130 lawyers requisition for a General Meeting of the Bar
At about 12-30pm today(31/7/2006), 130 members of the Bar exercised their rights pursuant to section 65(2) Legal Profession Act 1976 to requisition for a General Meeting of the Malaysian Bar. Coming less than 2 working days after the call went out for lawyers to requisition for a General Meeting with the object of removing certain provisions found in the Legal Profession (Amendment) Bill 2006. The fact that 130 lawyers from Johore, Penang, Kuala Lumpur and Selangor have bravely placed their name to the requisition notice, whilst noting that only 50 are required by law, makes this an important enough matter that warrants the calling together of lawyers to deliberate on the stated objects of the requisition notice.
The concern of the requisitionists, and many other lawyers who would have, but may not have had the opportunity to place their signatures in time on the required written notice, stresses the importance of the matters contained in this requisition that reads:-
“We, the undersigned members of the Malaysian Bar hereby requisition a General Meeting of the Malaysian Bar with the object of: -
a) Calling for the immediate removal of and withdrawal from consideration of those provisions of the Legal Profession (Amendment) Bill 2006, which is presently before the Dewan Negara, which in relation to advocates and solicitors’ disciplinary proceedings oust judicial review, limits the right of appeal, curtails the advocates and solicitors’ right to be heard, imposes secrecy the proceedings of the Disciplinary Board and Committee, enables the Board to make restitution orders against the advocate and solicitor, and breaches the advocates and solicitors right against self–incrimination. The said provisions are those between clauses 18 and 33 of the Bill.
b) Calling upon the Bar Council to oppose vigorously and without compromise all legislations which in any way prejudice the principles of natural justice and fairness”
It must be stated that a requisitioned General Meeting of the Bar was furthest from the minds of many of these requisitionist, and it could have been avoided if and only if the Bar Council had conceded that there were some serious issues that have been raised by lawyers that required a serious re-consideration of the present stance taken by Bar Council when they threw their full support behind this Legal Profession (Amendment) Bill 2006.
It must be highlighted that the concerns of the requisitionists are not with regard the earlier part of the Bill which caused to be deleted section 46A(1)(a) and sought to replace the now existing onerous quorum requirements with a more reasonable and fair quorum requirement.
What was the biggest concern about this Legal Profession (Amendment) Bill 2006 was that it sought to specifically exclude judicial review through clause 33 whereby the new section 103E(2) reads “There shall be “There shall be no judicial review against any decision or order made by the Disciplinary Board.”
The next big concern is the limitation of the right of appeal to certain specified subsections and sections. The absence of wordings that would enable courts to allow for appeal against other orders and decisions generally would in fact tie the hands of the court and may lead to injustice. We must always acknowledge that we do not really know what may come up in the future, and that in all fairness right of appeal must never be limited. The current provisions so specific in its limitation may in all likelihood suppress the courts’ inherent jurisdiction to hear appeals which should be appealable in the interest of justice.
Even Yeoh Yang Poh, our President, in his article “Concerns About DB Amendments”, acknowledges one matter that should have been appealable that have inadvertently been left out. In his article, published in the Malaysian Bar website, he writes. “One subsection may have been inadvertently left out, namely S.100(1)(a) under which DB may make a final decision that there is no merits even on the face of the complaint itself and thus dismiss the complaint. It is not expressly provided in S.103E that the complainant can appeal from such a final decision. This omission in fact favours the lawyer. In the public interest, it should be included.”
The present section 103E(1) states “Any party aggrieved by any decision or order made by a Disciplinary Board shall have the right of appeal to the High Court within one month of notification of the decision or order complained against”. Personally, I find that this provision is correct and there is no need whatsoever to limit the right of appeal, let alone to go further and specifically oust judicial review.
The next serious concern is with regard the proposed amendment to section 76(2) of the LPA. Secrecy now may be extended to all proceedings Board (the Qualifying Board), the Disciplinary Board and the Disciplinary Committee. What is worse is the proposed new sub-section (3), which states that “No member of the Board, the Bar Council, the State Bar Committee, the Disciplinary Committee and their staff who are involved in any proceedings or matters conducted by them shall be compelled to disclose to any court any information relating to such proceedings or matters.”
It may be argued that secrecy is important for debates that go on within the Bar Council, State Bar Committees and/or committees or sub-committees of these bodies but not with regards the other bodies. We must not forget the not too long ago CLP issue.
We must also not forget that in the interest of justice there must be full disclosure when it comes to anything connected to Disciplinary proceedings, which is quasi-criminal in nature. It stinks more so, when Bar Council Criminal Law Committee in a recent New Sunday Times (30/7/2006) article “Changes could lead to shorter, fewer trials” (which was also posted on our Bar website) is reported to have said that right to full pre-trial disclosure would very well soon become a reality in Malaysia. Full disclosure is a fundamental right, and this proposed amendment to our own LPA is goes against the very essence of full disclosure. The wordings, as it is now in the Bill, is so broad and is open and may justify a very narrow interpretation by the courts and this may cause great injustice to the lawyer complaint against and also the complainant.
We are the Malaysian Bar, and no amount of justifications, rationalizing and even current understanding of the ambit and scope of some of these provisions is sufficient. What we need is very clear words in the proposed amendments of the LPA that is clear enough to prevent any other interpretation that goes against the very intent of the draftsmen.
We all know that even the expressed intention for the ISA as recorded in the Parliamentary Hansard has not prevented the executive from utilizing this draconian act against other persons and for other reasons, which were never intended by the original; proponents of the ISA. Thus, unless the words in the Act itself are very clear, it is dangerous and may lead to potential injustice.
The object of the requisition is clear. It is not meant in any way to sanction the Bar Council or the draftsmen of the Bill. It highlights very serious concerns about some of the very ‘dangerous’ provisions contained therein which requires the Bar as a whole to consider, and determine what our stance are.
There is also great concern about how this Bill was drafted, and how members of the Bar were never consulted. It seems that even members of the Bar Council were not fully consulted. Haji Sulaiman, in his article “Why I Support the LPA Amendments” says that this was because the Bar Council was not allowed to consult. He says that the AG and the Cabinet insisted on confidentiality.
We may have been desperate to get the provisions about the quorum requirements through as fast as possible, but this cannot justify not consulting with members of the Bar more so since this was the Legal Profession Act, the Act that governs lawyers.
We must not forget that we have a Resolution on Transparency and Accountability. We must not forget that our objections against the secrecy position is also the reason why we now at least have highlights of the Bar Council meetings made available to all lawyers. And now, are we not taking a step back just because the AG and the Cabinet asked us to do so, or just because we are so desperate the get a more reasonable quorum requirement enacted soonest?
Legal Profession (Amendment) Bill 2006 is a concern for all lawyers, irrespective of whether we have been found guilty of misconduct previously, facing disciplinary action now or possibly going to face disciplinary proceedings tomorrow or never will face disciplinary proceedings at all. As lawyers, concerned with upholding the cause of justice without fear or favour, irrespective of whether we may fall victim to an Act of not, we must always do the right thing. If and when we do find something, we verily believe is wrong, is an injustice and/or is a violation of human rights, we must act immediately. Motives, interests and ‘hidden agendas’ of persons who highlight issues must and should never be raised to distract us from the real issue before us – the Legal Profession (Amendment) Bill 2006.
The Bar Council has a right to be heard, and that is why all of us who are able to make it to the Forum on Saturday must make every effort to attend with an open mind. The calling of the Forum was a positive move and it should have been done much earlier as soon as members started raising concerns about the Bill.
A Forum, however, is not a General Meeting of the Bar, and it may not be sufficient to compel the Bar Council to change their publicly expressed position of support of the existing Bill. We would need a General Meeting, which I hope that the Bar Council will put in every effort to ensure that it is called as though it is General Meeting being called for by the Bar Council itself. A half-hearted going through the motions of calling for a General Meeting by the Bar Council will more likely than not fail to achieve the required quorum. Let not personal feelings or personalities get in the way of us getting each and every lawyer together to discuss this very important issue that affects not just lawyers but also the public at large.
Charles Hector
31 July 2006
Monday, July 31, 2006
1,500 illegals nabbed (Star)
Monday July 31, 2006
1,500 illegals nabbed
SEPANG: Selangor Rela yesterday nabbed more than 1,500 illegal immigrants working at a factory here in their largest Ops Tegas swoop this year.
