Tuesday, August 28, 2007

Mr Speaker, Sir

We read and hear a lot about the Speaker of the Dewan Rakyat refusing to allow debate on motions moved by the Opposition. The rejection of the urgent motion by the Opposition to debate the Port Klang Free Trade issue was the latest casualty of a perhaps overly enthusiastic exercise of control by the Speaker. This time the reason advanced (as reported by Malaysiakini) was that as the matter was being looked into by the Government, there was no need for a debate on the subject in the Dewan.

I believe that most, if not all, the motions moved by the Opposition in recent times have been on important matters, for the principle involved or otherwise. From sexist slurs to questioning the use or abuse of national funds, the matters raised could not be seen to be other than relevant to the national interest. I say this not because I support the Opposition but because of the significance of these issues, especially in a system like ours. The lack of transparency and the continued expectation on the part of Government that Malaysians accept the validity of its actions simply for it being the Government makes it all that much more important that the truth emerges.

The Dewan Rakyat represents the essence of government of the Federation. It is not just a legislative chamber. It is from its members that Cabinet evolves. It is in the Dewan that the deliberation and discussion by elected representatives so essential to the balanced governance of this nation is intended to happen. For this reason, parliamentarians are accorded immunity and privilege from criminal and civil sanction. Through frank and open debates, and the truth that emerges from these debates, it is intended that a certain measure of control be brought over Executive function, a control balanced by the vigilance of an independent judiciary. It is through the Dewan that control over public finance is intended to be exercised.

Were it otherwise, there would be arbitrary exercises of power.

Regrettably, when viewed in this context, the trend of rejections of Opposition motions by the Speaker is alarming. Bearing in mind that it is only the Opposition that appears to be interested in more than just propaganda and non-speak (how else can one characterize the performances of members of the Government) as is easily seen from the nature of the motions moved, the continued rejection by the Speaker is undermining the very institution he is charged with safeguarding.

The Speaker of the Dewan Rakyat enjoys great prestige, position and authority. He has extensive powers to regulate its proceedings under its rules of procedures with a view to maintaining orderly conduct of parliamentary proceedings and discipline and order. No debate is allowed on his rulings except on formal resolution. In all of this, the Speaker is much more than merely a presiding officer of the Dewan. He is the representative and spokesman of Parliament in its collective capacity and is the chief custodian of its powers and privileges (M P Jain).

Respectfully, the Speaker appears to have overlooked the beneficiaries of his trusteeship. He is the steward of the Dewan Rakyat for all Malaysians. The smooth, efficient and efficacious operation of the Dewan is a birthright of all Malaysians and a vital aspect of the governance of this country. Any interference with this process is an injury to the nation and to Malaysians. The continued rejection of motions vital to a clear understanding of the state of this nation is a process that can only lead us to ruination.

Let there be open and fair debate in the Dewan Rakyat, Mr Speaker, Sir.


Monday, August 27, 2007

Bangsa Malaysia - Action Required

Get registered as a voter if you have not done so already.

You can do it at follows (this is taken from the Election Commission website at http://www.spr.gov.my/index/regelectors.htm).


The Registration of Electors, as provided for under the law, enables qualified Malaysian citizens to register as electors. The registration is carried out throughout the year. In addition it allows the Registered Electors who have changed their address to register at the new place of residence. Electors are also encouraged to check their names in the verified Electoral Rolls.


To secure your right to vote in an election and exercise your right as a citizen.


A Malaysian citizen
Has attained 21 years of age:
Is residing in any Election Constituency in Malaysia; and
Has not been disqualified.


Go personally to the Registration Centre;
Take along your Identity Card;
Ensure Form A is correctly filled by the staff before signing the form; and
Keep one copy of the form as proof of your registration.


Election Commission of Malaysia Headquarters
State Election Offices

All Post Offices with computer facilities in the country;
Commission’s mobile teams;
Other places specified by the Election Commission as Registration Centres.


You can register during office hours thoughout the year.


