How Many More Disasters Till We Take Climate Change Seriously?

Climate change. The Secretary-General of the United Nations (“UN”) sees it as ‘the defining issue of our era’. The international community see it as a serious issue and a great challenge to all of mankind (World Summit Outcome 2005, UN Doc A/Res/60/1). To combat the effects of climate change, the UN Framework Convention on Climate Change and the Kyoto Protocol were adopted. It has been almost 22 years since the adoption of the former and 9 years for the latter.

Both these conventions have failed to achieve its purpose of emission reduction due to ineffective implementation. Developed countries, which top the list of countries with highest carbon emissions, are unwilling to take active measures to comply with regulations imposed by environmental conventions. This is most likely because such measures would weaken a state’s political and economic strength.

Climate change and global warming refer to the increase in average global temperature. One of the most severe effects of climate change is the rise of sea level. This carries grave consequences on low lying island states. For example, a 0.49 meter rise in sea level would cause significant portions of Maldives to be severely inundated by 2100. At the current rate of sea level rise, 15% of its capital island, Male, where 30,000 of its nationals live, would be submerged by 2025 and 50% submerged by 2100.

Kiribati and Tuvalu will also be severely affected by climate change. They face the scenario of having their entire territory submerged underwater. This is what Hon Teleke P. Lauti, a member of the cabinet of Tuvalu, had to say on climate change:

“The sea is our very close neighbour. In fact, on the island where I live, Funafuti, it is possible to throw a stone from the one side of the island to the other. Our islands are very low-lying. When a cyclone hits us there is no place to escape. We cannot climb any mountains or move away to take refuge. It is hard to describe the effects of a cyclonic storm surge when it washes right across our islands. I would not want to wish this experience on anyone. The devastation is beyond description. This concern is so serious for our people, that the cabinet, in which I am a member, has been exploring the possibility of buying land in a nearby country, in case we become refugees to the impacts of climate change.”

Concerns raised by official from these countries have fallen to deaf ears in the international community. The rate of sea level rise is increasing, as noted by the Intergovernmental Panel on Climate Change.

Coming back to home, Malaysia has one of the highest rate of deforestation over the past few years. The issue of logging and government cronies has plagued this country since the 90’s. Deforestation has a big impact on climate change. It doesn’t take a genius to figure out why as climate change is caused by the build-up of carbon dioxide in our atmosphere.

Climate change is the cause for most of the recent natural disasters. Over the last two decades, the number of recorded natural disasters has doubled from some 200 to over 400 per year. I must point out that climate change causes change in rainfall patterns which leads to floods (The UN Refugee Agency: Climate Change, Natural Disasters and Human Displacement: a UNHCR Perspective).

Tons of summits and conferences have been organised to “combat” climate change. The fact is, it has been all talk and no action. In the case of submerging states, the superpowers are major contributors to climate change, but the states suffering are small and poor states. In a local context, a few individuals reap the profit from widespread logging, but the ones that suffer are thousands of innocent citizens.

One must really wonder, how can such human beings delve in their unconscionable wealth while thousands suffer due to their actions and inactions? Humanity still exist, but it is dead where it is needed the most.

Syariah Appeal Council: Destruction of the Basic Structure of our Constitution

Dato Seri Jamil Khir announced last month that a plan to set up a Syariah Appeal Council (“SAC”) with equal powers to that of the civil Federal Court was almost finished. Many lawyers and academicians criticised the move as it was deemed unconstitutional. I share the same view and I shall lay down the reasons on why such a system cannot be carried out in Malaysia.

We shall look at: first, the power of the civil courts; secondly, the power of the Syariah Courts; thirdly, the nature of our Constitution; and fourthly, why such a plan can’t be carried out.

Civil courts

The superior civil courts act as guardians of the Constitution. Their powers are derived from the Constitution itself and also relevant federal laws. The Constitution provides the High Court with “judicial powers” which has been widely defined by our courts. The removal of the said phrase after the 1988 amendment does not in any way impair the courts of its judicial power (see Public Prosecutor v Kok Wah Kuan [2008] 1 MLJ 1).

The High Court’s power to safeguard the Constitution can be discerned from Section 25, 30 and the Schedule of the Courts of Judicature Act 1964, and also Order 53 of the Rules of Court 2012.

The High Court also has inherent powers pursuant to its inherent jurisdiction. This power refers to the “common law powers of the court, which are residuary or reserve powers and a separate and distinct source of jurisdiction from the statutory powers of the court” (see R. Rama Chandran v The Industrial Court of Malaysia [1997] 1 MLJ 145).

