Andrew Khoo Chin Hock
THERE has been much mention recently of the desire to make the Malaysian Parliament a "world-class Parliament". What would this entail?
Firstly, backbenchers should be given an increased role through the setting up of parliamentary committees to oversee the work of the government.
The Standing Orders of the Dewan Rakyat provide for five select committees -- Committee of Selection, Public Accounts Committee, Standing Orders Committee, House Committee and Committee of Privileges.
The Standing Orders do provide for special select committees to be appointed by order of the Dewan Rakyat.
In the previous Parliament, we had select committees on unity and national service, on integrity, on code of ethics for members of parliament and to review proposed amendments to the Penal Code and Criminal Procedure Code.
Such select committees have restricted terms of reference and a limited time frame.
They tend to focus on particular public issues to gather information and make recommendations on the particular subject for which they were formed.
They do not, by their nature, act as an ongoing check and balance for the workings of government.
All but one of the five permanent committees focus on internal matters of the Dewan Rakyat.
The Public Accounts Committee reviews the functions of the Executive branch of government, especially the use of public funds.
As parliamentary time is limited, the Public Accounts Committee is only able to review a handful of matters during any one session of Parliament.
Partly because it is the only permanent committee with a public function, its functions and the matters brought before it receive more attention than they deserve.
The issues tend to be sensationalised and, therefore, what has been brought before it has always been viewed as politically sensitive.
This over-sensitivity can be seen in the fact that the government is not inclined to allow the opposition leader to be its chairman, as is the practice in mature parliamentary democracies.
What is needed are permanent committees of the Dewan Rakyat to oversee each ministry, providing the needed check and balance by the Legislative over the function of the Executive.
This is done in the Parliaments of Australia, India, New Zealand and the United Kingdom. among others, as well as in the US Congress. We have all seen, for example, members of the US cabinet and even the chairman of the US Federal Reserve Bank testify before the Congress.
Ideally, there should be one permanent committee for each ministry (unless two or more areas can sensibly be incorporated within the purview of a single permanent committee).
Standing Order 83 empowers a select committee to call for hearings and investigate matters falling within the ambit of the ministry it is to oversee.
It would be the permanent committee's responsibility to vet proposed legislation and amendments, hold public sessions where interested parties can give testimony on matters of public policy and have ministers appear to answer questions and provide explanations.
It would receive oral and written submissions. Witnesses could be summoned to testify before such permanent committees on pain of being found in contempt of Parliament. Potential whistleblowers could be granted immunity from legal action.
In a Westminster-style parliamentary democracy, the Executive has wide-ranging powers but the Legislative should not act as a mere rubber stamp.
Parliament must have and exercise a supervisory function. However, this role has not developed in a significant way.
To his credit, soon after Parliament was convened following the 2004 general election, the prime minister said that one of his objectives was to strengthen the Dewan Rakyat.
The establishment of permanent committees would help achieve this objective.
Secondly, we need to have much better and more focused scrutiny of proposed legislation. This is where having permanent committees would be extremely beneficial, instead of having a committee of the whole house, which is the current practice.
However, for this to succeed, the government would have to stop classifying parliamentary bills as official secrets and withholding them from open distribution until first reading.
Members of the public and parliamentarians should have the opportunity to study proposed legislation properly.
Given that we are entering the era of bilateral free trade agreements which may eventually contain commitments giving our trading partners the opportunity to be informed of, review and comment on proposed changes to legislation that may affect them, we should commence this change of culture by being open to the Malaysian public first.
By strengthening the power of backbenchers (both from the government and the opposition) to scrutinise legislation and question ministers, senior civil servants, captains of industry and other decision-makers, we will make the Executive more transparent and accountable.
It would make for an active and participative Legislative working together with the rakyat for the betterment of our country.
The third recommendation is to share the leadership of Parliament. With Barisan Nasional (BN) holding only 140 seats in the Dewan Rakyat and Pakatan Rakyat (PR) holding 82 seats, there is a perception of a greater sense of balance.
Now, it is the turn of the Parliament as an institution to show its maturity in line with the aspirations of a more demanding electorate.
Regardless of which political party (or coalition of parties) helms the government of the day, Parliament should operate on a level playing field.
As it is not inconceivable that the BN of today may be the opposition of tomorrow, it behoves BN to work with PR to progress towards a stronger and more mature Parliament.
The Federal Constitution does not mention the office of the leader of the opposition, although it is recognised in Standing Order 4A.
