JAKIM Subverts the Constitution yet again

Introduction

Once again, JAKIM and its organs decides to come up with a policy that completely perverts the Constitution. This time it is an updated entertainment guideline that was approved by the 107^th Convention of the National Fatwa Committee (“Guideline”). I write this article to elucidate the powers of the Islamic agencies and how the Guideline goes way beyond such power.

Nature of our Constitution

It is just appalling on how certain quarters just can’t accept the fact that our Constitution is secular in nature. The Reid Commission Report of 1956-57, the White Paper 1957, the Cobbold Commission Report 1962 and even the Supreme Court has confirmed this.

Powers of the Islamic bodies

The State List under the 9^th Schedule of the Constitution very clear states that States have the power to enact Islamic law, which is applicable only to ‘persons professing the religion of Islam’. Each State has their own respective Islamic Religious Council and Fatwa Committee. What is clear is the Islamic bodies under the Federal and State government can only exercise their limited powers on Muslims. Their power does not even extend to companies or corporations that are wholly owned by Muslim persons. ‘Persons’ here only refers to natural persons.

The Guidelines

Now, these Guidelines are far ranging at are aimed at all events organised for the general public. Audiences for these events would obviously include non-Muslims. In the upshot, the Guidelines would severely affect the rights on non-Muslims. JAKIM nor the Fatwa Committee has the power to interfere with the rights of non-Muslims.

Let’s use night clubs as an example. The establishment of such outlets are legal and non-Muslims are allowed to do whatever they want as long as it is within the purview of the law. Muslims on the hand, may have their access into such clubs restricted by the Islamic authorities. Now let’s apply the logic behind the Guidelines on night clubs. It is akin to banning the establishment of night clubs all together since it violates Islamic principles.

What the Islamic agencies can do, at most, is to restrict the access of Muslims into events that violate Islamic principles within the framework of the Constitution. Such a move would require new provisions in the various State Islamic Enactments or an issuance of a Fatwa by the National or State Fatwa Committees. The Islamic agencies have no right what so ever to interfere with the legitimate rights of non-Muslim to such entertainment.

Conclusion

The Director-General of JAKIM did concede that the Guideline is not binding as it is not an official Fatwa. However, it is illegal as JAKIM is clearly trying to subtly enforce it. It is really sad to see this country heading in a direction that is completely at odds with the Constitution. The Constitution is the supreme law of this land, nothing stands above it, everything stands below it.

Prevention of Terrorism Act – Courts can Review Detention Order

The Prevention of Terrorism Bill (“Bill”) was tabled in Parliament recently. Various parties deprecated the Bill for obvious reasons. I would like to highlight one of the many criticisms of the Bill, which is on judicial review. The public concern here is that the Prevention of Terrorism Act (“POTA”) would be misused to detain politicians and activist, instead of actual “terrorist”.

Ouster Clauses in General

Section 19 of the Bill is an ouster clause. In essence, it excludes the power of the Courts to exercise its inherent power to review the decision of the board to issue a detention order. Many people jumped to the conclusion that the Court would completely powerless with this clause. This is entirely misconceived. Section 19 is worded similar to many other ouster clauses in other laws. What is essential here is that the courts can review the decision if it concerns “compliance with any procedural requirement in this Act governing such act or decision”. At this juncture, many might think that the term “procedural requirement” gives rise to a narrow room for review, or rather, a façade of hope.

Courts can Review Detention Orders made without Jurisdiction

The term “procedural requirements” includes jurisdictional requirements. The Privy Council in Anisminic v Foreign Compensations Commission [1969] 2 AC 147 stated, “If Parliament has enacted that provided a certain situation exists then a tribunal may have certain powers, it is clear that the tribunal will not have those powers unless the situation exists”. In other words, the power to issue a detention order would only exist if conditions precedent to the exercise of that power is fulfilled. This test has been accepted by our Federal Court. The next question is, what are these conditions?

Conditions Precedent to Invoke Jurisdiction

The detained person must fall within the ambit of the POTA as Section 19 very clearly states, “decision made by the Board in the exercise of its discretionary powers in accordance with this Act”. The long title and preamble of an Act has the same binding effect as any other part of the Act. The long title and preamble reads:

“An Act to provide for the prevention of the commission or support of terrorist acts involving listed terrorist organizations in a foreign country or any part of a foreign country and for the control of person engaged in such acts and for related matters.                                               

WHEREAS action has been taken and further action is threatened by a substantial body of persons both inside and outside of Malaysia which is prejudicial to the security of Malaysia or any part of Malaysia;

AND WHEREAS Parliament considers it necessary to stop and prevent such action;

NOW, THEREFORE, pursuant to Article 149 of the Federal Constitution, IT IS ENACTED by the Parliament of Malaysia as follows:”

