Gay Marriages or the Future of Human Beings?

The most talked about topic at the moment is the decision of the US Supreme Court, which, perhaps with good reason, overshadowed other news. Don’t get me wrong, I think it is reason to celebrate, but it would be great if the public would be equally passionate on other issues, such as, let’s say, the survival of human beings!

One news which deserves far greater recognition was the decision of the Dutch court in holding the state responsible for the dangers caused by climate change. This decision was the first of its kind and more of it is very much needed. I can’t stress the urgency to address the issue of climate change. Most governments (perhaps ignorant), and even the public in general are not aware of the dire situation we are in. On that note, there is no point in celebrating gay marriages if human beings have no future to begin with. Now let me point out to you why the issue of climate change supersedes all other forms of concern.

Rising sea level

The ocean, lovely to indulge in when calm, but when turns violent, can be the most devastating form of destruction. The rise of sea level is insidious in nature. We might not realise it, but the effects penetrate into our very existence. Did you know that the two low-lying island states would perish underwater within the next 100 years? Oh wait, most wouldn’t even have heard of these states. Kiribati and Tuvalu.

The Intergovernmental Panel on Climate Change’s (“IPCC”) most conservative estimate suggest that global sea level will increase 8 to 30 inches above 1990 levels by 2090. The National Academy of Science predicts that based on the 2009 levels, sea level could increase anywhere between 16 inches to 56 inches. A 36 inch rise of sea level would submerge Maldives.

Do you think Malaysia is exempt from this? Many of our coastlines in Kedah, Kelantan, Sabah and Sarawak will be affected by rising sea levels and will be underwater by the end of the century. 31% of the population in Peninsular Malaysia lives within the coastal zone. A substantial part of the coastal zone is occupied by important industries (agriculture and fisheries) contributing large amounts to our economy. This in turn would affect the livelihood of millions of people. It would eventually boil down to a scenario of mass internal migration, but where exactly are they going to migrate to?

Natural Disasters and Extinction

The world is already five times as dangerous and more disaster prone than it was in the 1970’s because of climate change (World Meteorological Organisation). Let me put things in perspective here. From 1971-1980, we had 743 natural disasters. From 2001-2010, we had 3,496 natural disasters.

There is a drastic increase in floods and storms, but the new emerging killer are heat waves. Heat waves was not even a registered threat back in the 1970’s. By 2010, they represent the leading cause of deaths in natural disasters along with storms. Climate change also renders coastal flooding more severe. The number of floods from 2001-2010 was almost 8 times more than in 1971-1980.

The IPCC has confirmed that the rising temperature is causing more floods and dangerous heatwaves. Based on the current trend of fossil fuel burning, there could be a temperature increase of between 3.7C and 4.8C by the end of the century. A warming of beyond 4C would likely result in substantial species extinction and impacts on normal human activities (IPCC).

Malaysia? The severity of the recent floods? The drastic weather and the severe heat we are facing now? I’ll let the facts speak for itself. Imagine the catastrophic outcome with our current disaster management system in place.

Conclusion

The international community has held various discussions, formed numerous committees and drafted multiple treaties to address the issue of climate change. Has the situation improved? No. Why? There is a lack of political will. The last form of hope when all else fails are the courts. The Dutch court in its recent decision has provided us that hope. We need more decisions like this to compel the states to take action. We need the public to be aware of what is happening, as they are ultimately the ones that set the wheels of change in motion. Climate change is a global phenomenon. Malaysia by itself can’t do much. What it can do is to prepare itself for the storm that is coming. It is the public that must provide the stimulus for change.

The History behind the Federal Constitution

Introduction

Before we go into the discussions which eventually led to the drafting of the Constitution, it is important to provide a brief background on the history of Malaya after the 1940’s. This article will focus on the principles and/or features of the Constitution which are currently under attack and undermined by certain quarters.