This is an anomaly which should immediately be put right. Some state governments have amended or are in the course of amending their respective state constitutions to do this at the state assembly level.
Currently, Article 57 of the Federal Constitution provides for the Dewan Rakyat to have one speaker and two deputy speakers.
To better reflect the political plurality in the country, as seen from the share of the popular vote obtained by both the BN and the PR respectively, one deputy speaker of the Dewan Rakyat ought to come from the opposition.
Given the potential for a possible change in the majority party in the Dewan Rakyat, this practice of selecting one deputy speaker of the Dewan Rakyat from among the ranks of the federal opposition would serve to entrench the concept of a shared leadership of Parliament.
The speaker and deputy speakers are expected to be neutral and non-partisan.
Indeed, once appointed, they must forget their political affiliation and become impartial umpires in the Dewan Rakyat, presiding and making rulings without fear or favour.
A total shutout of one side of the country's political representation from leadership in Parliament should be avoided at all costs.
Such a practice, if continued, would be detrimental to the full and fair workings of Parliament and a denial of recognition of the will of the rakyat.
It would also be unfair to the minority party, whichever that party might be.
Andrew Khoo Chin Hock is co-deputy chair of the Bar Council's Human Rights Committee. This article was previously published in the New Straits Times on 12 July 2008.
Monday, July 14, 2008
Understanding 'special position' of Malays
Raja Aziz Addruse and Helen Ting
Political observers are impressed by the fact that the proposal to replace the New Economic Policy (NEP) with needs-based affirmative action did not appear to be a political liability for Parti Keadilan Rakyat among the Malay voters. Those on the other side of the camp, on their part, talk about the loss of ketuanan Melayu for the same reason.
Public discussions on the abolition of the NEP link it up from time to time with Article 153 of the Federal Constitution regarding the special position of the Malays and natives in Sabah and Sarawak.
At times, it was even suggested that the abolition of affirmative action policies for the Malays was impossible due to the need to amend Article 153 of the Federal Constitution.
Closely related to this discussion is the charge of Malay ultra-nationalists that questioning the "special position" of the Malays amounts to challenging the ideology of ketuanan Melayu.
There appear to be a lot of myths surrounding "taboo notions" such as the Constitutional provisions for the "special position".
Does doing away with the NEP necessarily mean challenging Article 153? Should the constitutional provisions regarding the "special position" be understood as the symbolic affirmation of ketuanan Melayu? What was historically the understanding regarding the "special position" in any case?
Written records of the inter-party discussions of the Alliance leaders indicate that the Constitutional provisions on the "special position" were understood more as a protective measure for the Malay community which was then socio-economically disadvantaged.
Significantly, in their oral submission to the Reid Commission, the Alliance leaders requested the insertion of a Constitutional provision for the review of the "special position" of the Malays 15 years after independence.
Though subsequently removed, this implies that the Alliance leaders themselves did not intend the provision to be a permanent feature of independent Malaya.
This perspective is also clearly articulated in the recent biography of the late Tun Dr Ismail Abdul Rahman, who even expressed his belief that, "as more and more Malays became educated and gained self-confidence, they themselves would do away with this 'special position' because in itself this 'special position' is a slur on the ability of the Malays and only to be tolerated because it is necessary as a temporary measure to ensure their survival in the modern competitive world".
Yet, why has it come to be interpreted as a symbol of Malay hegemony and a permanent, even defining, feature of the Malaysian nation?
We have the familiar story of the racial riots of May 13 1969, which subsequently led to the imposition of a prohibition on the questioning of a number of Constitutional provisions including Article 153.
Meantime, the NEP was formally launched, setting clear objectives to be achieved within two decades, such as attaining a more balanced ethnic distribution of occupational engagement and for Malay share in the ownership of business to reach 30 per cent by 1990.
While some argue that the NEP officially ended in 1990, many of its wide-ranging economic and educational policies, including the popularly euphemised "quota system", remain in place till today in all but name.
Over the decades, the comprehensive affirmative action programmes have transformed the socio-economic status of the Malay community as a social group, even though many poor Malays may not have benefited from it.
Nonetheless, it was not successful in uplifting the overall socio-economic conditions of natives in Sabah and Sarawak and the Orang Asli in Peninsular Malaysia (who are intriguingly not mentioned explicitly as being included within the provisions of the "special position"), as well as the poor in other communities.