The 3am operation, involving 1,250 Rela members from Selangor and Negri Sembilan, was led by director Khairy Mohd Alwee and took place at the workers' hostel.
 |
| IN THE NET: Some of the 1,500 illegal immigrants waiting at the Sepang District Council compound to have their particulars checked during Ops Tegas yesterday. |
“We are compiling their particulars. Most of them do not have proper travel documents. After this, we will send them to immigration depots all over the country because the ones in Selangor are already overcrowded with illegal immigrants.”
Ops Tegas was launched more than a year ago to flush out illegal immigrants, then estimated to be some 800,000 people.
With the large number of illegals, the government amended the Emergency (Essential Powers) Act 1964 Essential Rules (Amended) in February last year, authorising Rela officers to search, without a warrant, houses or premises believed to be the hideouts of illegal immigrants.
Khairy estimated that some 138,000 illegals were still in Selangor, adding that the state Rela would intensify its operations.
“Our problem is that not many people are aware that Rela now has the power to detain illegals. Investigation and prosecution would still done by the Immigration Department,” he said.
“We have shown that through our own operations in the last one year, we have been successful in nabbing quite a number of illegals.”
Khairy said those who have information on illegal immigrants in their area could contact 03-88886308.
Saturday, July 22, 2006
Malaysia's 'inexcusable' position on death penalty
Malaysia's 'inexcusable' position on death penalty
Leading human rights activists and a newspaper columnist have rejected the Malaysian Government's claim that the death penalty was needed to deter serious crime and safeguard public interest.
Deputy Minister in the Prime Minister's Department Datuk M. Kayveas told Parliament on 28 June that: "The Government has no intention of abolishing the death penalty."
The Deputy Minister said the death penalty was "only provided for serious crimes" such as murder and drug trafficking, and there were "enough safeguards" in the judicial system to ensure it was not handed out easily.
N. Surendran and Charles Hector, from the group Malaysians Against Death Penalty and Torture (MADPET), said they were "disappointed" by the Deputy Minister's "unsubstantiated and false statement".
They said in a media release posted on the website of the Malaysia Bar that the statement was "baseless and cannot be justified by any facts or statistical proof", citing studies that have "failed to find convincing evidence that capital punishment is a more effective deterrent of crime than long-term imprisonment".
"The Malaysian government ought to have conducted a thorough study on the effectiveness or ineffectiveness of the death penalty as a deterent to serious crime before having a Deputy Minister, who is a lawyer, stand up in Paliament and attempt to turn a myth into an empirical truth," they said.
Umran Kadir, a columnist with publication Sun 2 Surf, described the Deputy Minister's stance as "an inexcusable position to take when international studies overwhelmingly support the notion that the death penalty is not an effective deterrent to crime".
He said "the ugly truth is that in dispensing justice mistakes can and do happen".
"Civilisation has moved far beyond the time of Hammurabi when "an eye for an eye" was the basis of all laws. The death penalty creates a senseless and vicious cycle of violence. I firmly believe that we are in no position to take away that which God has bequeathed upon each of us," Umran Kadir wrote.
What safeguards?
MADPET also rejected the Deputy Minister's statement that there were adequate safeguards in the judicial system, and described as "laughable" the claim that the country's experienced police provided an additional safeguard against a miscarriage of justice.
"What safeguards is the Honourable Deputy Minister speaking of? In Malaysia there is no immediate access to a lawyer upon arrest, immediate right to a phone call and no right to full pre-trial disclosure [of all evidence to the accused]," they said.
"It must be reiterated that even in jurisdictions where all these safeguards exist, the number of persons wrongfully condemned to death have been frighteningly high. Human justice is dangerously fallible, and the only acceptable choice for any civilized nation is to abolish the death penalty.
"The fact that a person has the right to appeal to the Court of Appeal and then the Federal Court, and thereafter to the Pardons Board for clemency is grossly insufficient to justify the keeping of the Death Penalty in our law books.
"It is laughable that the Deputy Minister even suggested, at this day and time in Malaysia, that thorough investigations carried out by an experienced and effective police force is yet another safeguard to prevent miscarriage of justice," the MADPET statement said.
World turning away
Umran Kadir and MADPET both noted the worldwide trend of countries rejecting the death penalty and referred to the Philippines, which abolished the death penalty last month.
Umran Kadir wrote that: "Malaysia is among a shrinking group of 71 countries that continue to cling on to an unmerciful and irreversible punishment."
"It is high time we let compassion guide us on this issue."
In a footnote to his newspaper column, Umran Kadir noted "with sadness" that from 1970 to the present, 359 people had been condemned to death byMalaysian courts while 159 were currently on death row.
MADPET called for an immediate moratorium on all executions and the complete abolition of the death penalty in Malaysia.
The Deputy Minister tabled a written statement in Malaysia's Dewan Rakyat in response to a question from parliamentarian Karpal Singh.
Leading human rights activists and a newspaper columnist have rejected the Malaysian Government's claim that the death penalty was needed to deter serious crime and safeguard public interest.
Deputy Minister in the Prime Minister's Department Datuk M. Kayveas told Parliament on 28 June that: "The Government has no intention of abolishing the death penalty."
The Deputy Minister said the death penalty was "only provided for serious crimes" such as murder and drug trafficking, and there were "enough safeguards" in the judicial system to ensure it was not handed out easily.
N. Surendran and Charles Hector, from the group Malaysians Against Death Penalty and Torture (MADPET), said they were "disappointed" by the Deputy Minister's "unsubstantiated and false statement".
They said in a media release posted on the website of the Malaysia Bar that the statement was "baseless and cannot be justified by any facts or statistical proof", citing studies that have "failed to find convincing evidence that capital punishment is a more effective deterrent of crime than long-term imprisonment".
"The Malaysian government ought to have conducted a thorough study on the effectiveness or ineffectiveness of the death penalty as a deterent to serious crime before having a Deputy Minister, who is a lawyer, stand up in Paliament and attempt to turn a myth into an empirical truth," they said.
Umran Kadir, a columnist with publication Sun 2 Surf, described the Deputy Minister's stance as "an inexcusable position to take when international studies overwhelmingly support the notion that the death penalty is not an effective deterrent to crime".
He said "the ugly truth is that in dispensing justice mistakes can and do happen".
"Civilisation has moved far beyond the time of Hammurabi when "an eye for an eye" was the basis of all laws. The death penalty creates a senseless and vicious cycle of violence. I firmly believe that we are in no position to take away that which God has bequeathed upon each of us," Umran Kadir wrote.
What safeguards?
MADPET also rejected the Deputy Minister's statement that there were adequate safeguards in the judicial system, and described as "laughable" the claim that the country's experienced police provided an additional safeguard against a miscarriage of justice.
"What safeguards is the Honourable Deputy Minister speaking of? In Malaysia there is no immediate access to a lawyer upon arrest, immediate right to a phone call and no right to full pre-trial disclosure [of all evidence to the accused]," they said.
"It must be reiterated that even in jurisdictions where all these safeguards exist, the number of persons wrongfully condemned to death have been frighteningly high. Human justice is dangerously fallible, and the only acceptable choice for any civilized nation is to abolish the death penalty.
"The fact that a person has the right to appeal to the Court of Appeal and then the Federal Court, and thereafter to the Pardons Board for clemency is grossly insufficient to justify the keeping of the Death Penalty in our law books.
"It is laughable that the Deputy Minister even suggested, at this day and time in Malaysia, that thorough investigations carried out by an experienced and effective police force is yet another safeguard to prevent miscarriage of justice," the MADPET statement said.
World turning away
Umran Kadir and MADPET both noted the worldwide trend of countries rejecting the death penalty and referred to the Philippines, which abolished the death penalty last month.
Umran Kadir wrote that: "Malaysia is among a shrinking group of 71 countries that continue to cling on to an unmerciful and irreversible punishment."
"It is high time we let compassion guide us on this issue."
In a footnote to his newspaper column, Umran Kadir noted "with sadness" that from 1970 to the present, 359 people had been condemned to death byMalaysian courts while 159 were currently on death row.
MADPET called for an immediate moratorium on all executions and the complete abolition of the death penalty in Malaysia.
The Deputy Minister tabled a written statement in Malaysia's Dewan Rakyat in response to a question from parliamentarian Karpal Singh.