Read together with Article 149, the following conditions must be met before the Board is invested with power to detain a person:

1.    Action has been taken by a substantial body of persons (“body”). The detainee must be a member of such a body;

2.    Further action is threatened by such body, and as such the detained person;

3.    The action referred to above must be an act of terrorism, or, in support, or in relation to an act of terrorism; and

4.    The acts of terrorism mentioned above must involve a terrorist organization as declared under Section 66B and 66C of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001

If the conditions above are not fulfilled, the detention order can be struck off by the courts as the procedural requirement of jurisdictional competence is not complied with. This argument was mounted in the habeas corpus application of Raja Petra Kamarudin back in 23^rd September, 2009. In that case, the Home Minister issued a detention order against Raja Petra under the ISA. The ISA had an ouster clause similar to Section 19. In what was the first successful ISA habeas corpus application, the High Court ordered the release of Raja Petra as the Home Minister was without jurisdiction to issue the order. In essence, the High Court found that Raja Petra was not a member of a substantial body of persons that had acted in way as contemplated by the preamble of the ISA. The decision was appealed all the way to the Federal Court, where the appeal was dismissed on technical grounds. As such, the High Court decisions stands as law.

Conclusion

It is clear the POTA can only be used for very limited grounds as provided for under the long title and preamble. It does not provide room for abuse or misuse. Despite the ouster clause, the courts are still vested with power to ensure that the POTA is applied lawfully. Whether or not the courts will exercise such power, is an entirely different question.

The Kenyan University Massacre: Highlighting the Discriminate Reactions of Society at all Levels

I write this not as a form of banter or of ranting, but of what I believe is the true state of affairs in a society that is largely superficial. The very recent massacre in a Kenyan university has provided me the scintilla to write what should have been, or has been said many times.

On September 11, 2001, the United States (“US”) suffered the worst terrorist attack in its history which resulted in the loss of approximately 3000 lives. The attack drew opprobrium from all corners of the world. The US reacted with a war against “terrorism”, and a wave of “islamophobia” insidiously swept in. The war in Iraq and Afghanistan claimed approximately 115,000 lives. Dreadful human rights violations betided in Guantanamo Bay, where victims were innocent Muslims. Putting that on hold, let’s look at what happened in Palestine. The conflict in Palestine has taken tens of thousands of lives since 1948. In the Gaza hostilities alone, the United Nations reported that 7 out of 10 Palestinians killed were civilians (approximately 2,100 Palestinians were killed). Considerable support for Palestine and carping against Israel came from the Muslim community. The US threw its support behind Israel, and has from the very beginning, employed various tactics to impede Palestine’s access to an effective forum for the discussion and possibly, a fair solution to the conflict. The reactions from the rest of the globe were largely divided, when it clearly should not have been so.

Moving to a much smaller scale, on 7 January 2015, two assailants killed 11 people in the offices of the French satirical weekly newspaper, Charlie Hebdo. The international community reacted strongly. On 11 January 2015, approximately 2 million people including more than 40 world leaders led a rally of national unity in the heart of Paris. In contrasts, the international community, albeit reacted, but in a more subdued way, towards numerous other massacres which claimed more lives. The Sri Lankan civil war claimed the lives of approximately 40,000 Tamil civilians. The Muslim Rohingya people in Myanmar have continued to suffer from grave human rights violations since 1978, with hundreds massacred and over a hundred thousand forcefully displaced. Countless massacres have occurred throughout the Middle-East. The civil war in Sierra Leon has left over 50,000 people dead. The massacre in the Kenyan university has claimed the lives of approximately 150 students. The middle-east and the African region have seen countless massacres.

The impetus of providing the above facts is to outline the dissimilitude of the reactions of the international community towards different events. It could be due to, amongst others, political, racial, religious or financial reasons. At a slightly different dimension, individuals seem display the same level of thought, albeit for different reasons. For example, I couldn’t help but notice that almost 70 percent of my Facebook friends mourned the passing of Paul Walker on their Profile Page. However, when Irene Fernandez (leading Human Rights activist) passed away, only a few Facebook friends shared similar sentiments. The same can be said on the various massacres taking place all over the world.

Everyone has the right to express on what they believe claims priority. However, I believe that as human beings, we have an innate obligation to uphold humanity in its basic form, in which ever way suits us most according to our individual strengths. Society, at all levels, particularly in regards to the human rights violations and the loss of human lives, needs to act and react regardless of race, religion, and personal gain in all its forms. In an era where boundaries between the international community are diminishing, the need for society to fully comprehend that all human beings are equal is crucial.

Some, or many, might disagree with me. Some might see it as a utopian ideology. However, hope is what drives us when all else seems bleak. After all, it is humanity that makes us human beings, for without it, we are no different than any other being in this world.