More insidiously, the initial socio-economic justifications for these measures have over time shifted to the argument of "indigenous entitlement" or right. It is only when affirmative action came to be viewed as a form of "indigenous entitlement" that the call for reforms or abolition of the NEP has been interpreted as a challenge to ketuanan Melayu.
Does a revamp of the NEP necessarily entail the amendment of Article 153 of the Federal Constitution?
Article 153 addresses the issues of reservation of quotas in respect of scholarships and other educational facilities or training privileges, positions in the federal public service and the granting of permits or licences for the operation of any trade or business for Malays and the natives of Sabah and Sarawak.
Nonetheless, figures for the quota are not specified, but are left to the discretion of the Yang di-Pertuan Agong as he deems "reasonable". In addition, clause 1 of the Article entrusts to the Yang di-Pertuan Agong the responsibility to also safeguard the "legitimate interests of other communities" in the same breath as safeguarding the special position of the Malays and natives in Sabah and Sarawak.
Notable is the fact that five out of the 12 clauses of Article 153 set out to limit the scope of its application.
They provide that the Constitutional provisions with respect to the special position should not deprive or restrict other communities of their legitimate interests and continued enjoyment of the same public office, rights, grants, facilities or privileges which might reasonably be expected in the ordinary course of events.
It could be argued that in order to respect the Constitutional spirit, the translation of this so-called "special position" into practical measures by the policy-makers should judiciously ensure that they are perceived as "reasonable", equitable and just by society as a whole.
The original spirit of the NEP, as defined by its twin objectives of the restructuring of society and the eradication of poverty regardless of race, abides by this same sense of fair play and social justice.
While Article 153 does provide the Constitutional basis for affirmative action in favour of the Malays and natives in Sabah and Sarawak, there is no ground to suggest that doing away with the NEP necessarily requires the amendment or repeal of Article 153.
While we cannot stop politicians with vested interests from linking up the NEP and Article 153 with the concept of ketuanan Melayu, we should at least be able to evaluate their discourse for what it is worth.
And it is apparent from a study of Article 153 of the Federal Constitution that such a linkage has no real basis whatsoever.
Raja Aziz Addruse is a former Bar Council president and former president of the National Human Rights Society (Hakam). Helen Ting is a research fellow at the Institute of Malaysian and International Studies (Ikmas), Universiti Kebangsaan Malaysia. This article was previously published in the New Straits Times on 22 June 2008.
THE electoral results in March have stirred up great hope among many that it signals the birth of a "new politics", whereby race-based rhetoric seems to have faltered as the magic formula for a big win by the Barisan Nasional.
Public discussions on the abolition of the NEP link it up from time to time with Article 153 of the Federal Constitution regarding the special position of the Malays and natives in Sabah and Sarawak.
At times, it was even suggested that the abolition of affirmative action policies for the Malays was impossible due to the need to amend Article 153 of the Federal Constitution.
Closely related to this discussion is the charge of Malay ultra-nationalists that questioning the "special position" of the Malays amounts to challenging the ideology of ketuanan Melayu.
Does doing away with the NEP necessarily mean challenging Article 153? Should the constitutional provisions regarding the "special position" be understood as the symbolic affirmation of ketuanan Melayu? What was historically the understanding regarding the "special position" in any case?
Written records of the inter-party discussions of the Alliance leaders indicate that the Constitutional provisions on the "special position" were understood more as a protective measure for the Malay community which was then socio-economically disadvantaged.
Significantly, in their oral submission to the Reid Commission, the Alliance leaders requested the insertion of a Constitutional provision for the review of the "special position" of the Malays 15 years after independence.
Though subsequently removed, this implies that the Alliance leaders themselves did not intend the provision to be a permanent feature of independent Malaya.
This perspective is also clearly articulated in the recent biography of the late Tun Dr Ismail Abdul Rahman, who even expressed his belief that, "as more and more Malays became educated and gained self-confidence, they themselves would do away with this 'special position' because in itself this 'special position' is a slur on the ability of the Malays and only to be tolerated because it is necessary as a temporary measure to ensure their survival in the modern competitive world".
Yet, why has it come to be interpreted as a symbol of Malay hegemony and a permanent, even defining, feature of the Malaysian nation?
We have the familiar story of the racial riots of May 13 1969, which subsequently led to the imposition of a prohibition on the questioning of a number of Constitutional provisions including Article 153.