Monday, July 17, 2006
SERBAN CASE: A BLOW TO FREEDOM OF RELIGION AND CHILD RIGHTS?
SERBAN CASE: A BLOW TO FREEDOM OFRELIGION AND CHILD RIGHTS?
The recent Federal Court decision on what has come to be commonly be known as the “Serban Case” has in fact watered down freedom of religion in Malaysia, in particular the right to practice and profess one’s religion, and also the rights of the child.
Three human persons, sitting as judges of the Federal Court, made a decision on what they believed was what God required of its followers, in this case the religion of Islam.
When it comes to religion or to what God wants of us, I believe, it is ultimately a matter between the individual believer and his/her God. It is ultimately up to the omnipotent and omniscience God to judge as to what was right or wrong, what was mandatory and what is not.
I do not believe that God will accept reasons like “this is what the Malaysian government, or the Education Ministry or the courts decided as so as a citizen I did or did not do with regard the practice of my religion’ as a justification for a believer’s failings to do what God required of him/her.
Remember that even in the Nuremberg trials, the court did not accept the following of the orders of the then leader of the nation state or the orders of one’s immediate superiors as a justification or a defence for wrongful deeds down by the individual. Surely, God on judgment day, will also most likely not accept such reasoning.
I believe that ultimately one should leave it to the follower/believer of a religion to decide for himself as to what are his duties, obligations and responsibilities when it comes to God. No State, executive, administrative authority or court of law should generally interfere in one’s freedom to profess and practice one’s religion.
The only time that the community of people, the State or a court of law can justifiably interfere with how one practice and professes his religion or faith is when that practice interferes with the rights of other persons in the community or other peoples of different beliefs or is against the common good of the community of peoples.
The Serban Case
This case was about three children attending a government school wearing ‘serbans’(a Muslim headgear), who refused to stop using the serban despite being asked to do so on the basis that Regulation 3(i)(i) of their School Regulations 1997 prohibited pupils from wearing “jubah, turban (serban), topi, ketayap dan purdah”.
This “School Regulations 1977” was the Peraturan Sekolah Kebangsaan Serting (FELDA) 1997, meaning it was a regulation of just that particular school made apparently pursuant to a Circular of the Ministry of Education (Surat Pekeliling Ikhtisas Bil. 9/1975). One wonders whether that regulation would also mean that a Sikh student will also be prohibited from wearing a turban.
The children’s parent (and presumably the 3 children also) were of the belief that their religion and their God requires of them to wear that particular headgear. From the facts, it seems clear that this was indeed a rather strong belief so much so they refused to cease wearing the serban even on the threat of expulsion from school. They were finally expelled from this government school.
I cannot see how the wearing of a headgear, be it a turban or a serban or a ketayap, would in any way infringe of violate the rights of any other student or the community in the school. I cannot see how a serban would in any way affect the education of these 3 students, or the education of the other students. These 3 students may not probably be able to join certain uniformed bodies, or maybe even take part in certain sporting activities which require a naked head but other than that it would, in all probability, not in any way affect their education and/or their development.
It also seems that this “school regulation” and the said Ministry’s Circular came into being after these students were already in school for several years.
Therefore, logically and reasonably, I do not see why a student is not allowed to wear this headgear or any other headgear which they believe their religion (or even their cultural practices) requires of them.
Reading the Federal Court judgment, it was humourous that the authorities suggested that the children remove the serban and wear another headgear, the songkok. Therefore, it was alright for a student to wear a “songkok” but not a “serban”. One immediately wonders, whether there was some political motive or agenda behind this particular “school regulation”, noting that it is common knowledge that the serban was the more favoured headgear of those who supported PAS, the main Islamic opposition party, whilst the songkok was the preferred headgear for those in UMNO, the leading party in the Barisan Nasional, the ruling government of the day.
It is my strong opinion that any student should be allowed to wear any headgear, earring, necklace or markings on their head by reason of their religious belief provided that it does not interfere with his and his schoolmates’ education, and is not something that is not disrespectful of or an affront to another person’s religion or belief. This is the freedom of religion that our Federal Constitution is talking about. It must also be noted that even when it comes to standard uniforms in school, there are many jurisdictions that do not even have this requirement.
Hence, I would say, without even going into trying to interpret what is required of a good Muslim or applying “the integral part of the religion” test, that this “school regulation” was definitely a violation of the constitutionally guaranteed freedom of religion.
Let us not delude ourselves by ignoring the fact that there is so many different beliefs, viewpoints and thinking as to what is required by a religion with regard to practice or even what constitutes the “integral part of the religion”. In Malaysia, being a multi-religious community, we know and see that there are so many different schools, ‘mazhabs’, churches, inclinations and beliefs not only in Islam but also Christianity, Buddhism and Hinduism. It is dangerous when our Federal Court attempts to do for Islam what Constantine did for the Christians in Nicea when they tried and listed out what constitute the integral beliefs of Christianity, which ultimately resulted in the Nicene Creed. When it comes to religion, safely we can only conclude on what are the core values – being mercy, compassion, justice, caring, human rights and peace – but it is near impossible to conclude on what are the integral practices, creed, cult or code of the believers of a religion or a faith.
Blind Acceptance of Government Propaganda is Dangerous
In their judgment, the Federal Court did also go on to say that ““Justice is blind”. Yes. But not judges. They should not be”. But sadly, a perusal of some of the comments made in their judgment indicates not just a bit of ignorance but a bias on the part of these judges with regard to how they perceived some aspects of the Malaysian reality.
For example, their comments about one of the missionary group(I believe that reference was about the Arqam), which the Malaysian government ultimately cracked down on using laws like the Internal Security Act (ISA).
“Then came 1970’s and the appearance of “dakwah” (missionary) groups. They distinguished themselves by their dress, the men and their male children wore “jubah” and “serban”. One such organization had been declared unlawful. We saw their top leaders confessing, crying and repenting over television”
I believe that this statement about “top leaders confessing, crying and repenting over television” is made forgetting that these ‘top leaders’ were arrested under the Internal Security Act (ISA) where over the years there has been evidence of torture that is inflicted on many victims of this draconian detention without trial law. Hence, the fact that these “top leaders” came out “confessing, crying and repenting over television” means nothing more than an indicator of how efficient the Malaysian police has become in breaking down people.
Then, there is the apparent acceptance by the Federal Court judges of the government’s propaganda that “national service” was introduced to curb the “growing” racial and religious polarization amongst students is also disturbing. Was not ‘national service’ introduced as a means of curbing the growing number of youths that were becoming more and more critical of the present government, especially after 1998? Was it not an attempt to try to win back the declining support of the youth to the Barisan Nasional government? In Singapore, their national service had been apparently rather effective in creating an uncritical, subservient and pro-PAP Singaporean – Is that also not the Malaysian government’s real agenda? But, when the Federal Court judges made a statement that was an acceptance of the government’s reasons, the impartiality of the judges became questionable.
Racial and religious polarization has always existed in Malaysia, in the universities in particular from the mid-70s. For me, one of the reasons for the continuation of this polarization is the continued existence of race-based and religious-based political parties in Malaysia. To justify their continued political survival, these race and religious based parties will continue to propagate racial and religious sentiments and cultivate polarization. Malaysians want to see the end of polarization in Malaysia hopes that soon the emphasis will be on race and religion will end – and stress will only be on the fact that we are Malaysians, just Malaysians – not Malays, Chinese, Indians, Bumiputras, non-Bumiputras, Muslim, Christian, Hindus or any other race/ethnic/religious criteria.
The Best Interest of the Child SHOULD Be of Primary Consideration
Three boys – three children wanting to wear serban because of their religious belief, or some others wanting to dress differently because of their religion cannot be said to be the cause of racial-religious polarization, or something that will propagate polarization.
The individuality of the human person should always be accepted and promoted. What we should be against is the attempt of the State to make all persons into uniformed beings, not just with regard to socio-economic and political thought but also the way in which we are to profess and practice our religion. This trend is dangerous and will not be for the future good of Malaysia.