Formation of the Federation of Malaya

In the early 1940’s, during the Japanese conquest, the territories of Malaya were divided into three main regions. The Straits Settlements consisted of Penang Island, Province Wellesley, Malacca, Singapore, Labuan, the Cocos Islands and Christmas Island. The Federated Malay States (“FMS”) consisted of Negeri Sembilan, Pahang Perak and Selangor. The Unfederated Malay States (“UFMS”) consisted of Johore, Kedah, Kelantan, Terengganu and Perlis.

In 1946, after the Japanese occupation was over, Malaya was under British military administration. Malaya was moulded into a crown colony known as the Malayan Union, consisting of FMS, UFMS and the Strait Settlements with the exception of Singapore. The idea at that material time was to prepare the colony for independence. However the intended arrangement would, if implemented, weaken the sovereignty of the Malay rulers and establish equality between the Malays and non-Malays. The Malayan Union constitution never got under way and was replaced in 1948 by the Federation of Malaya Agreement (“FMA”).

The FMA was the first Malayan national constitution, which ultimately established the Federation of Malaya (the “Federation”). The FMA established the position of the High Commissioner, who was effectively the head of the state. The FMA provided a framework for the various bodies such as, amongst others, the Council of Rulers, the Executive Council, the Federal Legislative Council (the “Council”) and the Judiciary.

The first election to the Council was held in July 1955. The Alliance, consisting of the United Malay National Organization (“UMNO”), the Malayan Chinese Association and the Malayan Indian Congress, won fifty-one of the fifty-two seats contested. Tunku Abdul Rahman, the then President of UMNO and the Alliance, became the Chief Minister of the Government.

Establishment of The Reid Commission

Following the elections, the desire for political independence and complete sovereignty grew stronger. In August 1955, the United Kingdom (“UK”), the Rulers and the Alliance Government agreed to hold a conference in London to discuss plans for an establishment of a federal constitution. A conference was held in January 1956 in London and attended by representatives of the Rulers, the Chief Minister of the Federation with three other ministers, and the High Commissioner with his advisers. The Conference agreed that, amongst others, a full self-government and independence within the Federation should be proclaimed by August 1957 and that a Commonwealth Constitutional Commission should be appointed to make recommendations for a Constitution for the Federation (the “Reid Commission”). The Reid Commission was headed by Lord Reid (British judge), Sir Ivor Jennings (Master of Trinity Hall, Cambridge), Sir William McKell (former Governor General of Australia), Mr. B. Malik (former Chief Justice of the Allahabad High Court) and Justice Abdul Hamid (West Pakistan High Court).

The terms of reference of the Reid Commission were, essentially, to make recommendations for a federal constitution with the following features:

1.    Westminster style of parliamentary democracy;

2.    A bicameral legislature;

3.    A strong central government;

4.    Safeguards for the position of the Rulers;

5.    Common nationality for the whole of the Federation; and

6.    Safeguards for the special position of the Malays and the legitimate interests of other communities

The Reid Commission held public and private hearings between June and October 1956. At this point, it is important to point out the positions taken and the discussions on the special position of the Malays.

Discussion on the Special Position of the Malays

On 25.09.1956, the Alliance presented a Memorandum to the Reid Commission on the special position of the Malays. The Memorandum stated:

“While we accept that in independent Malaysia, all nationals should be accorded equal rights, privileges and opportunities and there must not be discrimination on grounds of race or creed, we recognize the fact that the Malays are the original sons of the soil and that they have a special position arising from this fact, and also by virtue of the treaties made between the British Government and the various sovereign Malay States. The Constitution should, therefore, provide that the Yang di-Pertuan Besar should have the special responsibility of safeguarding the special position of the Malays. In pursuance of this, the Constitution should give him powers to reserve for Malays a reasonable proportion of lands, posts in the public service, permits to engage in business or trade, where such permits are restricted and controlled by law, Government scholarships and such similar privileges accorded by the Government; but in pursuance of his further responsibility of safeguarding the legitimate interests of the other communities, the Constitution should also provide that any exercise of such powers should not in any way infringe the legitimate interests of the other communities or adversely affect or diminish the rights and opportunities at present enjoyed by them.”