Meantime, the NEP was formally launched, setting clear objectives to be achieved within two decades, such as attaining a more balanced ethnic distribution of occupational engagement and for Malay share in the ownership of business to reach 30 per cent by 1990.
While some argue that the NEP officially ended in 1990, many of its wide-ranging economic and educational policies, including the popularly euphemised "quota system", remain in place till today in all but name.
Over the decades, the comprehensive affirmative action programmes have transformed the socio-economic status of the Malay community as a social group, even though many poor Malays may not have benefited from it.
Nonetheless, it was not successful in uplifting the overall socio-economic conditions of natives in Sabah and Sarawak and the Orang Asli in Peninsular Malaysia (who are intriguingly not mentioned explicitly as being included within the provisions of the "special position"), as well as the poor in other communities.
More insidiously, the initial socio-economic justifications for these measures have over time shifted to the argument of "indigenous entitlement" or right. It is only when affirmative action came to be viewed as a form of "indigenous entitlement" that the call for reforms or abolition of the NEP has been interpreted as a challenge to ketuanan Melayu.
Does a revamp of the NEP necessarily entail the amendment of Article 153 of the Federal Constitution?
Article 153 addresses the issues of reservation of quotas in respect of scholarships and other educational facilities or training privileges, positions in the federal public service and the granting of permits or licences for the operation of any trade or business for Malays and the natives of Sabah and Sarawak.
Nonetheless, figures for the quota are not specified, but are left to the discretion of the Yang di-Pertuan Agong as he deems "reasonable". In addition, clause 1 of the Article entrusts to the Yang di-Pertuan Agong the responsibility to also safeguard the "legitimate interests of other communities" in the same breath as safeguarding the special position of the Malays and natives in Sabah and Sarawak.
Notable is the fact that five out of the 12 clauses of Article 153 set out to limit the scope of its application.
They provide that the Constitutional provisions with respect to the special position should not deprive or restrict other communities of their legitimate interests and continued enjoyment of the same public office, rights, grants, facilities or privileges which might reasonably be expected in the ordinary course of events.
It could be argued that in order to respect the Constitutional spirit, the translation of this so-called "special position" into practical measures by the policy-makers should judiciously ensure that they are perceived as "reasonable", equitable and just by society as a whole.
The original spirit of the NEP, as defined by its twin objectives of the restructuring of society and the eradication of poverty regardless of race, abides by this same sense of fair play and social justice.
While Article 153 does provide the Constitutional basis for affirmative action in favour of the Malays and natives in Sabah and Sarawak, there is no ground to suggest that doing away with the NEP necessarily requires the amendment or repeal of Article 153.
While we cannot stop politicians with vested interests from linking up the NEP and Article 153 with the concept of ketuanan Melayu, we should at least be able to evaluate their discourse for what it is worth.
And it is apparent from a study of Article 153 of the Federal Constitution that such a linkage has no real basis whatsoever.
Raja Aziz Addruse is a former Bar Council president and former president of the National Human Rights Society (Hakam). Helen Ting is a research fellow at the Institute of Malaysian and International Studies (Ikmas), Universiti Kebangsaan Malaysia. This article was previously published in the New Straits Times on 22 June 2008.
Tuesday, June 24, 2008
Sedition or a question of law?
Raja Aziz Addruse and Andrew Khoo Chin Hock
THE law of sedition is fast getting into disrepute.
The public exchanges over the Datuk Jamry Sury affair show yet again that there are still many people who believe that charging a person with sedition for uttering statements critical of someone in high authority would make the problem go away.
They lack any sense of objectivity and see in every criticism of those in power an intention to commit some criminal offence.
Jamry was the director of the Perak Religious Department. He had been transferred out of his post to the state secretariat by the Pakatan Rakyat government but was reinstated on the instruction of the Sultan.
That prompted Karpal Singh, the DAP member of parliament for Bukit Gelugor and a senior lawyer, to question the "constitutionality" of the instruction.
He argued that it was the state government which should decide when and where to transfer a civil servant and that the Ruler should not interfere.
One would have thought that the issue was whether it was the state government or the Ruler who had the power of control over Jamry in relation to his employ.
Ordinarily, it is the government which has the power to deal with civil servants since it would otherwise be powerless to control them in the event of their insubordination, disobedience or, as alleged in Jamry's case, for refusing to co-operate with the government.
