takes place.
There needs to be check and balances in all matters and the MMC should account for the decisions that they make. The public has a right to know the provisions and methods employed by the governing body as an issue like this not only affects the student, it also affects their family. The governing body holds a public position and thus should be transparent with all their work as all bodies like MMC should be.
If there had been a mistake during the 2001 check on the university or an oversight as to certain requirements then the public would appreciate if the MMC would make public the findings then and their findings now.
It is interesting to note that the letter of no objection is not given by the MMC, who are the relevant governing body. However, it would be difficult for the MMC to check on every single student and the work can be delegated but are the provisions provided to that body adequate?
Finally, there may be many reasons why a university is recognised or not by the governing body but the main reason parents send their children to Ukraine is because education there is relatively cheaper than in many other places and the level of technology in terms of science and medicine should be at a very high level as Ukraine is a former member of the Soviet Union and has nuclear capacity. There has also been mention of security worries in Ukraine but these worries are much the same as anywhere in the educated world.
The public only want to know what actually happened, how it happened and who is accountable for what had happened, if there was a mistake or oversight.