On 27.09.1956, during submissions by the Alliance before the Reid Commission, the following positions were taken by Dato Abdul Razak:

“Chairman: But you would be prepared to leave [State reservations of land for Malays] to the provision that an extension of the privilege is not to be increased substantially because you say at the end, the privilege “should not in any way infringe the legitimate interests of the other communities”. That would mean that you must not have more of these privileges than you have at present, I suppose.

Dato Abdul Razak: We do not want to reduce the legitimate interests of the others. What we have in mind is not to give Malay special rights by taking away the legitimate rights of other people.

Chairman: I think what you mean here—the Malays have certain rights at this moment, and of course every additional privilege is, to some extent, prejudicing the others because it is limiting the amount of land or the number of jobs they could get and so on; and I think what you have in mind was that there should be no substantial increase in the present rights and privileges but that they should gradually be diminished and that it should be the responsibility of the Prime Minister, in Federal matters, to regulate the way in which it should be diminished?

Dato Abdul Razak: In certain cases it should be increased—in business or trade the Malays have very few permits, and they should be given more, but by giving more we should not take away from what the non-Malays now have. That is the idea.”

Further, Tunku Abdul Rahman stated during the submissions:

“Tunku Abdul Rahman: The suggestion is that there should be a review every 15 years.

Chairman: That would not mean, I suppose, that it was wrong to do anything before that?

Tunku Abdul Rahman: No. The present system of doing it is this: for instance there is a condition that there should be three Malays appointed to every one non-Malay, but that particular rule has been relaxed from time to time … the main thing is that we say here under general terms of the special position of the Malays that it should be reviewed every 15 years, but that does not prevent the government of the day from relaxing the rule from time to time.”

Certain points are clearly borne out from the above. The special position of the Malays was never intended to affect or diminish the rights that were then available to the other communities. Further, such privileges were not intended to be permanent.

The Reid Commission Report and the aftermath

The Reid Commission made its recommendations on 21.02.1957 (with a draft Constitution). However, there was dissatisfaction with some of the recommendations.

1.    Citizenship – Malay organisations felt that citizenship by registration or naturalisation should be discretionary. People not born in the country should not have an automatic right to be citizens. The Chinese groups were unhappy that the principle of jus soli for citizenship was not made retrospective. The principle of dual citizenship was criticised.

2.    Malay privileges – The Reid Commission recommended that Malay privileges would continue for 15 years, where after that it would be reviewed, and then either continued, reduced or discontinued. This position was close to that taken by the Alliance as stated above, except insofar that the Reid Commission provided that the quotas could only be reduced and not increased. This proposal created uproar among the Malays. UMNO, through its General Assembly, decided that there should be no time limit for the privileges. Some Chinese groups criticised the concept as it would create two grades of citizenship.

3.    Malay land reservation – The recommendations placed restrictions on the creation of new reservations and made it compulsory that an equivalent amount of land was set aside for non-Malays. UMNO wanted more versatility in creating more Malay reserve lands and also an extension of the same to Penang and Malacca.

4.    Official religion – UMNO was dissatisfied that no official religion was prescribed. The Reid Commission decided that religion should be left as a State matter, as per the Rulers request. UMNO objected to this recommendation.

5.    Role of the Rulers – The Rulers were unhappy that the role of the Conference of Rulers was merely symbolic, particularly on the area of finance.

The Tripartite Working Party

As a result of the dissatisfaction stated above, a tripartite Working Party (the “Working Committee”) was appointed to examine the Reid Commission’s report. The Working Committee comprised of four members of the colonial government (High Commissioner MacGillivray as Chairman, the Chief Secretary Sir David Watherston, the Attorney General T V A Brodie and the Secretary, E O Laird), four representatives of the Malay Rulers (Keeper of the Rulers’ Seal Haji Mustapha Albakri Haji Hassan, Shamsuddin Nain, Tunku Ismail and Neil Lawson, QC), and four representatives of the Alliance (Chief Minister Tunku Abdul Rahman, Dato Abdul Razak, Ong Yoke Lin and V T Sambanthan).