If, however, as some contend, the power to transfer Jamry is vested in the Ruler as the head of the Islamic religion in the state, then so be it.
Whichever is the correct view can only be determined by interpreting the provisions of the state Constitution, according to established principles of constitutional law, as applied in a democracy.
What is involved is clearly a question of law.
But there are those who do not quite see it that way. Arising from his criticism of the Ruler of the state, a number of police reports were lodged against Karpal Singh, accusing him of sedition, of being rude and of insulting the institution of Malay Rulers.
To the complainants, the question of whether the Ruler's action was constitutional or not is not relevant. What to them is of greater importance is that no one should make any statement critical of the actions of the Ruler of a state.
That goes against the express provision of the Federal Constitution, that everyone is equal before the law.
Furthermore, the government itself, when justifying its move in 1992 to remove the legal immunity of the Malay Rulers (by amending Article 181), had made it a point to impress upon the public that: "No one is above the law".
No government backbencher had made any complaint then that the various statements uttered by government ministers and senior politicians, against which the recent utterances of Karpal Singh pale by comparison were seditious.
Then there were the inciting state ments of ministers and other politicians made in connection with the government's move to amend Articles 150 and 66 of the Federal Constitution in 1983, for which no one was ever prosecuted for sedition.
The 1983 amendments, which have since been repealed, transferred the power of the Yang Di-Pertuan Agong in Article 150 to declare an emergency to the prime minister.
The amendment to Article 66 stated that the Yang Di-Pertuan Agong had 15 days to assent to a piece of legislation, failing which, royal assent would be deemed to have been given.
Apart from the question of double standards, a difference of viewpoint on an issue of law and of the interpretation of legislation cannot support an accusation of sedition.
On an issue involving the exercise of the right to freedom of speech, one needs to be a bit more mature and broad-minded in one's outlook.
Members of parliament, especially, have a duty to honour the oaths they made before taking their seats in the Dewan Rakyat -- to "bear true faith and allegiance to Malaysia, and to preserve, protect and defend its Constitution".
When considering the right to freedom of speech provision of the Constitution, they need to remind themselves of the oft-quoted statement, "I may disapprove of what you say but I will defend to the death your right to say it." (This was a phrase coined by Evelyn Beatrice Hall to describe Voltaire's principle of the right to free speech.)
What is strange about the whole thing is that the attorney-general (also the public prosecutor), who must have been aware of what has been going on, does not seem to have initiated any action against Karpal Singh.
If the statements were seditious, as alleged in the police report, one would have expected the attorney-general to be the first to act.
Raja Aziz Addruse is a former Bar Council president and former president of the National Human Rights Society (Hakam). Andrew Khoo Chin Hock is co-deputy chair of the Bar Council's Human Rights Committee. This article was previously published in the New Straits Times on 18 May 2008.
THE law of sedition is fast getting into disrepute.
The public exchanges over the Datuk Jamry Sury affair show yet again that there are still many people who believe that charging a person with sedition for uttering statements critical of someone in high authority would make the problem go away.
They lack any sense of objectivity and see in every criticism of those in power an intention to commit some criminal offence.
Jamry was the director of the Perak Religious Department. He had been transferred out of his post to the state secretariat by the Pakatan Rakyat government but was reinstated on the instruction of the Sultan.
That prompted Karpal Singh, the DAP member of parliament for Bukit Gelugor and a senior lawyer, to question the "constitutionality" of the instruction.
He argued that it was the state government which should decide when and where to transfer a civil servant and that the Ruler should not interfere.
One would have thought that the issue was whether it was the state government or the Ruler who had the power of control over Jamry in relation to his employ.
Ordinarily, it is the government which has the power to deal with civil servants since it would otherwise be powerless to control them in the event of their insubordination, disobedience or, as alleged in Jamry's case, for refusing to co-operate with the government.
If, however, as some contend, the power to transfer Jamry is vested in the Ruler as the head of the Islamic religion in the state, then so be it.
Whichever is the correct view can only be determined by interpreting the provisions of the state Constitution, according to established principles of constitutional law, as applied in a democracy.
What is involved is clearly a question of law.
But there are those who do not quite see it that way. Arising from his criticism of the Ruler of the state, a number of police reports were lodged against Karpal Singh, accusing him of sedition, of being rude and of insulting the institution of Malay Rulers.
To the complainants, the question of whether the Ruler's action was constitutional or not is not relevant. What to them is of greater importance is that no one should make any statement critical of the actions of the Ruler of a state.