These three children were expelled from school, deprived of their right to education in a national school all because of some “school regulation” about wearing of a serban, which they wore because of their religious belief. Of course, for most persons, God’s will supersede man-made laws – and so, I will say that it was not so much the parent that is to be blamed but that school, the Education Ministry and the government. The executive and also the courts seem to have forgotten that Malaysia has ratified the United Nations Convention on the Rights of the Child (CRC) in 1995, and Article 3(1) very clearly states :-
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.“
Was the best interest of Meor Atiqulrahman Bin Ishak,
Syed Abdullah Khaliq Aslamy Bin Syed Ahmad Johari, And Syed Ahmad Syakur Dihya Bin Syed Ahmad Johari the primary consideration of the school, the Education Ministry, the Government of Malaysia and the Courts of Law?
In their judgment, the Federal Court also went on to criticize the father of these children for what happened, whilst generally stating what children should be doing - that is, “attending school, study and play with other students, obey the school discipline, respect their teachers” and then comparing as to what the children ended up doing, that is “being different from other students, disregard the school regulations, disobey the teachers, rebel against the authorities”. Let us not be too simplistic here for disobedience, rebellion, criticism, rebellion and protest also important virtues that serve to check wrongdoings, bad laws, abuse of powers, injustices and violations of human rights. Teaching a student to be a unthinking conformist and an obedient follower is not for the good of the child. The father of these children did teach his children the importance of standing firm for your beliefs, and not just accepting quietly something that they believe is wrong. It may be argued that this parent may have thought his children something far more important that had he just conceded to that “school regulation” and asked his children to remove their ‘serban’.
At the end of the day, we have to ask ourselves whether the Federal Court had acted justly – based on principles of justice and had not just made a judgment because they did not want to “rebel against” or “disobey” the authorities and the government of the day. Let us also note that judges, many a time, decide on the basis of the points and arguments before them – and that decision may have been different if they did consider some of the points raised here, especially the point that today in Malaysia, the best interests of the child should have been the primary consideration more so since Malaysia has ratified the Child Rights Convention in 1995.
The Federal Court Judgment: Maybe Not All That Bad BUT…
For Malaysia, the Federal Court judgment in the “Serban Case” is good as it seemingly reaffirms the fact that Malaysia, being a multi-racial, multi-cultural, multi-lingual and multi-religious nation state, is a ‘secular’ state not an “Islamic state” but then the question remain as to whether justice was done for these 3 children who were expelled because they did not want to remove their ‘serban’, a headgear worn by them because they believed their religion required them to do so.
We must also ask ourselves again whether it is not a violation of the constitutionally guaranteed freedom of religion for a school, Ministry or government to come out with such regulations or rulings that will prevent the wearing of certain headgears, markings or other articles that a particular religion requires of its followers to wear.
Charles Hector
16th July 2006
Saturday, July 15, 2006
Case: Full Judgment delivered by Datuk Abdul Hamid Mohamad FCJ
The Serban Case: Full Judgment delivered by Datuk Abdul Hamid Mohamad FCJ
Thursday, 13 July 2006, 14:21
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
(BIDANG KUASA RAYUAN)
PERMOHONAN SIVIL NO. 01-3-2005(N)
ANTARA
1. MEOR ATIQULRAHMAN BIN ISHAK, seorang budak, melalui Penjaga ad litem, Syed Ahmad Johari bin Syed Mohd.
2. SYED ABDULLAH KHALIQ ASLAMY BIN SYED AHMAD JOHARI, seorang budak, melalui bapanya, Syed Ahmad Johari bin Syed Mohd
3. SYED AHMAD SYAKUR DIHYA BIN SYED AHMAD JOHARI , seorang budak, melalui bapanya, Syed Ahmad Johari bin Syed Mohd
… Perayu-Perayu
DAN
1. FATIMAH BINTI SIHI
2. KETUA SETIAUSAHA,KEMENTERIAN PENDIDIKAN MALAYSIA
3. KERAJAAN MALAYSIA
… Responden-Responden
KORAM:
ABDUL MALEK AHMAD, PCA
STEVE SHIM LIP KIONG CJ (SABAH & SARAWAK)
ABDUL HAMID MOHAMAD FCJ
JUDGMENT
ABDUL HAMID MOHAMAD FCJ (delivering the judgment of the Court): Syed Ahmad Johari bin Syed Mohd (“Syed Ahmad”) is the father of the 2nd and 3rd Appellants and the guardian of the 1st Appellant. He and his family live in a FELDA Scheme in Serting, Bahau, Negeri Sembilan. He himself is a teacher at Sekolah Menengah FELDA Lui Barat in the same area. The three Appellants were students at Sekolah Kebangsaan Serting Hilir (FELDA), Bandar Baru Serting, Negeri Sembilan. At the material time, the 1st, 2nd, and 3rd Appellants were in Standard 5, 3 and 2 respectively and about 11, 9 and 8 years old respectively.
The school had issued the Peraturan Sekolah Kebangsaan Serting (FELDA) 1997 (“The School Regulations 1997”), made pursuant to Surat Pekeliling Ikhtisas Bil. 9/1975 issued by the Ministry of Education.
Regulation 3 of the School Regulations 1997 stipulates, inter alia, that the uniform for male pupils comprises of blue black long pants, white short-sleeved shirt, white rubber shoes and socks. Regulation 3(f)(v) provides that black or blue black songkok is allowed to be worn. However, in regulation 3(i)(i), all pupils are prohibited from wearing “jubah, turban (serban), topi, ketayap dan purdah”.
The Appellants wore turban as part of the school uniform to school. They were advised not to do so and to comply with the School Regulations 1997. When they refused, the 1st Respondent requested Syed Ahmad to see her. At a meeting on 3 April 1997, the 1st Respondent requested Syed Ahmad to cooperate to ensure that the Appellants adhere to the School Regulations 1997. He refused to cooperate and the Appellants continued to wear turban to school.
On 28 July 1997 and 4 August 1997 the Respondent sent two letters to Syed Ahmad informing him about the Appellants’ breach of the School Regulations 1997 and for the Appellants to substitute “songkok” for the turban. The 1st Respondent again requested for Syed Ahmad’s cooperation to avoid disciplinary action being taken against the Appellants.
On 30 August 1997 the Director of Education of Negeri Sembilan wrote to Syed Ahmad stressing that the Appellants had to observe the Regulations “demi kepentingan dan kesejahteraan warga sekolah dan masyarakat sekitar”.
As the Appellants continued to refuse to comply with the Regulations, on 3 November 1997 the 1st Respondent sent a letter to Syed Ahmad informing him that the Appellants had been expelled from the school with effect from 10 November 1997.
They challenged their dismissal in court. The learned Judge found in their favour, inter alia, ruling that the School Regulations 1997 was unconstitutional [(2000) 1 CLJ 393.] The Court of Appeal reversed the judgment of the High Court [(2005) 2 CLJ 255].
This Court granted leave to appeal on one issue only:
Whether the regulations prohibiting the wearing of “serban” by school pupils violate Article 11(1) of the Federal Constitution.
So, the issue before this Court is not whether the wearing of turban is constitutional or not but whether the School Regulations 1997, in so far as it prohibits the wearing of turban by the students of the school as part of the school uniform during school hours is constitutional or not.
Before us, learned counsel for the Appellants argued that the regulation prohibiting students from wearing turban violates the provisions of Article 11 (1) of the Federal Constitution. That Article provides:
“11(1) Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it.”
He argued that this appeal relates to the right to practise one’s religion but submitted that the word “profess” and “practise” must be read together (I do not quite understand what he meant by “must be read together”.) He submitted that the right to practise one’s religion includes every religious practice “which have some basis or become part of that religion whether they are mandatory or otherwise.” That right can only be restricted if, by exercising such rights, it affects public order, public health and public morality enshrined in Article 11(5) of the Constitution. Learned counsel further submitted that the right to wear turban, even though not mandatory, is part of “Islamic prophetic teaching”.
The Court of Appeal, in arriving at its conclusion, applied the test of whether “the right to wear a “serban” is an integral part of the religion of Islam”. The court said that that is a question of evidence and it was for the Appellants to adduce sufficient relevant admissible material to prove that that is indeed the case. The court concluded:
“there was not a shred of evidence before the learned judge confirming that the wearing of a serban is mandatory in Islam and is therefore an integral part of Islam”.