The Working Committee held 23 meetings between 22.02.1957 and 27.04.1957. It is important to note that the Alliance and the Malay Rulers were very much involved in the drafting of the Constitution at this stage. Ultimately, the Working Committee’s report made significant changes to the Reid Commission’s report.

1.    The 15-year limit for Malay privileges was removed. Malay privileges were made an integral part of the Constitution, but clear provisions were added so that the existing rights of the non-Malays will not be extinguished. It is important to note that the Malay Rulers took the position that they preferred to stick with the Reid Commission’s proposal of a 15 year periodic review, as a removal of the same would render the guarantee of equality under Article 8 illusory. Ultimately, the position of the Alliance was adopted.

2.    Islam was prescribed as the religion of the Federation. However, other communities were guaranteed the full freedom to practise their own faiths. This will be discussed further below.

3.    The role of the Conference of Rulers was enhanced.

4.    The permission to use Tamil and Chinese in the legislatures was replaced with the provision that these languages could be used for non-official purposes.

5.    The provision on citizenship by registration was re-worded to confer some discretion on the Government to grant the same.

6.    Persons with double nationality were to be given a period of one year to decide which nationality to choose.

The London Conference

Some issues still remained unresolved after the Working Committee submitted its proposal. The issue on dual citizenship was resolved by an agreement that those holding two citizenships would be able to continue doing so but must choose one or the other within one year. In regards to Malay reserve land for Penang and Malacca, it was proposed that the Governments of these States may set up trusts to buy land for the settlement of Malays.

The Federal Constitution and its founding principles

At the stroke of midnight on 31.08.1957, the Federal Constitution was established upon the declaration of independence. As it stood in 1957, the Federal Constitution provided for, and was founded upon, amongst others, the following core principles:

1.    Supremacy of the Constitution as guaranteed under Article 4 of the same. No body or organ is above the Constitution. As Tun Suffian, Lord President had observed in Ah Tian v Government of Malaysia [1976] 2 MLJ 112, at p. 113:

“The doctrine of the supremacy of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and of state legislatures in Malaysia is limited by the Constitution, and they cannot make any law they please.”

2.    The doctrine of separation of powers was pivotal to provide an effective check and balance system. There was no doubt on the applicability of this doctrine back then. As Suffian, Lord President pithily observed in Merdeka University Berhad v Government of Malaysia [1982] 2 MLJ 243, at p. 252:

“The fact that the Federal and High Courts are excluded from the definition of public authority does not affect the question before us. It is due to the need to maintain judicial independence, and to make clear that these courts are not part of the Executive.”

3.    That although Islam is the official religion, the public sphere of the nation would be secular in nature. The Reid Commission took pains to clarify that:

“This will in no way affected the present position of the Federation as a secular State, and every person will have the right to profess and practise his own religion and the right to propagate such religion, though this last right is subject to any restrictions imposed by State law relating to the propagation of any religious doctrine among persons professing the Muslim religion”

This position was further maintained in the Working Committee’s report. It is important to reiterate here that, the Alliance and the Rulers played a substantial role in the outcome of this report, which clearly states:

“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.”

The Constitution in itself guaranteed that other religions “may be practised in peace and harmony in any part of the Federation”. The fact that Islam is the official religion of the Federation cannot be applied or interpreted in such a way as to deprive the rights of other communities. Article 3(4), a much forgotten sub-article, provides:

“Nothing in this Article derogates from any other provisions of this Constitution”

4.    A guarantee of non-discrimination on grounds of, amongst others, religion, race or descent as provided for under Article 8 of the Constitution. The Malay privileges were eventually codified under Article 153 of the Constitution. However, the same article provided for safeguards against discrimination, where it would not affect any existing holder of any public office or scholarship, etc; and would not allow discrimination on the grounds of race among Federal employees (in promotions, etc.) once they had joined the public service. Further, Article 136 of the Constitution provides:

“All persons of whatever race in the same grade in the service of the Federation shall, subject to the terms and conditions of their employment, be treated impartially”

That Article 153 was not to be applied in such a manner as to deprive the rights of other communities was clarified by the Working Committee, where it stated:

“He (Yang di-Pertuan Agong) will be required to exercise his functions under the Constitution and federal law in such a manner as may be necessary to safeguard the special position of the Malays and to ensure the reservation for Malays of such quotas as he may deem reasonable; and he will be entitled to give general directions to the appropriate authorities for the purpose of ensuring the reservation of these quotas. In the exercise of these functions, the Yang di-Pertuan Agong will be required to safeguard also the legitimate interests of other communities.”