That goes against the express provision of the Federal Constitution, that everyone is equal before the law.
Furthermore, the government itself, when justifying its move in 1992 to remove the legal immunity of the Malay Rulers (by amending Article 181), had made it a point to impress upon the public that: "No one is above the law".
No government backbencher had made any complaint then that the various statements uttered by government ministers and senior politicians, against which the recent utterances of Karpal Singh pale by comparison were seditious.
Then there were the inciting state ments of ministers and other politicians made in connection with the government's move to amend Articles 150 and 66 of the Federal Constitution in 1983, for which no one was ever prosecuted for sedition.
The 1983 amendments, which have since been repealed, transferred the power of the Yang Di-Pertuan Agong in Article 150 to declare an emergency to the prime minister.
The amendment to Article 66 stated that the Yang Di-Pertuan Agong had 15 days to assent to a piece of legislation, failing which, royal assent would be deemed to have been given.
Apart from the question of double standards, a difference of viewpoint on an issue of law and of the interpretation of legislation cannot support an accusation of sedition.
On an issue involving the exercise of the right to freedom of speech, one needs to be a bit more mature and broad-minded in one's outlook.
Members of parliament, especially, have a duty to honour the oaths they made before taking their seats in the Dewan Rakyat -- to "bear true faith and allegiance to Malaysia, and to preserve, protect and defend its Constitution".
When considering the right to freedom of speech provision of the Constitution, they need to remind themselves of the oft-quoted statement, "I may disapprove of what you say but I will defend to the death your right to say it." (This was a phrase coined by Evelyn Beatrice Hall to describe Voltaire's principle of the right to free speech.)
What is strange about the whole thing is that the attorney-general (also the public prosecutor), who must have been aware of what has been going on, does not seem to have initiated any action against Karpal Singh.
If the statements were seditious, as alleged in the police report, one would have expected the attorney-general to be the first to act.
Raja Aziz Addruse is a former Bar Council president and former president of the National Human Rights Society (Hakam). Andrew Khoo Chin Hock is co-deputy chair of the Bar Council's Human Rights Committee. This article was previously published in the New Straits Times on 18 May 2008.
Let's have certainty in this law
Raja Aziz Addruse
KAMARIAH Ali, one of the followers of the Sky Kingdom sect led by Ayah Pin, was convicted of apostasy by the Terengganu Syariah Court on Feb 17, 2008.
Her long and futile legal struggle highlights the need to seriously address the constitutional issue of the right of Muslims to freedom of religion.
Kamariah had years earlier been convicted of deviant practices in the syariah court and sentenced to 20 months' jail. Her appeal against the conviction was dismissed but her sentence was suspended on condition that she appear before the Kadi's Court every month for three years to declare her repentance.
When she breached the condition, a new charge was brought against her. On Nov 5, 2000, when her case was called up, she declared in open court that she had apostatised since August 1998, arguing that she was not subject to the jurisdiction of the syariah court.
Despite having apostatised, she was found guilty of the new charge on Nov 19, 2000 and sentenced to three years' jail. A further charge was brought against her for apostasy, arising from the declaration she had made on Nov 5, 2000.
She made two applications to the civil courts, to seek her release by a writ of habeas corpus on the ground that her conviction and sentence of imprisonment were illegal; and, to ask for a declaration that she had a right to profess and practise the religion of her choice and, therefore, to renounce Islam.
The Kota Baru High Court dismissed both applications and her appeal to the Court of Appeal was also unsuccessful.
But on Nov 5, 2002, she was granted leave to appeal to the Federal Court to determine specific issues, including whether the right to profess a religion under Article 11(1) of the Federal Constitution includes the right of an adult Muslim to renounce his religion; and whether a law imposing any restriction upon the right of such a person to renounce his religion is inconsistent with Article 11(1) of the Constitution and is, therefore, void.
In a joint judgment delivered on July 21, 2004, four of the five judges of the Federal Court who had heard the appeal (the fifth having in the meantime retired), dismissed it.
The court held that although she had apostatised in 1998, Kamariah was still liable for any offence she had committed while she was still a Muslim.
The court said if Muslims charged for syariah offences were allowed to say that they were no longer Muslims to escape the jurisdiction of the syariah court, the whole administration of Islamic law (and possibly other religions as well) would be affected.
In the court's view, the issues posed by the questions were not relevant and were academic.
