Thursday, January 29, 2015

Make The Rukunegara The Preamble Of The Constitution by Dr. Chandra Muzaffar

From articles and letters in the media, meetings and seminars among the intelligentsia and conversations with people from different walks of life, it appears that there is a great deal of concern about ethnic relations in the country.

Concerned Malaysians should focus their energies on how together we can improve the ethnic situation in this beloved land of ours. Yayasan 1Malaysia would like to suggest the following five approaches.

One, Malaysians should imbibe the fundamental principles of the Malaysian Constitution. They should understand in depth the “just balance” embodied in this cherished document. This balance should guide each and every Malaysian as she seeks to exercise her rights and discharge her responsibilities towards the nation.

By privileging the position of the Malay Rulers, the Malay language and Islam, the Constitution acknowledges that the Malaysian Federation had evolved from Malay polities, while at the same time it is cognizant of the contemporary environment reflected in the conferment of citizenship upon the non-Malay communities and mirrored in the rights accorded to their languages and religions. 
Likewise, it balances the status of the indigenous people with the interests of the then newly domiciled non-indigenous communities. The powers of the Central government are juxtaposed with the powers of the states within a Federal system. Individual and collective freedoms are balanced with the demands of public order.

Through our schools and universities, community centres and religious-cum-cultural outfits, public institutions and private businesses, political parties and civic organizations, we should have inculcated in the nation this idea of a justly balanced constitution from the first day of Merdeka.  Even today after 57 years of Independence there is really no concerted attempt to instill in our people a deeper appreciation of the Constitution and its significance for their lives.  This is one of the reasons why we have failed to create greater social cohesion within our diverse population.

Two, we have also failed to harness the strengths of the Rukunegara to forge a deeper understanding among our people of the aspirations of this nation. The five goals and the five principles of the Rukunegara announced to the nation on Merdeka Day, 31st August 1970, should have been adopted by the Malaysian Parliament as soon as parliamentary rule was restored in February 1971. Even more important, the Rukunegara should be incorporated into the Malaysian Constitution as its preamble.

Our Constitution does not have a preamble. Since the Rukunegara lays out goals and principles for the nation, it is ideally suited as a preamble--- a preamble that would provide Malaysians with a clear conception of their mission and their destiny. It envisions greater unity among the people; a democratic way of life; a just society where the prosperity of the nation is equitably shared; a liberal approach towards the nation’s rich and diverse cultural traditions; and a progressive society oriented towards modern science and technology. To achieve these goals Malaysians should be guided by belief in God; loyalty to king and country; the sanctity of the constitution; the rule of law; and good conduct and behavior.

The Rukunegara was given some emphasis in the public sphere for a few years after the death of Tun Abdul Razak who led the consultative process that gave birth to this far-sighted instrument of nation-building that goes beyond ethnic and religious boundaries. However, it was sidelined from the eighties onwards. Because it was denied a role in bringing people together, the ensuing vacuum was filled by other forces that were gathering momentum at the level of the masses. One of these forces was ‘Islamic resurgence’ which was largely propelled by rapid Malay urbanization and the intensified ethnic dichotomization of society. The other was increasing non-Malay alienation and anger shaped by some of the negative consequences arising from the implementation of the New Economic Policy (NEP), divisive communal political rhetoric and the dramatic expansion of Chinese education.  Indirectly, therefore, the marginalization of the Rukunegara made it easier for communal and sectarian elements to occupy the public space.

Three, neither the adoption of the Rukunegara as the Constitution’s preamble nor the socialization of the nation into the Constitution will improve ethnic relations if justice is not seen to be done in concrete terms. There should be a holistic approach to justice that is fair to everyone, regardless of ethnic, religious, regional or gender affiliation. Such an approach would be in consonance with the spirit of the Constitution and the Rukunegara.   

What this means is that the poor and the needy should be helped because they are poor and needy. The widening gap between the have-a-lot and the have-a-little should be closed. There should be no hindrance to non-Malay mobility in the public and civil services just as there should be no obstacles to the advancement of Malay and other non-Chinese staff in Chinese owned corporations. Efforts to make various sectors of the economy more multi-ethnic should continue.