The Federal Court has, apart from the powers above, exclusive jurisdiction over certain constitutional matters as stated in Article 128 of the Constitution. What is important to note is that, the civil courts draw their power from the Constitution.

Syariah Courts

Unlike the civil courts, the Syariah Courts owe their existence to the State legislature. It only comes into existence when the State makes law to establish it pursuant to the State list under the 9^th Schedule of the Constitution. In that regard, the position of the Syariah Courts are akin to that of the Sessions Courts and Magistrates’ Courts which are inferior courts (see Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101).

Therefore, the powers that can be conferred onto the Syariah Courts are limited to what is provide for under the State list. This does not include the jurisdiction to decide on constitutional matters.

Nature of our Constitution

It is well established that our Constitution is secular in nature. Historical documents such as the Reid Commission report, the 1957 White Paper and the Cobbold Commission report clearly show this.  This was judicially crystalized by the Supreme Court in Che Omar v Public Prosecutor [1988] 2 MLJ 55. For the exact wordings of the historical documents, do refer to my previous article (http://surendraananth.blogspot.com/2014/12/position-of-islamic-law-in-malaysia-in_14.html).

Setting up a SAC with Equivalent Powers

Now, just to make things clear, if the intended powers the SAC are limited to what is provided for under State list, then there wouldn’t be a problem.

The problem arises with the phrase, “equal powers”. To create a SAC which has equal powers with the superior civil courts, a constitutional amendment is definitely needed. I believe this has been stated by many lawyers.

It is my opinion that such an amendment cannot be made to the Constitution, as it destroys the basic structure of the Constitution. The Indian Supreme Court in Kesavananda Bharati v State of Kerala [1973] AIR SC 1461 regarded the following features as fundamental and thus, are non-amendable:

1.      Supremacy of the Constitution;

2.      Republican and democratic form of government;

3.      Secular character of the Constitution;

4.      Separation of powers between legislative, executive and judiciary;

5.      Federal character of the Constitution.

We are concerned with item 3 in the above list. The basic structure doctrine was recognised in Sivarasa Rasiah v Badan Peguam Malaysia [2010] 2 MLJ 333, where our Federal Court referred to the Indian Supreme Court decision above.

It is very clear that the civil courts are superior to the Syariah Courts. To create a SAC which has equal powers to the superior civil courts is akin to destroying the very fabric of the Constitution. Such an amendment would definitely mutate the secular nature of the Constitution.

It is true that our Constitution is a living document which is not carved in stone. However, an amendment of such magnitude would create a completely different document altogether. The Constitution permits an amendment, but not a revamp.

Position of Islamic Law in Malaysia in Light of the Transgender Case

The recent Court of Appeal decision on the transgender case received heavy criticism from certain quarters (hereby referred to as the “gainsayers”) who view the decision as a step backward in terms of the development of Islamic law. To the contrary, the decision should be applauded as it reflects the development of Constitutional law in Malaysia. It upholds the fundamental liberties entrenched in our Constitution and its secular nature. I write this article in reply to the gainsayers and also to show the position of Islamic law in Malaysia.

For ease of understanding, I will divide this article into two parts. We will look at: first, the framework for the exercise of legislative powers; and secondly, the status of Islam in Malaysia.

The Framework for the Exercise of State Legislative Powers

1.    It is admitted that the State Legislature can legislate on matters pertaining to Islam by virtue of Article 74(2) and List II, item 1, of the Ninth Schedule of the Constitution (hereby referred to as the “State List”). The present case and others before it come under the ambit of the phrase “against precepts of that religion (Islam)”.

2.    At this juncture, it is pertinent to point out that the popular argument adopted by the gainsayers is that the State’s right to legislate is sacrosanct once it falls under the State List, in particular under the umbrella of “against precepts of that religion (Islam)”. This is entirely misconceived.

3.    The following are the restrictions placed on the State’s legislative powers, EVEN IF the matter falls under the umbrella of “against precepts of that religion (Islam)”:

3.1 If the matter falls under the Federal List, the State cannot legislate on it. This is clearly reflected from the words, “except in regard to matters included in the Federal List” which appears right after “against precepts of that religion (Islam)”. In essence, this means that if a matter falls under the precept of Islam and also the Federal list, the Federal List prevails. Article 75 lends credence to framework that the Federal List takes precedence over the State List in instances of an overlap.