The Court of Appeal in applying “the integral part of the religion” test relied on a number of Indian authorities like The Commissioner, Hindu Religious Endowments, Madras, v. Sri Lakshmindra Thirtha Swamiar AIR 1954 SC 282, Sardar Syedna Taher Saifuddin Saheb v. State of Bombay AIR 1962 SC 853, Javed v State of Haryana (AIR) 2003 SC 3057 and Commissioner of Police v. Acharya Jagadishwaranada Avadhuta (2004) 2 LRI 39. The court also referred to the judgment of the Malaysian Supreme Court in Hajjah Halimatussadiah bte Hj. Kamaruddin v. Public Services Commission Malaysia & Anor (1994) 3 MLJ 61 where the Supreme Court applied the same test.
Before us, the test was strongly criticised. Learned counsel for the Appellants argued that by giving such an interpretation the court was “rewriting Article 11(1) or putting a new or an extra/additional restrictions on the right to profess and practice one’s religion apart from the existing restrictions contained/enshrined in Article 11(5) of the Federal Constitution.” The Court of Appeal was criticised for relying on Indian authorities, especially because of the differences between the provisions of the Indian Constitution and the Federal Constitution, in particular, the preamble to the Indian Constitution declares India to be a secular state and no religion of the state is provided. It is also said, who is to decide whether a particular practice is an integral part of a religion or not?
I must stress here that, we are only concerned with the words “practise his religion”. There is no doubt that the “integral part of the religion” approach has its merits. Otherwise, in a country with many religions being practised, to allow a regulation or law to be declared unconstitutional just because someone claims that it prohibits his “religious practice” no matter how trivial it is and even though in a very limited way, would lead to chaos. However, in my view, that test has its demerits too, because it would lead to the following results: so long as a practice is an integral part of a religion, any restriction or limitation, even regulatory, would be unconstitutional. On the other hand, if the practice is not an integral part of a religion, it can even be prohibited completely. The circumstances under which the law or regulation is made may be such that it is justifiable to restrict or regulate it during a period and at the place when and where it is to operate. A constitution is expected to be in force so long as the country exists but circumstances may change dramatically from time to time, even from place to place. On the other hand, a practice may not be an integral part of the teaching of a religion, in the Islamic sense, it may be a “sunat” e.g. performing the “sunat” prayers. Using this test, it can be prohibited absolutely and forever. I do not think that is right.
I am therefore of the view that whether a practice is or is not an integral part of a religion is not the only factor that should be considered. Other factors are equally important in considering whether a particular law or regulation is constitutional or not under Article 11(1) of the Federal Constitution. I would therefore prefer the following approach. First, there must be a religion. Secondly, there must be a practice. Thirdly, the practice is a practice of that religion. All these having been proved, the court should then consider the importance of the practice in relation to the religion. This is where the question whether the practice is an integral part of the religion or not becomes relevant. If the practice is of a compulsory nature or “an integral part” of the religion, the court should give more weight to it. If it is not, the court, again depending on the degree of its importance, may give a lesser weight to it.
In the Islamic context, the classification made by jurists on the “hukum” regarding a particular practice will be of assistance. Prohibition of a practice which is “wajib” (mandatory) should definitely be viewed more seriously than the prohibition of what is “sunat” (commendable).
The next step is to look at the extent or seriousness of the prohibition. A total prohibition certainly should be viewed more seriously than a partial or temporary prohibition. For example, a regulation that prohibits an adult Muslim male from leaving his job to perform the Friday prayer is more serious than a regulation that requires adult male Muslims employees to take turn to perform their “Asar” prayer, all within the “Asar” period.
Then, we will have to look at the circumstances under which the prohibition is made. An air traffic controller will have to be at his post even during Friday prayers, where replacement by a non-Muslim or a female employee is not possible. A surgeon who starts an emergency operation just before the “Maghrib” prayer may have to miss his prayer. (Even the Shariah provides exceptions and relaxation of its application under certain circumstances).
In other words, in my view, all these factors should be considered in determining whether the “limitation” or “prohibition” of a practice of a religion is constitutional or unconstitutional under Article 11(1) of the Federal Constitution.
Who is to decide? Of course, it has to be the court when the matter comes before the court. Expert witnesses may be called to assist the court regarding a practise or, in the case of Islam, the issue regarding the “hukum” of the practice may be referred to the Shari’ah Committees (Fatwa Committees) in the States or the National Fatwa Council. Such a reference had been made by the Supreme Court in Dalip Kaur v. Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor. (1992) 1 MLJ 1.
In this case, that Islam is a religion is a fact that cannot be denied.
The next question is whether the wearing of turban by boys of the age of the Appellants is a practice of the religion of Islam. Islam is not about turban and beard. The pagan Arabs, including Abu Jahl, wore turbans and kept beards. It was quite natural for the Prophet (P.B.U.H.), born into the community and grew up in it, to do the same. As it was not repugnant to the teaching of Islam, he continued to do so. During the argument, in answer to my question, learned counsel tried to equate the wearing of turban with the “Hajj”: the “Hajj” too was performed in pre-Islamic days and continued to be performed after the coming of Islam. That, with respect, is misconceived. The “Hajj” performed by the pagan Arabs was completely different from the “Hajj” taught by the Prophet (P.B.U.H.). Further more, there are clear provisions in the Al-Quran that make the performance of the “Hajj” mandatory and one of the pillars of Islam.
Turbans were (and are) not only worn by Arabs. Other peoples, living in the desert or semi-desert areas, e.g. the Afghans and Persians wore/wear them too. Indeed, anybody who goes to Mecca will immediately realize that a piece of cloth, by whatever name it is called, to cover his head and face from the heat, the dryness and the dust, is most useful. Nowadays, the turbans, distinguished by their designs and the way they are tied or worn, symbolize the nationality of the persons wearing them e.g. whether they are Saudis, Sudanese, Afghans, Omanis, etc. The turban has become part of the national dress of those countries.
In Malaysia, until 1960’s, the turban worn the way the Appellants wear them, were only worn by “Hajis”, men who had performed the Hajj (pilgrimage). There were few “Hajis” then, one or two in a village. Of course the wearing of turban carried with it a social status, a sign of “alim” (knowledgeable in matters of Islamic religion) and “warak” (piety). Non-Hajis would not wear them. They would be ashamed to do so.
Then came 1970’s and the appearance of “dakwah” (missionary) groups. They distinguished themselves by their dress, the men and their male children wore “jubah” and “serban”. One such organization had been declared unlawful. We saw their top leaders confessing, crying and repenting over television!
It is interesting to note that, even now, very few of our Muftis and hardly any Shari’ah Court Judge wears turban.
Coming now to boys of the age of the Appellants. According to Shari’ah (and/or fiqh), the obligation to perform even a mandatory (“wajib”) practice like the five daily prayers, is only mandatory on Muslims who have attained the age of majority (“baligh”), usually taken to be 15 years of age for boys. Clearly the Appellants have not. Of course it is obligatory on the parent or guardian to teach them how to perform the prayers, for example, and to encourage them to perform them even before they reach the age of majority. So, even with regard to practices that are mandatory (“wajib”), the Shari’ah treats adults and children differently, like any law, for that matter.
The best place to see whether it is the practice of boys, I am speaking about Arab and Arabic-speaking boys (not Malay boys living in a FELDA settlement), of the age of the Appellants to wear turban or not, is to go to Masjid Al-Haram, the birthplace of the Prophet (P.B.U.H.), where the “House of Allah” (“Baitullah” or the “Kaabah”) stands. Go there after the “Asar” prayer. One can see scores of boys of the age of the Appellants sitting cross-legged learning to read and reciting the Al-Quran. None of them wears turban, whether tied the way the Appellants do or otherwise.
(I must admit that these observations that I have made do not come from evidence adduced in court. However, sitting in the highest court in the country and interpreting the Constitution, I hold the view that a judge is entitled to look around and observe the happenings in the society. These are matters that one sees in everyday life. No expertise or technical qualification is required to observe such happenings. Neither should judges not read anything other than law. I do not think that judges should keep their eyes shut and only wait for “expert witnesses” to inform them such things as the kind of dress Malaysians usually wear or that we can hardly find bullock carts on Malaysian road nowadays. “Justice is blind”. Yes. But not judges. They should not be).