Four, governance in both the public and private sectors should fulfil the highest standards of honesty and competence. In similar vein, the delivery of goods and services should be efficient. These aspects of good governance impact indirectly upon ethnic relations since perceptions of who manages or delivers a service, or who allegedly gives or receives a bribe are sometimes conditioned by ethnic sentiments.

Five, Malaysians should be made aware in a much more conscious manner that they share a multitude of spiritual and moral values as human beings and as inheritors of diverse religious and cultural traditions. From compassion and love to kindness and humility, from living in harmony with the environment to the primacy of the family, the values that unite us are far more powerful than the differences that divide us. It is a shame that shared values as an approach to forging inter-ethnic and inter-religious understanding and harmony has yet to emerge as the central theme of cultural and religious discourse in the country.

Nonetheless, ordinary Malaysians have demonstrated when confronted by grave challenges such as the recent floods in various states that they are capable of heart-warming acts of kindness and compassion transcending religious and ethnic barriers. In their deeds, lie the seeds of hope for genuine unity in the Malaysia of tomorrow.

Thursday, January 15, 2015

Noam Chomsky on Charlie Hebdo: one man's terrorism is another's war on terror

THE WORLD reacted with horror to the murderous attack on the French satirical journal Charlie Hebdo. In the New York Times, veteran Europe correspondent Steven Erlanger graphically described the immediate aftermath, what many call France’s 9/11, as “a day of sirens, helicopters in the air, frantic news bulletins; of police cordons and anxious crowds; of young children led away from schools to safety.

It was a day, like the previous two, of blood and horror in and around Paris.” The enormous outcry worldwide was accompanied by reflection about the deeper roots of the atrocity. “Many Perceive a Clash of Civilizations,” a New York Times headline read.
The reaction of horror and revulsion about the crime is justified, as is the search for deeper roots, as long as we keep some principles firmly in mind. The reaction should be completely independent of what thinks about this journal and what it produces.
The passionate and ubiquitous chants “I am Charlie,” and the like, should not be meant to indicate, even hint at, any association with the journal, at least in the context of defense of freedom of speech. Rather, they should express defense of the right of free expression whatever one thinks of the contents, even if they are regarded as hateful and depraved.
And the chants should also express condemnation for violence and terror. The head of Israel’s Labor Party and the main challenger for the upcoming elections in Israel, Isaac Herzog, is quite right when he says that “Terrorism is terrorism. There’s no two ways about it.”
He is also right to say that “All the nations that seek peace and freedom [face] an enormous challenge” from murderous terrorism – putting aside his predictably selective interpretation of the challenge.
Erlanger vividly describes the scene of horror. He quotes one surviving journalist as saying that “Everything crashed. There was no way out. There was smoke everywhere. It was terrible. People were screaming. It was like a nightmare.” Another surviving journalist reported a “huge detonation, and everything went completely dark.”
The scene, Erlanger reported, “was an increasingly familiar one of smashed glass, broken walls, twisted timbers, scorched paint and emotional devastation.” At least 10 people were reported at once to have died in the explosion, with 20 missing, “presumably buried in the rubble.”
These quotes, as the indefatigable David Peterson reminds us, are not, however, from January 2015. Rather, they are from a story of Erlanger’s on April 24 1999, which made it only to page 6 of the New York Times, not reaching the significance of the Charlie Hebdo attack. Erlanger was reporting on the NATO (meaning US) “missile attack on Serbian state television headquarters” that “knocked Radio Television Serbia off the air.”
There was an official justification. “NATO and American officials defended the attack,” Erlanger reports, “as an effort to undermine the regime of President Slobodan Milosevic of Yugoslavia.” Pentagon spokesman Kenneth Bacon told a briefing in Washington that “Serb TV is as much a part of Milosevic's murder machine as his military is,” hence a legitimate target of attack.
The Yugoslavian government said that “The entire nation is with our President, Slobodan Milosevic,” Erlanger reports, adding that “How the Government knows that with such precision was not clear.”
No such sardonic comments are in order when we read that France mourns the dead and the world is outraged by the atrocity. There need also be no inquiry into the deeper roots, no profound questions about who stands for civilization, and who for barbarism.
Isaac Herzog, then, is mistaken when he says that “Terrorism is terrorism. There’s no two ways about it.” There are quite definitely two ways about it: terrorism is not terrorism when a much more severe terrorist attack is carried out by those who are Righteous by virtue of their power.
Similarly, there is no assault against freedom of speech when the Righteous destroy a TV channel supportive of a government that they are attacking.
By the same token, we can readily comprehend the comment in the New York Times of civil rights lawyer Floyd Abrams, noted for his forceful defense of freedom of expression, that the Charlie Hebdo attack is “the most threatening assault on journalism in living memory.”
He is quite correct about “living memory,” which carefully assigns assaults on journalism and acts of terror to their proper categories: Theirs, which are horrendous; and Ours, which are virtuous and easily dismissed from living memory.
We might recall as well that this is only one of many assaults by the Righteous on free expression.
To mention only one example that is easily erased from “living memory,” the assault on Fallujah by US forces in November 2004, one of the worst crimes of the invasion of Iraq, which opened with occupation of Fallujah General Hospital.
Military occupation of a hospital is, of course, a serious war crime in itself, even apart from the manner in which it was carried out, blandly reported in a front-page story in the New York Times, accompanied with a photograph depicting the crime.
The story reported that “Patients and hospital employees were rushed out of rooms by armed soldiers and ordered to sit or lie on the floor while troops tied their hands behind their backs.”
The crimes were reported as highly meritorious, and justified: “The offensive also shut down what officers said was a propaganda weapon for the militants: Fallujah General Hospital, with its stream of reports of civilian casualties.”
Evidently such a propaganda agency cannot be permitted to spew forth its vulgar obscenities.