1. The applicant's name must be written according to his Identity Card. Please use CAPITAL LETTERS.

2. Please provide complete information regarding your Identity Card :

2.1 Your new I/C number (12 Digits)
2.2 Your previous I/C number (8 Digits)

3. If the applicant does not possess any previous I/C number, please state "TIADA" in the space provided.

4. The applicants address must be that of his residence where he can be contacted by mail (please state the post code number).

5. Please specify on the form whether it is a new application or application for change of address.

6. Please ensure you receive a copy of the registration form as proof of your registration.


A registered elector can check his or her registration status by the following methods:

1) telephone the headquarters of the Election Commission or the State Election Officers and give them your name and Identity Card number;
2) via internet at www.spr.gov.my


For further information :



Suruhanjaya Pilihan Raya Malaysia
Aras 4-5 Blok C7
Pusat Pentadbiran Kerajaan Persekutuan
62690 Putrajaya
Tel : 03-88856500

Thursday, August 16, 2007

Latifah Mat Zin: Reaffirming The Supremacy Of The Constitution (II)

The Politicisation Of The Constitution

May 13th, 1969

I will start by conceding that the terms of the Federal Constitution from its outset were the result of a political compromise struck between the various prime movers of the Merdeka initiative. In that way, it could be said that the Constitution was politicized from the very beginning.

Having said that, it must be borne in mind that the Constitution that was put in place in 1957 was sufficiently comprehensive and even handed so as to provide protection for all Malayans, and with the entry of Sabah and Sarawak into the Federation, all Malaysians. For this reason, for the purpose of the discussion herein I will take the position that the Constitution was not politicized until 1988 and after. This is explained in the next section.

Questions may be asked about the events of May 13th 1969. These events clearly had an impact on the national psyche where the issue of race relations was concerned. The steps taken to ostensibly deal with the situation have been described as having amounted, in effect, to steps in aid of a ‘regime change’ (Kua Kia Soong, May 13: Declassified Documents On The Malaysian Riot Of 1969). Positions taken, policies and legislative measures introduced in the aftermath of May 13th clearly laid foundation for, and gave life to, the ‘ketuanan Melayu’ mindset in a way that hindsight allows us to see may not have been the best way to move forward. If nothing else, it entrenched communitarian politics and fueled the supremacist agenda of the UMNO.

That being said, the Constitution itself was not amended in a way so as to shift the constitutional compact achieved in 1957.


The events of 1987 and 1988 however tell a different story. I had previously written here (Back To Basics) of how the period between 1987 and 1988 seriously damaged this nation. The analysis has relevance to this discussion as it was during this period that the Mahathir Administration politicized the Constitution.

Article 121(1)

Where the Constitution was concerned, two key events have to be underscored. The first was the amendment to Article 121(1) of the Constitution. The amendment purported to remove the entrenched right to judicial review. It did this by deleting the constitutional declaration that the judicial power of the Federation vested in the Judiciary and substituting in its place a declaration that the jurisdiction and power of the High Court was as vested by Federal law. Put another way, the amendment purported to yoke and suborn the Judiciary to Parliament. Constitutional supremacy as we knew it became Parliamentary Supremacy.

This did not bode well as it encroached into the very essence of the Malaysian democratic framework, premised on the separation of powers and the independence of the Judiciary that entail and required. More so for the fact that the Barisan Nasional had, and still has, control of two-thirds of Parliament. This meant that laws ousting the jurisdiction and power of the Courts to inquire into particular areas of Executive function could be, and were in fact, created. For instance, the Internal Security Act has a provision (section 8B) that impedes the right of review over the decision of the Minister concerned to detain a person other than on technical grounds. What this means is, and this is the approach that has been taken by the Malaysian courts, that the decision by the Minister to detain someone in preventive detention is for all purposes and intents beyond challenge.

Through this, the Executive, and as such the Barisan Nasional, and more particularly UMNO, immunized itself from effective and meaningful supervision. The foundations for arbitrary government were laid.

(It should be noted however that though the Federal Court in Sugumar Balakrishnan gave effect to the notion of Parliamentary Supremacy, the Court of Appeal in Kok Wah Kuan more recently concluded that the Judiciary retains the jurisdiction to grant judicial review notwithstanding the amendment)


The recently controversial Article 121(1A) was introduced at the same time in response to concerns raised by some quarters that the High Court was interfering with the affairs of the syariah courts.