3.2 The State cannot legislate contrary to the Federal Constitution. In other words, in exercising its legislative powers, it must be in line with the provisions of the Federal Constitution. This position is garnered from Article 74(3), read together with Article 4(1) of the Federal Constitution. In our case, the State cannot legislate to the effect of prohibiting any fundamental rights guaranteed under Part II of the Federal Constitution, UNLESS it falls within any permissible exceptions in the said Article(s).

3.3 It is pertinent to note, that the State cannot, in ANY circumstances, legislate to the effect of prohibiting Freedom of Expression under Article 10 of the Federal Constitution. As provided for under Article 10(2), only Parliament can do so. This position was reinforced by the Supreme Court in Dewan Undangan Negeri & Anor v Nordin Salleh & Anor [1992] 1 CLJ 72 (Rep).

4     To put it succinctly, even if a matter is prohibited in Islam, expressly or otherwise, it CANNOT be made an offence under Malaysian Islamic law if it runs foul with any constitutional provision. Using the transgender case as an example, even if cross dressing is prohibited in Islam, it cannot be made an offence under Malaysian Islamic law as such prohibition is a violation of the fundamental rights guaranteed under Articles 5(1), 8(1), 8(2), 9(2) and 10(1)(a) and does not fall within any exceptions under the said Article(s). To put the nail on the coffin, as cross-dressing falls under Article 10(1)(a), only Parliament can prohibit such right.

Status of Islam in Malaysia

5     In discussing the issue, one can’t run away from the topic of the status of Islam in Malaysia. The Gainsayers frequently aver that Malaysia is an Islamic State. I would like to take this opportunity to point out that Malaysia is definitely NOT an Islamic State. This has been said many times but a reminder is needed.

6     Article 3 of the Federal Constitution merely states that Islam is the official religion of the Federation. This does not equate to Malaysia being an Islamic State. The following excerpts from historical documents clearly show this

6.1 Federation of Malaya Constitutional Commission, 1956-1957 Report (The Reid Commission) – Paragraph 169, “We have considered the question whether there should be any statement in the Constitution to the effect that Islam should be the State religion. There was universal agreement that if any such provision were inserted it must be made clear that it would not in any way affect the civil rights of non-Muslims. In the memorandum submitted by the Alliance it was stated the religion of Malaysia shall be Islam. The observance of this principle shall not impose any disability on non Muslim nationals professing and practising their own religions and shall not imply that the State is not a secular State.”

6.2 Federation of Malaya Constitutional Proposals 1957 (White Paper) – Paragraph 57, “There has been included in the proposed Federal Constitution a declaration that Islam is the religion of the Federation. This will in no way affect the present position of the Federation as a secular State, and every person will have the right to profess and practice his own religion and the right to propagate his religion, though this last right is subject to any restrictions imposed by State law relating to the propagation of any religious doctrine or belief among persons professing the Muslim religion.”

6.3 Report of the Commission of Enquiry, North Borneo and Sarawak, 1962 (Cobbold Commission) – Paragraph 148(e)(ii), “Taking these points fully into consideration, we are agreed that Islam should be the national religion for the Federation. We are satisfied that the proposal in no way jeopardizes freedom of religion in the Federation, which in effect would be secular.”

7     The above excerpts were judicially crystalized by the Supreme Court in Che Omar v Public Prosecutor [1988] 2 MLJ 55. The Supreme Court expressly noted that the Federal Constitution is secular in nature.

8     The Gainsayers reply to the above have been that the situation has changed since the introduction of Article 121(1A) to the Federal Constitution. It is posited that the said amendment was made to avoid conflicts between the civil and syariah court’s decision, as put by the late Professor Ahmad Ibrahim. It has nothing to do with the position of Islam in Malaysia.

9     Furthermore, the late Professor Ahmad Ibrahim himself, who was instrumental in the development of Islamic Law in Malaysia, accepted that Malaysia is not an Islamic State. In his writing entitled “The Position of Islam in the Constitution of Malaysia”, he stated: “Although the Alliance Party had insisted that Islam should be declared in the Constitution as the official religion of the Federation, it did not ask that the constitution should also declare, as did the Pakistan Constitution, that the State shall be an Islamic State”.

Conclusion

10  I welcome any criticism or rebuttal to my abovementioned arguments. I believe this article is needed in light of the rising extremism in our country.

11  To conclude, the Federal Constitution was written to protect the rights of all citizens in this country. The protection works both ways. The constitution protects us, and we protect the constitution in its intended nature, moderation.