As far as I can ascertain, the Al-Quran makes no mention about the wearing of turban. Neither SP3 nor the learned trial Judge who cited some verses from the Al-Quran which, with respect, are not relevant to the issue, could produce any. The one “hadith” referred to by SP3 makes no mention of its classification in terms of authoritativeness. In any event one does not look at one “hadith” in isolation to make a ruling on a matter. Even then, the way it is said, (based on the evidence given by SP3: “Hadith: hendaklah kelian memakai serban kerana kelian akan bertambah sabar”) shows that there is a reason for it. As far as the reason given, I shall not comment. Certainly the Prophet (P.B.U.H.) knows his people better and what suits them. The other “hadith” mentioned by SP3 only tells us how the Prophet (P.B.U.H.) used to wear his turban, nothing more. Of course, I am also aware of other “hadiths”, not mentioned by SP3 or the learned trial Judge, that prohibit the wearing of turban by men when in “ihram”. They do not assist us.
It is also not disputed that there had been no “fatwa” in this country on the wearing of turban.
I accept that the Prophet (P.B.U.H.) wore turban. But he also rode a camel, built his house and mosque with clay walls and roof of leaves of date palms and brushed his teeth with the twig of a plant. Does that make the riding a camel a more pious deed than travelling in an aeroplane? Is it preferable to build houses and mosques using the same materials used by the Prophet (P.B.U.H.) and the same architecture adopted by him during his time? In Malaysia, Muslim houses and mosques would leak when it rains! There would be no Blue Mosque or Taj Mahal, not even the present Masjid Al-Haram and Masjid Al-Nabawi, Alhambra or Putrajaya that the Muslims can be proud of! Again, is it more Islamic to brush one’s teeth with a twig than using a modern tooth brush with tooth paste and water to wash in the privacy of one’s bathroom?
It is not everything that the Prophet (P.B.U.H.) did or the way he did it that is legally (according to Shariah) or religiously binding on Muslims or even preferable and should be followed.
I find the book “Principles of Islamic Jurisprudence” by Mohammad Hashim Kamali (1991) to be very useful in understanding the issue on “Sunnah”. I shall only quote certain parts that are of particular relevance to the issue under discussion:
“The entire bulk of the Sunnah, that is, the sayings, acts and tacit enactments of the Prophet, may be once again divided into two types: non-legal and legal Sunnah.
Non-legal Sunnah (Sunnah ghayr tashri’iyyah) mainly consists of the natural activities of the Prophet (al-af’al al’jibilliyyah) such as the manner in which he ate, slept, dressed, and such other activities as do not seek to constitute a part of the Shari’ah. Activities of this nature are not of primary importance to the Prophetic mission and therefore do not constitute legal norms. According to the majority of ulema, the Prophet’s preferences in these areas, such as his favourite colours, or the fact that he slept on his right side in the first place, etc., only indicate the permissibility (ibahah) of the acts in question.29”
……………………………….
“On a similar note, Sunnah which partakes in specialized or technical knowledge, such as medicine, commerce and agriculture, is once again held to be peripheral to the main function of the Prophetic mission and is therefore not a part of the Shari’ah. As for acts and sayings of the Prophet that related to particular circumstances such as the strategy of war, including such devices that misled the enemy forces, timing of attack, siege or withdrawal, these too are considered to be situational and not a part of the Shari’ah.31”
…………………………………
“Certain activities of the Prophet may fall in between the two categories of legal and non-legal Sunnah as they combine the attributes of both. Thus it may be difficult to determine whether an act was strictly personal or was intended to set an example for others to follow. It is also known that at times the Prophet acted in a certain way which was in accord with the then prevailing custom of the community. For instance, the Prophet kept his beard at a certain length and trimmed his moustache. The majority of ulema have viewed this not as a mere observance of the familiar usage at the time but as an example for the believers to follow. Others have held the opposite view by saying that it was a part of the social practice of the Arabs which was designed to prevent resemblance to the Jews and some non-Arabs who used to shave the beard and grow the moustache. Such practices were, in other words, a part of the current usage and basically optional. Similarly, it is known that the Prophet used to go to the “id prayers (salat al-‘id) by one route and return from the mosque by a different route, and that the Prophet at times performed the hajj pilgrimage while riding a camel. The Shafi’i jurists are inclined to prefer the commendable (mandub) in such acts to mere permissibility whereas the Hanafis consider them as merely permissible, or mubah.34”
SP3 gave his opinion that the wearing of turban is “sunat”. Clearly he based his opinion on the views of the traditional jurists – the turban– wearing scholars from turban-wearing communities who lived at a time when the wearing of turban was customary or fashionable. Certainly their surroundings could have, to a certain extent, influenced their views on a matter such as the wearing of turban where Al-Quran is silent. That is natural. Imam Shafie revised some of his rulings after living in Egypt for a few years and observing the custom of the people there. That is the mark of a great jurist!
Even if we were to accept the view of SP3 that the wearing of turban (by adult Muslim male) is “sunat” or (commendable), it certainly does not rank on the same level as “sunat prayers”, as learned counsel for the Appellants tried to convince the court when the question was put to him by me.
So, the “practice” is of little significance from the point of view of the religion of Islam, what more, in relation to under-aged boys. Certainly, it is not a part of “Islamic prophetic teaching” as submitted by the learned counsel for the Appellants.
Moving to the second factor which, in my view, should be considered i.e. the extent of the “prohibition”.
We are not dealing with a total prohibition of wearing of the turban. The students, primary school students of the school, are not allowed to wear the turban as part of the school uniform, i.e. during the school hours. They are not prevented from wearing the turban at other times. Even in school, certainly, they would not be prevented from wearing the turban when they perform, say, their “Zohor” prayer in the school “surau” (prayer room). But, if they join the “Boy Scout”, it is only natural if they are required to wear the Scouts uniform during its activities. Or, when they play football, naturally they would be required to wear shorts and T-shirts. Should they be allowed to wear “jubah” when playing football because it was the practice of the Prophet (P.B.U.H.) to wear jubah? Following the arguments or learned counsel for the Appellants, they should. Certainly, there is a place for everything.
Furthermore, there is nothing to prevent them from changing school, e.g. to a “pondok” school that would allow them to wear the turban.
To accept the learned counsel’s argument would mean that anybody has a right to do anything, any time, anywhere which he considers to be a practice of his religion, no matter how trivial. The only limit is clause (5). To me, that cannot be the law.
Coming now to the third factor that in my view, should be considered i.e. the circumstances under which the “prohibition” was made.
Whether we like it or not, we have to accept that Malaysia is not the same as a Malay State prior to the coming of the British. She is multi-racial, multi-cultural, multi-lingual and multi-religious. It is difficult enough to keep the 14 States together. By any standard, Malaysia’s success has been miraculous in terms of unity, peace and prosperity. Whatever other factors that had contributed to it, we cannot ignore the educational system that had helped to mould the minds of Malaysian boys and girls to grow up as Malaysians. Recently, we heard about ”polarization” of students at universities not only on racial and religious grounds but also among the Muslim students themselves. The polarization was considered serious and even a dangerous trend. Hence, national service was introduced. Of course, such polarization do not begin the moment the students step into the campus. The seeds were sown and grew while they were in school. Our educationists, with their experience in dealing with students on the ground, should be given some respect and credit when they formulate some regulations applicable in their schools for the general good of all the students, the society and later the nation.
Look at these three Appellants. During their formative years, when they should be attending school, study and play with other students, obey the school discipline, respect their teachers, they were made to spend those years being different from other students, disregard the school regulations, disobey the teachers, rebel against the authorities, just because Syed Ahmad, described by the learned trial Judge as “angkuh” wanted the three Appellants to wear the turban to school because the turban is his family’s emblem!
Considering all these factors, in my judgment, the School Regulations 1997 in so far as it prohibits the students from wearing turban as part of the school uniform during school hours does not contravene the provision of Article 11(1) of the Federal Constitution and therefore is not unconstitutional.
I would dismiss the appeal with costs here and in the courts below and order that the deposit be paid to the respondents to account of taxed costs.
Both the learned President of the Court of Appeal and the learned Chief Judge (Sabah & Sarawak) had read this judgment in draft and agreed with it. The Court orders accordingly.
(DATO’ ABDUL HAMID BIN HAJI MOHAMAD)
Hakim, Mahkamah Persekutuan
Malaysia.
Tarikh: 12 Julai 2006
Tarikh Sidang: 6 Mac 2006
Peguamcara Perayu:
Mohamed Hanipa B. Maidin
Muhammad Firdaus B. Zakaria
Mohd. Fadzli B. Mohd. Ramly
Abdullah Bin Abdul Karim
(Tetuan Mohamed Hanipa & Associates).