As I have said before, this provision in itself does not present any real problems. It merely states that what is within the jurisdiction of the syariah courts are not within the jurisdiction of the civil High Court. This is equally true of matters within the jurisdiction of the sessions or magistrates courts, or the native courts in East Malaysia.

These courts are courts other than the ‘superior’ courts, a term used to described the judicial system created by the Constitution comprising of the High Court of West Malaysia, the High Court of Sabah and Sarawak, the Court of Appeal and the Federal Court. The other courts envisaged by the Constitution, including the subordinate courts (sessions and magistrates) are created through enacted law and not the Constitution directly. For this reason, the Constitution refers to the subordinate courts as ‘inferior courts’. Courts throughout the common law world have used this term to refer to courts of a similar nature. In Malaysia, the native court and the Industrial Court have been judicially referred to as ‘inferior courts’.

The syariah courts stand on the same footing. They are created by the State Assembly, and Parliament where the Federal Territories are concerned, through enacted law. They are not created by the Constitution.

One of the principal features of an inferior court is that it is subject to the supervisory powers of the High Court. This is more usually effected through a process known as judicial review. In judicial review, the general rule is that the supervising court is concerned with the process by which the inferior court came to its decision and not with the merits of the decision (other than where the merits are compromised by the compromising of the process by the inferior court. In testing the process, the High Court more usually considers whether the inferior court had the jurisdiction to make a decision over the matter in issue, gave all parties concerned an adequate right to be heard, other aspects of fairness were ensured, that all relevant factors were taken into consideration, that no irrelevant factors were taken into consideration, and that the decision was not unreasonable.

Article 121(1A) did not oust the power of the High Court to carry out this supervisory process, if called upon to do so. More significantly, Article 121(1A) did not oust the jurisdiction of the High Court. It merely declared the state of play between the civil courts and the syariah courts. This means that Article 121(1A) was not intended to oust the jurisdiction of the High Court over matters of an ‘Islamic’ nature. Neither was it intended to provide a means by which matters in the syariah court were to be ‘shielded’ from supervisory scrutiny. The same questions were to be asked, starting with whether the matter in issue was one within the jurisdiction of the syariah court and could be decided in the way the syariah court was going to or did.

As an illustration, consider the hypothetical situation of a non-muslim being convicted of an offence by the syariah court. This is clearly outside the jurisdiction of the syariah court as the syariah court only has jurisdiction over “persons professing the religion of Islam” (more on this later in this series). Article 121(1A) would no impede the exercise of the High Court’s power of judicial review to ensure that the conviction was quashed and the sentence not effected.

In light of this, it is critical to appreciate how the jurisdiction of the syariah court is determined. For this purpose, it is necessary to understand what law is applied in Malaysia and how that law is made. Put very simply, the law that is applied in this country is enacted law.

Being a Federal system, the legislature comprises of both the federal legislature, Parliament, and the state legislatures, the State Assemblies. There is a division of the areas in which the federal and state legislatures are empowered to make law. These areas are enumerated in a Federal List, a State List and a Concurrent List (matters which both legislatures can make law on certain conditions) which appear in the 9th Schedule to the Constitution.

This means that unless and until law is made by Parliament or any of the State Assemblies, there is no law. This principle cuts across the board and includes within its ambit Islamic law, which is contained in the State List (Item 1). As such, it does not matter that a particular principle of Islamic law exists by virtue of the Al-Quran, the Hadith or the scholarly works of jurists, until such principle is codified into law by the legislature in a constitutional manner the principle is not applicable as law.

Amongst the laws pertaining to matters of Islam that the State Assembly may make are laws providing for the constitution, Organisation and procedure of Syariah courts. Item 1 of the State List provides that these courts shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in Item 1. This translates into the jurisdiction of the syariah courts being created and vested by laws made in respect of matters contained in Item 1. A corollary to this is that until and unless such law is made, vesting the syariah courts with jurisdiction, there is no jurisdiction. Until jurisdiction is so vested, there is no question of the separation of jurisdiction contemplated under Article 121(1A) applying.