Further, although the 15-year periodic review of the Malay privileges was removed, the Working Committee made it clear that the Yang di-Pertuan Agong should, however, cause a review of the same from time to time.

“The Commission recommended that their proposal for continuing the present preferences should be reviewed after 15 years. This recommendation was given careful consideration but it was not considered necessary to include such a provision in the Constitution. It was considered preferable that, in the interests of the country as a whole, as well as of the Malays themselves, the Yang di-Pertuan Agong should cause a review of the revised proposals to be made from time to time.”

I have singled out the above features of the Federal Constitution as I believe that they are very much now under threat.

The formation of Malaysia

On 27.05.1961, Tunku Abdul Rahman, the then Prime Minister of the Federation, suggested the formation of Malaysia, a Federation comprising of his country, Singapore, Sarawak, Brunei and North Borneo (Sabah). Brunei initially showed interest to join but eventually decided to back out at the closing stages.

In April 1962, a joint British-Malayan commission known as the Cobold Commission was formed and reported that the people of the Borneo States wished to join Malaya. It is pertinent to point that the Report of the Cobold Commission reiterated the position that Malaya was to be effectively a secular state.

“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”

Ultimately, on 16.09.1963, the Federation was transformed into the Federation of Malaysia, consisting of the existing States with the addition of Sabah, Sarawak and Singapore. However, Singapore was expelled from Malaysia in 1965 via the Constitution and the Malaysia (Singapore Amendment) Act 1965.

Conclusion

As can be seen clearly, the founding fathers of this nation had a very clear picture on what this country was supposed to be, and how it is to be developed. Ultimately, the nation was to be built on secular principles, with no elements of discrimination against any race. Assistance was to be provided those in need of assistance, and not solely on the account of race. It is a complete shame on how far we have strayed from the path in which our founding fathers have set us on.

The Hypocrisy behind Tun Dr Mahathir Mohamad

It is really funny how something innately wrong, like corruption, is only seen to be wrong when a particular person says it is wrong. The things that are being complained of have been going on for decades. It is only recently when Tun Dr Mahathir Mohamad (“Tun”) started speaking out that suddenly everyone grew a sense of consciousness and righteousness.

I think it’s important to note from the offset, that I do recognise the contributions made by Tun especially from a financial aspect. Essentially his tenure was one of economic stability over human rights. However, this came at a very big cost. Let me outline how the downfall of this country was ultimately caused by operations that were put into play and/or nurtured during Tun’s tenure as Prime Minister.

Corruption

Corruption and cronyism were widespread during Tun’s tenure. Just to provide a few examples: the 1998 Pahang logging concession, where the Pahang State Legislative Assembly awarded a logging concession for about 10,000 acres of land to UMNO Pahang despite there being a clear conflict of interest; the Bumiputra Malaysia Finance (Bank Bumiputra’s wholly owned Hong Kong subsidiary), where loans amounting to approximately RM2.5 billion were made to George Tan’s Carrian group (Bank Bumiputra was set up to provide bumiputeras with access to funding); the Malaysian Mining Company scandal; the reclamation of 10 islands off Kedah; the Chief Ministers during his tenure were amongst the most corrupted individuals in this country (Khir Toyo and Taib Mahmud as prime examples).

The cronyism culture in UMNO was perfectly summed by Bung Mokhtar in a parliamentary debate, where he proudly said (with applause from UMNO members):

“Terima kasih. Saya rasa Yang Berhormat sudah lama meninggalkan UMNO sebab itu dia tidak tahu apa perkembangan... [Tepuk] Sebetulnya, kita pun Ahli-ahli UMNO, ketua-ketua bahagian pun marah dengan pucuk pimpinan sebab kita minta projek tidak dapat. Semua open tender.”