Kamariah, it said, should raise the issue of her right to freedom of religion at her trial on the apostasy charge.
Since she faced prosecution for apostasy in the syariah court, it was difficult to explain how the question of Kamariah's right to renounce Islam could be dismissed as irrelevant or academic.
What had been expected to be a landmark decision from the highest court of the country turned out to be a great disappointment.
All the efforts put in by Kamariah's lawyers and over eight months of waiting for the judgment proved a waste of time. The Federal Court had showed itself to be unequal to the task of discharging its most important constitutional function.
Kamariah's lawyers had been careful to make sure the questions which the court had to consider and answer were couched in precise terms.
But it was not any ambiguity that was the problem: it was just that the court was avoiding the issue.
One gets the distinct impression that the civil courts have been too quick to decline jurisdiction whenever the issue of Article 11 has cropped up.
In the Lina Joy case, the High Court referred to various provisions of the Constitution which it said were relevant to the reading of Article 11.
But looking at those provisions closely, none of them appears to have any bearing on the issue.
The view, for example, that a Malay, by virtue of the definition of the term "Malay" in Article 160(2), cannot renounce Islam as his or her religion but remains in the Islamic faith until his or her dying days, is contrived.
The definition of "Malay" in Article 160(2) is nothing more than just that: it is intended for the specific purpose of identifying the "Malays" referred to in a number of provisions of the Constitution.
A "Malay" as defined does not even have to be ethnically a Malay. The late Tan Sri Mubin Sheppard, an Englishman, who professed the religion of Islam, habitually spoke the Malay language and conformed to Malay custom, was a Malay for the purpose of the definition.
The Federal Court has a duty to establish some certainty in the law. The current practice of deciding each case on an ad hoc basis, with each decision providing no satisfactory solution, is unacceptable.
The civil courts, if they are to have any credibility, must base their decisions on sound legal principles, uninfluenced by personal prejudices and predilections.
It is not good enough to say, in declining jurisdiction, that allowing a Muslim to come out of Islam would "create chaos and confusion" or would "threaten public order". Those are not acceptable reasons.
The civil courts have the jurisdiction to interpret the Constitution and protect the fundamental liberties, including the right to freedom of religion under Article 11.
That jurisdiction cannot be taken away by inference or implication, as seems to be the argument, but by an express enactment which says that it is the intention of parliament to deprive the courts of their jurisdiction.
The Kamariah case also highlights other aspects of our justice system. When she was convicted of apostasy, the syariah court judge had deferred her sentencing to March 3 to give her a chance to show that she had repented.
In sentencing her to prison for two years, the judge said that he was not convinced that she had repented because she had failed to respond when he greeted her with Assalamualaikum at the start of the court proceedings.
The picture of a lonely woman who has been ostracised from society, being continually harassed to repent, offends our sense of justice and fair play.
No one should be subjected to such humiliation and shame, particularly by a court of law, even a syariah court.
The sentence passed by the syariah court took into account public interest and the sentiments of Muslims in the country. Those are factors which, to lawyers practising civil law, are too nebulous to use as principles for sentencing.
Kamariah had served a two-year jail sentence in 1992, also for apostasy.
No doubt the Federal Court will one day have to rule if a person like Kamariah can be charged again and again for the same, or virtually the same, offence.
The writer is a former Bar Council president and former president of the National Human Rights Society (Hakam). This article was previously published in the New Straits Times on 27 April 2008.
Her long and futile legal struggle highlights the need to seriously address the constitutional issue of the right of Muslims to freedom of religion.
Kamariah had years earlier been convicted of deviant practices in the syariah court and sentenced to 20 months' jail. Her appeal against the conviction was dismissed but her sentence was suspended on condition that she appear before the Kadi's Court every month for three years to declare her repentance.
When she breached the condition, a new charge was brought against her. On Nov 5, 2000, when her case was called up, she declared in open court that she had apostatised since August 1998, arguing that she was not subject to the jurisdiction of the syariah court.
Despite having apostatised, she was found guilty of the new charge on Nov 19, 2000 and sentenced to three years' jail. A further charge was brought against her for apostasy, arising from the declaration she had made on Nov 5, 2000.
She made two applications to the civil courts, to seek her release by a writ of habeas corpus on the ground that her conviction and sentence of imprisonment were illegal; and, to ask for a declaration that she had a right to profess and practise the religion of her choice and, therefore, to renounce Islam.