Thursday, January 8, 2015

The power of different courts by Prof Shad Saleem Faruqi - The STAR

In a country with a supreme Constitution, the courts cannot be ousted on issues of constitutionality.
LIKE most legal systems, Malaysia has many streams of justice. The Magistrates Courts, Sessions Courts, High Courts, Court of Appeal and Federal Court constitute our “civil court” system. Side by side with civil law, other systems of law and mechanisms for dispute resolution exist.
> Each State has its own hierarchy of Syariah Courts. These courts apply enacted
Islamic law and Malay adat in spheres limited and defined by Schedule 9, List II, Paragraph 1.
> Sabah and Sarawak have native laws enforced by Native Courts.
> Under Articles 182-183 of the Federal Constitution, a Special Court exists to try cases by or against Malay Rulers.
> There are scores of statutory tribunals known by a variety of names like Industrial Court, Court Martial, Valuation Tribunal, Commissioner of Income Tax and Disciplinary Committees and Tribunals.
> Private sector organisations like clubs, businesses and industries have their own domestic tribunals.
Such “legal pluralism” beautifully recognises the multiplicity of fountains from which our law emanates. But it also creates conflicts of jurisdiction. Up to now, the general statutory and judicial approach was to respect the separateness of parallel streams of justice and to accept that a valid decision of a special court or tribunal was final and conclusive and not appealable to the ordinary civil courts.
To this separateness and autonomy, one exception was always in place. By virtue of the supreme Constitution and many statutes like the Specific Relief Act, the superior civil courts retained a supervisory, “review power” to examine the constitutionality and legality of all determinations by inferior courts, tribunals and quasi-judicial bodies.
In the years since the insertion of Article 121(1A) which states that civil courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts”, the supervisory power of the High Court in relation to syariah laws and syariah court decisions has come under severe questioning.
There are views that the Federal Constitution “does not limit the Islamic code”, that “syariah courts are not subject to the Constitution” and are of equal status to civil courts.
These views have undoubted populist appeal but questionable legal basis.
They fail to distinguish between what is aspirational and what is the legal reality. The Federal Constitution’s scheme of things is quite different.
Constitutional supremacy: According to Article 4(1), the Constitution is the supreme law of the Federation. No person, authority or institution, including a State Assembly or a syariah court, is above the Constitution.
Judicial review: Any law, whether federal or state, primary or secondary, civil or religious, pre-Merdeka or post-Merdeka, is subject to constitutional review by the superior civil courts in accordance with Articles 4(1) and 162(6). It is established law in Latifah Mat Zin v Rosmawati Sharibon (2007) that questions of constitutionality are for the civil and not the syariah courts to adjudicate upon.
Islam: Though Islam has a most exalted position as the religion of the Federation, the syariah is not the basic law of the land. In Che Omar Che Soh (1988), it was held that the Constitution and not the syariah is the litmus test of legality.
Article 3(1) on Islam as the religion of the Federation is qualified by Article 3(4), which clearly states that “nothing in this article derogates from any other provision of the Constitution”. This means that Article 3(1) does not override any other provision of the Constitution.
Article 121(1A): Under Article 121(1A), the syariah courts are immune from interference only as long as they remain within their jurisdiction, i.e. within powers conferred on them by state enactments. State Enactments in turn must confine themselves to the 26 topics allocated to them by Schedule 9 List 2 Paragraph 1.