Corruption and cronyism were nurtured during Tun’s tenure to the extent that it formed part of the system. Even if the 1MDB mess is cleaned up, or if Najib is replaced, the actual problem will still be present. The root of the problem is the system, which was built up for decades and has now become a “norm”.

Judiciary

During the 1980’s and the period before that, the Malaysian judiciary was one that was highly respected globally for its independence and competence. Of course, this flies at the face on the concept of dictatorship. The judicial activism displayed by the courts in providing an effective check and balance system didn’t bode well with Tun. He began a rancorous campaign against the judiciary, which ultimately resulted in the removal of the Lord President and two other Supreme Court justices for upholding the rule of law. Article 121(1) of the Constitution was amended, and numerous legislations were amended to include ouster clauses to remove the courts inherent power of reviewing executive decisions. These vicious attacks led to the downfall of the independence and competence of the judiciary. The judiciary hasn’t recovered ever since.

Islamization

During Tun’s tenure, UMNO began an islamisation policy to implement its version of Islam to counter the PAS version of Islam which was labelled as extremist and fanatical. Certain sects were declared deviationists, and Islamic institutions, such as banks, universities and research institutions were launched. This worked well for Tun both locally and internationally. This sparked the debate between UMNO and PAS as to whose version of Islam was correct, which ultimately provided the platform to use religion as a political tool. UMNO’s ultimate objective, which focused on upholding Malay rights, had an added dimension of upholding Islam. Before Tun’s time, there was really no issue of Malaysia being anything but a secular country. In 2001, Tun declared that Malaysia was an Islamic state. This led to similar assertions by various UMNO ministers. This eventually bred and nurtured the religious extremism we see today, which threatens the very fabric that holds our society together and the fundamental principles underlying our Constitution.

Conclusion

I am not saying what is being right now by Tun is incorrect, or should not be done. However, the public should never forget what was done, which eventually led to what is being complained of. As much as many might not want to accept this, Tun planted the seeds and nurtured the plants in the very field he is trying to burn down now.

Does the Speaker of Parliament need to send his resignation letter to the PM?

Introduction

Our dear Speaker of Parliament, Tan Sri Pandikar Amin Mulia (“Pandikar”) decided to resign as Speaker of Parliament. He wrote a resignation letter and went to pass it to the Prime Minister (“PM”). The PM refused to accept it, convinced Pandikar to stay on, and kapish! Pandikar decides to retract his resignation! So let’s take a step back, is there really a need to send a letter to the PM?

Resigning as Speaker of Parliament

The resignation of the Speaker is provided for under Article 57(2), which states, “the Speaker may at any time resign his office by writing under his hand addressed to the Clerk of the House of Representatives, and shall vacate his office…” Alright, for starters, the letter must be addressed to the Clerk of the House of Representative, and not the PM. In fact, nowhere does it mention that he needs to communicate it to the PM.

Next, what does the word “addressed” entail? Must the letter have been received? Is it sufficient if the letter was written and dispatched? Must there be an acceptance on part of the clerk? There is no proper precedent here on how the word “addressed” is to be applied. It is useful to look to India, which is the primary source of reference for the development of Constitutional law in Malaysia.

Examples in India

India has a similar provision under Article 94 of its Constitution, the difference being that the letter must be addressed to the Deputy Speaker, for the resignation of the Speaker, and the reverse for the Deputy Speaker. There are two occasions in which the term “addressed” was applied.

On 7^th March 1956, M.A. Ayyangar resigned as Deputy Speaker of the Lok Sabha (lower house of Indian Parliament). The position of Speaker at that time was vacant. For his resignation to be complete, it was sufficient for him to have addressed the letter to the Speaker and to have sent it to the Office of the Speaker. There was no need for an acceptance.