The foregoing analysis is not controversial. Aspects of this analysis featured in several key decisions of the Supreme Court in the period before 1999, in particular those in the cases of Dalip Kaur, Habibullah, Tang Sung Moi and Sukma Dharmawan. These decisions mapped out the landscape admirably and with sufficient clarity so as to have given adequate guidance for future cases.

The question that arises is in light of these decision and the settled principles relevant to issues arising out of the harmonizing of the syariah and civil court jurisdictions, what happened? The next part of this segment addresses this.


Monday, August 13, 2007

Thoughts On Democracy

Democracy allows each and everyone of us the freedom to reach out and achieve our ambitions, to live our lives to the fullest in our own unique way. We should be able to do this because of everyone else around us, and not despite them.

Saturday, August 11, 2007

Article 11 Meets Select Committee On National Unity

'Article 11', the coalition of NGOs was invited by the Parliamentary Select Committee On National Unity to make representations before the Committee on 6th August 2007. The coalition attended and made representations through Zainah Anwar and myself. A statement was submitted. The full text appears below.

Statement By “Article 11”
Hearing By Parliamentary Select Committee On National Unity (06.08.2007)

Article 11’s position from the outset, as has been the case for the civil society organisations that make up the coalition, has been the position declared by HRH The Regent Of Perak as reported in the media on 6th August 2007.

This position is:
  • that the Federal Constitution is the supreme law of the land. All laws, state actions and policies are to be tested against the Constitution. If they contravene the Constitution, these laws, actions and policies are void;
  • Malaysia is not an Islamic State. Our Constitution and a binding decision of the Supreme Court have rejected any such notion. The public, and as such the governing, law of this country is law premised on universal values equally cherished and applicable to all; and
  • The Rule of Law is essential to the continued progress and development of this Country. The Rule of Law must be blind to ethnic and religious influences. The special status of Malays, natives of Sabah and Sarawak and the place of Islam in the Federation have, and should have, no bearing on the Rule of Law. The laws of Malaysia must serve all Malaysians.
Article 11 was and is concerned that:

  • the 3 points stated above have not been fully appreciated by those charged with responsibility amongst us. There has, sadly, been an undermining of the Rule of Law in a series of actions and decisions of the Court that have run counter to the letter and spirit of the Federal Constitution including:
  1. the case of Kaliammah, the widow of the late P Moorthy;
  2. the case of Lina Joy; and
  3. the case of Subashini.
  • These decisions have not only resulted in injustice to the parties concerned but have also laid down precedents which have created deep rifts in society. The fact that these decisions have been justified by reference to the Constitution makes the situation more alarming. It points to:
  1. a state of affairs where the aspirations of some, in particular the aspiration for a greater role for what some perceive as precepts of Islam in public life, have become a reality through processes which are not constitutional or even legal;
  2. these unconstitutional processes include:
  • the irresponsible and reckless declarations by some quarters as to Malaysia being an Islamic State despite this not being the case and the stifling of free debate over such declarations (This should be compared and contrasted to the approach taken by the Government in 1988 when the then Chief Justice was removed on the following ground:
(charge 4) - Your attempt to restate the law generally along Islamic legal principles ignores the character of Malaysian society as one which is multi-religious and multi-racial with cultural differences. No responsible Government can allow the postulation of such views by the Head of the Judiciary without cause for consternation among its non-Muslim population. Furthermore your statement violates established principles of judicial interpretation widely accepted in the courts of Malaysia and in the Commonwealth.;
  • the re-writing of history to attempt to justify claims, for political reason or otherwise, that Malaysia is an Islamic State and a greater role for the perceived precepts of Islam in public life including declarations to the effect that this nation was founded by Muslims (consider the Government response to a written query by SUHAKAM as to Malaysia being an Islamic State, (published in SUHAKAM Annual Report 2003, pp 285-286) in which the following points were made);
o the nation was founded by Muslims;

o the Head of the Nation is a, and the government is in the hands of, Muslim(s);

o the majority of its citizenry are Muslims and most of their cultural and social elements are influenced by the culture of Islam;

o the Islamic umah (in Malaysia) is free to abide by Islamic Law (‘Syariat Islam’), and are even supported in this regard by the Government;