Peguamcara Responden:
Dato’ Umi Kalthum Binti Abdul Majid
Azizah Binti Haji Nawawi
(Peguam Kanan Persekutuan
Jabatan Peguam Negara).
Thursday, 13 July 2006, 14:21
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
(BIDANG KUASA RAYUAN)
PERMOHONAN SIVIL NO. 01-3-2005(N)
ANTARA
1. MEOR ATIQULRAHMAN BIN ISHAK, seorang budak, melalui Penjaga ad litem, Syed Ahmad Johari bin Syed Mohd.
2. SYED ABDULLAH KHALIQ ASLAMY BIN SYED AHMAD JOHARI, seorang budak, melalui bapanya, Syed Ahmad Johari bin Syed Mohd
3. SYED AHMAD SYAKUR DIHYA BIN SYED AHMAD JOHARI , seorang budak, melalui bapanya, Syed Ahmad Johari bin Syed Mohd
… Perayu-Perayu
DAN
1. FATIMAH BINTI SIHI
2. KETUA SETIAUSAHA,KEMENTERIAN PENDIDIKAN MALAYSIA
3. KERAJAAN MALAYSIA
… Responden-Responden
KORAM:
ABDUL MALEK AHMAD, PCA
STEVE SHIM LIP KIONG CJ (SABAH & SARAWAK)
ABDUL HAMID MOHAMAD FCJ
JUDGMENT
ABDUL HAMID MOHAMAD FCJ (delivering the judgment of the Court): Syed Ahmad Johari bin Syed Mohd (“Syed Ahmad”) is the father of the 2nd and 3rd Appellants and the guardian of the 1st Appellant. He and his family live in a FELDA Scheme in Serting, Bahau, Negeri Sembilan. He himself is a teacher at Sekolah Menengah FELDA Lui Barat in the same area. The three Appellants were students at Sekolah Kebangsaan Serting Hilir (FELDA), Bandar Baru Serting, Negeri Sembilan. At the material time, the 1st, 2nd, and 3rd Appellants were in Standard 5, 3 and 2 respectively and about 11, 9 and 8 years old respectively.
The school had issued the Peraturan Sekolah Kebangsaan Serting (FELDA) 1997 (“The School Regulations 1997”), made pursuant to Surat Pekeliling Ikhtisas Bil. 9/1975 issued by the Ministry of Education.
Regulation 3 of the School Regulations 1997 stipulates, inter alia, that the uniform for male pupils comprises of blue black long pants, white short-sleeved shirt, white rubber shoes and socks. Regulation 3(f)(v) provides that black or blue black songkok is allowed to be worn. However, in regulation 3(i)(i), all pupils are prohibited from wearing “jubah, turban (serban), topi, ketayap dan purdah”.
The Appellants wore turban as part of the school uniform to school. They were advised not to do so and to comply with the School Regulations 1997. When they refused, the 1st Respondent requested Syed Ahmad to see her. At a meeting on 3 April 1997, the 1st Respondent requested Syed Ahmad to cooperate to ensure that the Appellants adhere to the School Regulations 1997. He refused to cooperate and the Appellants continued to wear turban to school.
On 28 July 1997 and 4 August 1997 the Respondent sent two letters to Syed Ahmad informing him about the Appellants’ breach of the School Regulations 1997 and for the Appellants to substitute “songkok” for the turban. The 1st Respondent again requested for Syed Ahmad’s cooperation to avoid disciplinary action being taken against the Appellants.
On 30 August 1997 the Director of Education of Negeri Sembilan wrote to Syed Ahmad stressing that the Appellants had to observe the Regulations “demi kepentingan dan kesejahteraan warga sekolah dan masyarakat sekitar”.
As the Appellants continued to refuse to comply with the Regulations, on 3 November 1997 the 1st Respondent sent a letter to Syed Ahmad informing him that the Appellants had been expelled from the school with effect from 10 November 1997.
They challenged their dismissal in court. The learned Judge found in their favour, inter alia, ruling that the School Regulations 1997 was unconstitutional [(2000) 1 CLJ 393.] The Court of Appeal reversed the judgment of the High Court [(2005) 2 CLJ 255].
This Court granted leave to appeal on one issue only:
Whether the regulations prohibiting the wearing of “serban” by school pupils violate Article 11(1) of the Federal Constitution.
So, the issue before this Court is not whether the wearing of turban is constitutional or not but whether the School Regulations 1997, in so far as it prohibits the wearing of turban by the students of the school as part of the school uniform during school hours is constitutional or not.
Before us, learned counsel for the Appellants argued that the regulation prohibiting students from wearing turban violates the provisions of Article 11 (1) of the Federal Constitution. That Article provides:
“11(1) Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it.”
He argued that this appeal relates to the right to practise one’s religion but submitted that the word “profess” and “practise” must be read together (I do not quite understand what he meant by “must be read together”.) He submitted that the right to practise one’s religion includes every religious practice “which have some basis or become part of that religion whether they are mandatory or otherwise.” That right can only be restricted if, by exercising such rights, it affects public order, public health and public morality enshrined in Article 11(5) of the Constitution. Learned counsel further submitted that the right to wear turban, even though not mandatory, is part of “Islamic prophetic teaching”.
The Court of Appeal, in arriving at its conclusion, applied the test of whether “the right to wear a “serban” is an integral part of the religion of Islam”. The court said that that is a question of evidence and it was for the Appellants to adduce sufficient relevant admissible material to prove that that is indeed the case. The court concluded:
“there was not a shred of evidence before the learned judge confirming that the wearing of a serban is mandatory in Islam and is therefore an integral part of Islam”.
The Court of Appeal in applying “the integral part of the religion” test relied on a number of Indian authorities like The Commissioner, Hindu Religious Endowments, Madras, v. Sri Lakshmindra Thirtha Swamiar AIR 1954 SC 282, Sardar Syedna Taher Saifuddin Saheb v. State of Bombay AIR 1962 SC 853, Javed v State of Haryana (AIR) 2003 SC 3057 and Commissioner of Police v. Acharya Jagadishwaranada Avadhuta (2004) 2 LRI 39. The court also referred to the judgment of the Malaysian Supreme Court in Hajjah Halimatussadiah bte Hj. Kamaruddin v. Public Services Commission Malaysia & Anor (1994) 3 MLJ 61 where the Supreme Court applied the same test.
Before us, the test was strongly criticised. Learned counsel for the Appellants argued that by giving such an interpretation the court was “rewriting Article 11(1) or putting a new or an extra/additional restrictions on the right to profess and practice one’s religion apart from the existing restrictions contained/enshrined in Article 11(5) of the Federal Constitution.” The Court of Appeal was criticised for relying on Indian authorities, especially because of the differences between the provisions of the Indian Constitution and the Federal Constitution, in particular, the preamble to the Indian Constitution declares India to be a secular state and no religion of the state is provided. It is also said, who is to decide whether a particular practice is an integral part of a religion or not?
I must stress here that, we are only concerned with the words “practise his religion”. There is no doubt that the “integral part of the religion” approach has its merits. Otherwise, in a country with many religions being practised, to allow a regulation or law to be declared unconstitutional just because someone claims that it prohibits his “religious practice” no matter how trivial it is and even though in a very limited way, would lead to chaos. However, in my view, that test has its demerits too, because it would lead to the following results: so long as a practice is an integral part of a religion, any restriction or limitation, even regulatory, would be unconstitutional. On the other hand, if the practice is not an integral part of a religion, it can even be prohibited completely. The circumstances under which the law or regulation is made may be such that it is justifiable to restrict or regulate it during a period and at the place when and where it is to operate. A constitution is expected to be in force so long as the country exists but circumstances may change dramatically from time to time, even from place to place. On the other hand, a practice may not be an integral part of the teaching of a religion, in the Islamic sense, it may be a “sunat” e.g. performing the “sunat” prayers. Using this test, it can be prohibited absolutely and forever. I do not think that is right.
I am therefore of the view that whether a practice is or is not an integral part of a religion is not the only factor that should be considered. Other factors are equally important in considering whether a particular law or regulation is constitutional or not under Article 11(1) of the Federal Constitution. I would therefore prefer the following approach. First, there must be a religion. Secondly, there must be a practice. Thirdly, the practice is a practice of that religion. All these having been proved, the court should then consider the importance of the practice in relation to the religion. This is where the question whether the practice is an integral part of the religion or not becomes relevant. If the practice is of a compulsory nature or “an integral part” of the religion, the court should give more weight to it. If it is not, the court, again depending on the degree of its importance, may give a lesser weight to it.