A better example was the intended resignation of G. Laskhmanan as Deputy Speaker of the Lok Sabha. He sent his letter on 25^th June 1983 to the Speaker. The Speaker’s office only received it on 29^th June 1983. However, on 27^th June 1983, he sent another letter retracting his resignation. The matter was referred to the legal department for a legal opinion on the legality of his retraction. Ultimately, it was concluded that the world “addressed” entails that it would be insufficient if the letter is put in the course of transmission. It is only complete when the Speaker receives the resignation letter, which in this case was date of receipt on the registered post, i.e. 29^th June. Therefore G. Lakshmanan’s resignation was inchoate and his retraction was valid.

Ultimately, all that is needed is for the letter to have been received. There is no need for a form of acceptance, or in other words, there is no room for a rejection.

Conclusion

Pandikar seemed to have adopted this position as well when he was reported as having said, “There is no need for others to announce that the Speaker has resigned. If the prime minister won't accept my resignation, I myself can announce it”.

Therefore, there is really no need for any form of notification to the PM. Perhaps it is done as a matter of convention or tradition. All that is needed is a resignation letter addressed to the Clerk and sent to him. If at all Pandikar wishes to resign again, there is nothing the PM can do to stop him.

Protection of Refugees and Asylum Seekers in Malaysia

Introduction

South-East Asia is currently facing an insidious humanitarian crisis with the sudden influx of asylum seekers. The crisis appears to have been triggered by a regional crackdown on human traffickers, which resulted in these traffickers abandoning ships leaving thousands of migrants to fend for themselves. In the last few days, approximately 1200 Rohingya and Bangladeshi migrants have landed at Langkawi Island. The question is, what protection is Malaysia, as a non-signatory of the 1951 Refugee Convention, obliged to provide to these people?

“Refugees” and “Asylum Seekers”

Now, for clarification, the term refugee refers only to persons fleeing a country owing to a well-founded fear of being persecuted on grounds of race, religion, nationality, political opinion or membership in a particular social group. Asylum seekers on the other hand are people who claim to be refugees, but whose claim has not yet been definitively evaluated or fall short of one of the five grounds listed above.

Protection under the 1951 Refugee Convention

The rights and protection accorded under the 1951 Convention are only available to refugees. This includes a wide array of protections, such as, amongst others, right to property, associations and trade unions, wage-earning employment, self-employment, rationing, housing, public relief, public education, labor legislation and social security. Most of these rights are available to the extent that it is available to citizens.

Minimal protection

States which are not parties to the 1951 Convention, like Malaysia, are not obliged to provide the abovementioned rights. However, they must still provide basic minimal protection to both refugees and asylum seekers. The customary law framework is termed as “temporary protection”, and is most often applied to situations where there is a mass influx of migrants. Regardless of the length of the protection, a State must at the very least, provide the migrants with the right to life, right to not be subjected to torture or to cruel, inhuman or degrading treatment, right to liberty and security of person (shall not be subjected to arbitrary arrest and detention), and any person         deprived of their liberty shall be treated with humanity and with respect to the inherent dignity of the human person. If the State is able to provide more protections within its resources, it should do so (i.e. education, employment). However, the rights listed above are a must regardless of the State’s means. This is an established international legal norm (recognized by UNHCR and practiced in the United States, Europe, Southeast Asia and Africa)

Application in Malaysia

There has been widespread criticism on Malaysia’s treatment of refugees, and justifiably so. Some of these criticisms are directed to the fact that Malaysia refuses to be a signatory to the 1951 Convention. The fact is Malaysia does not have the resources to provide the rights under the 1951 Convention to the large number of refugees here. This would certainly expose Malaysia to multiple breaches of the 1951 Convention. However, this does not mean that it can simply ignore these migrants, which ultimately, were allowed to enter the country due to mismanagement and negligence on part of the officials. Malaysia must provide minimal protection standards to these refugees and asylum seekers as stated above.

Conclusion

The fact is the alarming number of migrants in our country is causing numerous problems, both to the migrants themselves and to our citizens. Ignoring them is only going to make the situation worse. Malaysia need not be a signatory to the 1951 Convention to assist them. It is already obligated to do so for one simple reason, humanity. With a proper system in place, assistance can be provided to these migrants, which in turn would provide benefits for the country as well. There is a simply a lack of political will on part of the government.

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.