The Kota Baru High Court dismissed both applications and her appeal to the Court of Appeal was also unsuccessful.
But on Nov 5, 2002, she was granted leave to appeal to the Federal Court to determine specific issues, including whether the right to profess a religion under Article 11(1) of the Federal Constitution includes the right of an adult Muslim to renounce his religion; and whether a law imposing any restriction upon the right of such a person to renounce his religion is inconsistent with Article 11(1) of the Constitution and is, therefore, void.
In a joint judgment delivered on July 21, 2004, four of the five judges of the Federal Court who had heard the appeal (the fifth having in the meantime retired), dismissed it.
The court held that although she had apostatised in 1998, Kamariah was still liable for any offence she had committed while she was still a Muslim.
The court said if Muslims charged for syariah offences were allowed to say that they were no longer Muslims to escape the jurisdiction of the syariah court, the whole administration of Islamic law (and possibly other religions as well) would be affected.
In the court's view, the issues posed by the questions were not relevant and were academic.
Kamariah, it said, should raise the issue of her right to freedom of religion at her trial on the apostasy charge.
Since she faced prosecution for apostasy in the syariah court, it was difficult to explain how the question of Kamariah's right to renounce Islam could be dismissed as irrelevant or academic.
What had been expected to be a landmark decision from the highest court of the country turned out to be a great disappointment.
All the efforts put in by Kamariah's lawyers and over eight months of waiting for the judgment proved a waste of time. The Federal Court had showed itself to be unequal to the task of discharging its most important constitutional function.
Kamariah's lawyers had been careful to make sure the questions which the court had to consider and answer were couched in precise terms.
But it was not any ambiguity that was the problem: it was just that the court was avoiding the issue.
One gets the distinct impression that the civil courts have been too quick to decline jurisdiction whenever the issue of Article 11 has cropped up.
In the Lina Joy case, the High Court referred to various provisions of the Constitution which it said were relevant to the reading of Article 11.
But looking at those provisions closely, none of them appears to have any bearing on the issue.
The view, for example, that a Malay, by virtue of the definition of the term "Malay" in Article 160(2), cannot renounce Islam as his or her religion but remains in the Islamic faith until his or her dying days, is contrived.
The definition of "Malay" in Article 160(2) is nothing more than just that: it is intended for the specific purpose of identifying the "Malays" referred to in a number of provisions of the Constitution.
A "Malay" as defined does not even have to be ethnically a Malay. The late Tan Sri Mubin Sheppard, an Englishman, who professed the religion of Islam, habitually spoke the Malay language and conformed to Malay custom, was a Malay for the purpose of the definition.
The Federal Court has a duty to establish some certainty in the law. The current practice of deciding each case on an ad hoc basis, with each decision providing no satisfactory solution, is unacceptable.
The civil courts, if they are to have any credibility, must base their decisions on sound legal principles, uninfluenced by personal prejudices and predilections.
It is not good enough to say, in declining jurisdiction, that allowing a Muslim to come out of Islam would "create chaos and confusion" or would "threaten public order". Those are not acceptable reasons.
The civil courts have the jurisdiction to interpret the Constitution and protect the fundamental liberties, including the right to freedom of religion under Article 11.
That jurisdiction cannot be taken away by inference or implication, as seems to be the argument, but by an express enactment which says that it is the intention of parliament to deprive the courts of their jurisdiction.
The Kamariah case also highlights other aspects of our justice system. When she was convicted of apostasy, the syariah court judge had deferred her sentencing to March 3 to give her a chance to show that she had repented.
In sentencing her to prison for two years, the judge said that he was not convinced that she had repented because she had failed to respond when he greeted her with Assalamualaikum at the start of the court proceedings.
The picture of a lonely woman who has been ostracised from society, being continually harassed to repent, offends our sense of justice and fair play.
No one should be subjected to such humiliation and shame, particularly by a court of law, even a syariah court.
The sentence passed by the syariah court took into account public interest and the sentiments of Muslims in the country. Those are factors which, to lawyers practising civil law, are too nebulous to use as principles for sentencing.
Kamariah had served a two-year jail sentence in 1992, also for apostasy.
No doubt the Federal Court will one day have to rule if a person like Kamariah can be charged again and again for the same, or virtually the same, offence.
The writer is a former Bar Council president and former president of the National Human Rights Society (Hakam). This article was previously published in the New Straits Times on 27 April 2008.
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