o systems to increase religious observance of ‘munakahat’ (religious rules pertaining to marriage) and ‘muamalat’ (rules pertaining to societal issues) are implemented all over the nation;

o Islamic education is taught from primary school to institution of tertiary education level and its quality are continuously being improved;

o The existence of Sharia courts and Sharia laws; and

o The existence of other Islamic institutions which expand the greatness of Islam.
  • continued use of divisive labels such as ‘Islamic State’ and the emphasis on the greater role of the precepts of Islam without regard to the sensitivities of all concerned communities nor of the ‘policy’ positions such declaration will take in the minds of lower ranking bureaucrats and administrators. Bearing in mind the close link between ethnicity and religion for the Malays, and the prevalence of Malays in the public administration, this has resulted in discriminatory practices that run counter to any notions of unity and equality. This takes on particular significance in the face of assertions of ‘Ketuanan Melayu’; • as a consequence of the foregoing, or otherwise, this has resulted in an increasing defiance of the Constitution and oaths to uphold the Constitution by public administrators;
  • the use of inflammatory language and religious incitement has not been adequately curtailed. Conversely, they have been allowed to shape government response to the subject of such language and incitement. Illustrating this is the directive to Article 11 to desist in its efforts to promote the Constitution and constitutionalism as a consequence of hostile and untruthful distortions that were given validity through State action. It is significant that much of what Article 11 stated or sought to state was given prominence on the front page of the New Straits Times on 06.08.2007 when declared by HRH The Regent of Perak;
It is imperative therefore that:
  • all State actors be made to appreciate that the Constitution is the supreme law;
  • the supremacy of the Constitution be reaffirmed;
  • mechanisms be put in place that ensure the appointment of persons to public office who are qualified and competent to discharge their functions and duties in a manner contemplated by the Constitution. The lack of such individuals in the public administration has been a key factor in the process that has led us to where we are as a nation. This can be corrected as long as there is adequate political will; and
  • the Attorney General’s Chambers be called upon to determine the state of affairs and make such recommendations as are necessary to strengthen the existing Constitutional structures if there is a need for the same. Such deliberations must be made public and be conducted in conjunction with civil society to ensure that all interests are taken into consideration. It is disconcerting to note that as of late the AG’s Chambers appears to have been at the vanguard of a push towards Islamisation. This is illustrated by the fact that the web-site declares as a mission statement the efforts of chambers to ensure that all civil laws are syariah compliant.
Article 11 wishes to express its gratitude for the opportunity afforded to it to present its views and to make representations. Article 11 also wishes to reaffirm its commitment to nation building and the Federal Constitution in light of the call by HRH The Regent Of Perak that civil society stands up and be counted.



The Riz Khan Interview

For those who missed it or had not realised that I was on the Riz Khan show with Haji Sulaiman, here's the link

The show looks at the role of Islam in Malaysia and the reasons underlying the recent controversies in light of assertions internationally that Malaysia is a moderate, progressive Muslim country. The issues are presented through our differing viewpoints. Though the nuances of the debate were beginning to emerge when the show ended, the show provides some useful insights.


Friday, August 10, 2007

Not Just A Matter Of Labels

Secular State, Islamic State, Muslim Country. I have been asked why be concerned over what we call ourselves. After all, does political rhetoric really have an impact on our lives?

I think there are two primary reasons why what we call ourselves is important and does have an impact.

The Undermining Of The Rule Of Law

Firstly, our democratic institutions are weak. In theory, the primary organs of state - the Executive, the Legislature, the Judiciary, the Attorney General, the Auditor General - are meant to operate independently and in constant supervision of the other organs. This process is what we refer to as the process of 'check and balance'. The independence which underpins is the 'separation of powers'.

The reality is that the separation of powers in Malaysia is illusory. The Government controls more than 90% of Parliament. In this way, the Executive controls Parliament. An attempt to suborn the Judiciary to Parliament was made in 1988 when the Constitution was amended to remove the entrenched power of the Judiciary to review executive action by limiting the jurisdiction of the High Court to matters vested in it by Federal Law. Leaving aside the constitutionality of the amendment and its effect, the popular notion, even within the Judiciary, is that there is Parliamentary Supremacy (as opposed to Constitutional Supremacy) in Malaysia.