Thus, a Muslim marriage or divorce is outside the purview of the civil courts. But if the State Enactment violates the Federal Constitution, the civil courts can invalidate it. Take, for example, the recent Negri Sembilan cross-dressers’ case.
If a Syariah Court acts unconstitutionally, e.g. it tries a non-Muslim for a syariah offence or it dissolves a civil marriage in which one party is a non-Muslim as in the Indira Gandhi case, the High Court is empowered to declare otherwise.
Likewise, if syariah officials act illegally as in the 2013 Borders Bookstore case, where they unlawfully seized a book that was not yet banned and then interrogated a non-Muslim employee of the bookstore which they have no power to do, the civil courts can issue the necessary declaration.
In a country with a supreme Constitution, the courts cannot be ousted on issues of constitutionality. For example, under the Second Schedule of the Constitution, Part III, Para 2 “A decision of the Federal Government (on deprivation of citizenship) shall not be subject to appeal or review in any court”. Despite such explicit language, courts have been willing to examine the exercise of the minister’s discretion.
Status of syariah courts: The status of syariah courts is determinable by looking at the mode of their creation; matters within their jurisdiction; persons subject to their control; and penalties they may impose.
The High Court, the Court of Appeal and the Federal Court are established by the Federal Constitution. In the appointment of judges to these courts, the Prime Minister, the top judges, the Yang di-Pertuan Agong and the Conference of Rulers are involved.
In contrast, syariah courts are not created by the Federal or State Constitutions but are established by ordinary State Enactments. Most of the safeguards available to superior court judges are not conferred on syariah judges.
Syariah courts do not have a general power to try all issues of Islamic law. According to Schedule 9, List II, Para 1 only the following are within their jurisdiction: 25 personal law matters plus power to punish offences against the precepts of Islam except in relation to matters in the Federal List or covered by federal law. Almost all hudud offences like murder, robbery, theft and rape are triable by federal courts and, therefore, outside the jurisdiction of syariah courts. Likewise, homosexuality, gambling and betting are penal code offences.
Syariah courts have jurisdiction only over persons “who profess the religion of Islam”. A non-Muslim is not subject to the syariah court. His acquiescence is irrelevant. Jurisdiction comes from law, not from consent.
Under the Syariah Courts Criminal jurisdiction Act 1965, Syariah courts have the power to impose six strokes of the rotan, RM5,000 fine and three years’ jail. In comparative terms, this is lesser than the jurisdiction of a Magistrates Court!
It should be clear, therefore, that on existing law it is not correct to attribute to enacted Islamic law or to syariah courts a legal superiority over constitutional provisions and total immunity from constitutional review by the civil courts.
Of course such an aspiration may come to pass one day, if the pace and range of Islamisation continues. But we are not there yet. The Constitution is still supreme. Proponents of “one country, two systems” or two equal and parallel legal systems have to be level-headed about the legal, political, economic and social implications of such a significant change to the constitution’s basic structure.
Any proposal for change must be accomplished in accordance with constitutional procedures and not simply by the might of public opinion. Under Articles 159(5) and 161E, the consent of the Conference of Rulers and the Governors of Sabah and Sarawak will be needed.
> Prof Shad Faruqi is Emeritus Professor of Law at UiTM. He wishes all readers a Happy New Year. The views expressed here are entirely the writer’s own.