Additionally, as I have previously written, the Prime Minister ultimately decides the appointment of judges (respect of the decisions of the Conference of Rulers could be argued as being a convention rather than a legal obligation). In this way, it could be said that the Executive controls the Judiciary and those who are appointed or promoted may, for one reason or the other, not necessarily be the most qualified or most capable. Seen from this perspective, there is in effect no check and balance. It could be said that the nation is in effect ruled by dictate or decree. Perhaps this is why the mainstream media is fixated on the views of the Prime Minister on almost everything and also why the wishes of the leadership elite is often seen as having force of law.

The foregoing is further complicated by a 'ketuanan melayu' policy articulated through an aggressive policy of affirmative action in favour of the majority Malay community and a close linkage between the Malay ethnicity and Islam. It is a truth that the civil service and the Judiciary is predominantly Malay who are, in turn, Muslim.

As more recent history has shown, this has allowed for a translation of the ambiguous statements of the leadership, particularly where Islam is concerned, into a belief on the part of administrators and bureaucrats that Islam, and as such its administrators, has a role to play in the governance of this country and has a more 'superior' role than other religions or faiths. This belief is given further foundation by the policy dictates that are seen to be conveyed by declarations that Malaysia is an Islamic State.

This has several implications. For one, it results in attempts to reinterpret law to make it more Islamic compliant. This is wrong in light of the understanding underlying the Fedeal Constitution. As has been judicially recognised, the founding fathers put in place a constitutional democracy in which public law was not meant to be predicated on any one religion.

Additionally, though it is often argued that Islam espouses universal values, in practice this is not necessarily the case. The practical Islam that we have been exposed to in Malaysia is one which is unforgiving and premised on punishment. The Islamic administration in this country seems more focused on form than substance.

Further, for administrative convenience and the ease of enforcement only selective versions of Islamic precepts determined to be acceptable are apermitted to become the basis of Muslim practice. In this way, we have seen a codification of a narrower swathe of Islam than the diversity of the religion itself contemplates. The Islamic law in this country is premised on the shafii madzhab or school (within the Sunni grouping) even though there is nothing objectionable about the other madzhabs. The Imams that founded these madzhabs were careful to ensure that their teachings did not become definitive. This appears to have been forgotten in our rush towards building, albeit on the quiet, an Islamic State.

In this context, a crucial question is who defines Islam for the purpose of reinterpretation of law and the development of an 'Islamic' policy. The monopoly over Islam potentially hurts Muslims as much as it does non-Muslims. The freedom of Muslims themselves to delve into God given diversity is in this way compromised.

The net effect is one where the Rule of Law is undermined resulting in the kind of controversies we have seen these last few years. No matter how you analyse and characterise these controversies, the painful truth is that injustices have been occasioned, more usually in the name of Islam.

Whither Unity

Secondly, labels are divisive. They exclude in as much as they include. One would have thought that as this nation turned 50 we would no longer be struggling with forging a national identity and that we would be striving as one nation.

Sadly, this is not the case and it is not difficult to see why. Continued emphasis on race and religion have led to alienation. They have also, riding on the back of the aggressive affirmative action campaign launched in 1969, created a context in which discrimination has become the norm in a way not countenanced by the Constitution. As I have said elsewhere, as long as article 153 of the Constitution remains in force I will recognise it as the law and for that reason accept the special status of Malaysa and the natives of Sabah and Sarawak. But the NEP and its successor policies has gone far beyond the contemplation of those who drafted article 153.

The extended campaign has also created a privilege rather than special right attitude amongst the Malay community (I am generalising). This attitude is fueled for political reason to an extent that many cannot see an inconsistency between the affirmative action policy and the universality required by Islam. The truth is that many non-Malay Muslims do not qualify for special privileges simply because they are not Malay.

In this murkiness, labels do have an impact. They fuel resentments, they entrench further the belief amongst that while all are equal, some are more equal than others. So, even if there is value in labels such as Islamic State, does this value outweigh the more pressing need to ensure that all of us feel like we have our rightful and equal place in this country? I think not.