In the Islamic context, the classification made by jurists on the “hukum” regarding a particular practice will be of assistance. Prohibition of a practice which is “wajib” (mandatory) should definitely be viewed more seriously than the prohibition of what is “sunat” (commendable).
The next step is to look at the extent or seriousness of the prohibition. A total prohibition certainly should be viewed more seriously than a partial or temporary prohibition. For example, a regulation that prohibits an adult Muslim male from leaving his job to perform the Friday prayer is more serious than a regulation that requires adult male Muslims employees to take turn to perform their “Asar” prayer, all within the “Asar” period.
Then, we will have to look at the circumstances under which the prohibition is made. An air traffic controller will have to be at his post even during Friday prayers, where replacement by a non-Muslim or a female employee is not possible. A surgeon who starts an emergency operation just before the “Maghrib” prayer may have to miss his prayer. (Even the Shariah provides exceptions and relaxation of its application under certain circumstances).
In other words, in my view, all these factors should be considered in determining whether the “limitation” or “prohibition” of a practice of a religion is constitutional or unconstitutional under Article 11(1) of the Federal Constitution.
Who is to decide? Of course, it has to be the court when the matter comes before the court. Expert witnesses may be called to assist the court regarding a practise or, in the case of Islam, the issue regarding the “hukum” of the practice may be referred to the Shari’ah Committees (Fatwa Committees) in the States or the National Fatwa Council. Such a reference had been made by the Supreme Court in Dalip Kaur v. Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor. (1992) 1 MLJ 1.
In this case, that Islam is a religion is a fact that cannot be denied.
The next question is whether the wearing of turban by boys of the age of the Appellants is a practice of the religion of Islam. Islam is not about turban and beard. The pagan Arabs, including Abu Jahl, wore turbans and kept beards. It was quite natural for the Prophet (P.B.U.H.), born into the community and grew up in it, to do the same. As it was not repugnant to the teaching of Islam, he continued to do so. During the argument, in answer to my question, learned counsel tried to equate the wearing of turban with the “Hajj”: the “Hajj” too was performed in pre-Islamic days and continued to be performed after the coming of Islam. That, with respect, is misconceived. The “Hajj” performed by the pagan Arabs was completely different from the “Hajj” taught by the Prophet (P.B.U.H.). Further more, there are clear provisions in the Al-Quran that make the performance of the “Hajj” mandatory and one of the pillars of Islam.
Turbans were (and are) not only worn by Arabs. Other peoples, living in the desert or semi-desert areas, e.g. the Afghans and Persians wore/wear them too. Indeed, anybody who goes to Mecca will immediately realize that a piece of cloth, by whatever name it is called, to cover his head and face from the heat, the dryness and the dust, is most useful. Nowadays, the turbans, distinguished by their designs and the way they are tied or worn, symbolize the nationality of the persons wearing them e.g. whether they are Saudis, Sudanese, Afghans, Omanis, etc. The turban has become part of the national dress of those countries.
In Malaysia, until 1960’s, the turban worn the way the Appellants wear them, were only worn by “Hajis”, men who had performed the Hajj (pilgrimage). There were few “Hajis” then, one or two in a village. Of course the wearing of turban carried with it a social status, a sign of “alim” (knowledgeable in matters of Islamic religion) and “warak” (piety). Non-Hajis would not wear them. They would be ashamed to do so.
Then came 1970’s and the appearance of “dakwah” (missionary) groups. They distinguished themselves by their dress, the men and their male children wore “jubah” and “serban”. One such organization had been declared unlawful. We saw their top leaders confessing, crying and repenting over television!
It is interesting to note that, even now, very few of our Muftis and hardly any Shari’ah Court Judge wears turban.
Coming now to boys of the age of the Appellants. According to Shari’ah (and/or fiqh), the obligation to perform even a mandatory (“wajib”) practice like the five daily prayers, is only mandatory on Muslims who have attained the age of majority (“baligh”), usually taken to be 15 years of age for boys. Clearly the Appellants have not. Of course it is obligatory on the parent or guardian to teach them how to perform the prayers, for example, and to encourage them to perform them even before they reach the age of majority. So, even with regard to practices that are mandatory (“wajib”), the Shari’ah treats adults and children differently, like any law, for that matter.
The best place to see whether it is the practice of boys, I am speaking about Arab and Arabic-speaking boys (not Malay boys living in a FELDA settlement), of the age of the Appellants to wear turban or not, is to go to Masjid Al-Haram, the birthplace of the Prophet (P.B.U.H.), where the “House of Allah” (“Baitullah” or the “Kaabah”) stands. Go there after the “Asar” prayer. One can see scores of boys of the age of the Appellants sitting cross-legged learning to read and reciting the Al-Quran. None of them wears turban, whether tied the way the Appellants do or otherwise.
(I must admit that these observations that I have made do not come from evidence adduced in court. However, sitting in the highest court in the country and interpreting the Constitution, I hold the view that a judge is entitled to look around and observe the happenings in the society. These are matters that one sees in everyday life. No expertise or technical qualification is required to observe such happenings. Neither should judges not read anything other than law. I do not think that judges should keep their eyes shut and only wait for “expert witnesses” to inform them such things as the kind of dress Malaysians usually wear or that we can hardly find bullock carts on Malaysian road nowadays. “Justice is blind”. Yes. But not judges. They should not be).
As far as I can ascertain, the Al-Quran makes no mention about the wearing of turban. Neither SP3 nor the learned trial Judge who cited some verses from the Al-Quran which, with respect, are not relevant to the issue, could produce any. The one “hadith” referred to by SP3 makes no mention of its classification in terms of authoritativeness. In any event one does not look at one “hadith” in isolation to make a ruling on a matter. Even then, the way it is said, (based on the evidence given by SP3: “Hadith: hendaklah kelian memakai serban kerana kelian akan bertambah sabar”) shows that there is a reason for it. As far as the reason given, I shall not comment. Certainly the Prophet (P.B.U.H.) knows his people better and what suits them. The other “hadith” mentioned by SP3 only tells us how the Prophet (P.B.U.H.) used to wear his turban, nothing more. Of course, I am also aware of other “hadiths”, not mentioned by SP3 or the learned trial Judge, that prohibit the wearing of turban by men when in “ihram”. They do not assist us.
It is also not disputed that there had been no “fatwa” in this country on the wearing of turban.
I accept that the Prophet (P.B.U.H.) wore turban. But he also rode a camel, built his house and mosque with clay walls and roof of leaves of date palms and brushed his teeth with the twig of a plant. Does that make the riding a camel a more pious deed than travelling in an aeroplane? Is it preferable to build houses and mosques using the same materials used by the Prophet (P.B.U.H.) and the same architecture adopted by him during his time? In Malaysia, Muslim houses and mosques would leak when it rains! There would be no Blue Mosque or Taj Mahal, not even the present Masjid Al-Haram and Masjid Al-Nabawi, Alhambra or Putrajaya that the Muslims can be proud of! Again, is it more Islamic to brush one’s teeth with a twig than using a modern tooth brush with tooth paste and water to wash in the privacy of one’s bathroom?
It is not everything that the Prophet (P.B.U.H.) did or the way he did it that is legally (according to Shariah) or religiously binding on Muslims or even preferable and should be followed.
I find the book “Principles of Islamic Jurisprudence” by Mohammad Hashim Kamali (1991) to be very useful in understanding the issue on “Sunnah”. I shall only quote certain parts that are of particular relevance to the issue under discussion:
“The entire bulk of the Sunnah, that is, the sayings, acts and tacit enactments of the Prophet, may be once again divided into two types: non-legal and legal Sunnah.
Non-legal Sunnah (Sunnah ghayr tashri’iyyah) mainly consists of the natural activities of the Prophet (al-af’al al’jibilliyyah) such as the manner in which he ate, slept, dressed, and such other activities as do not seek to constitute a part of the Shari’ah. Activities of this nature are not of primary importance to the Prophetic mission and therefore do not constitute legal norms. According to the majority of ulema, the Prophet’s preferences in these areas, such as his favourite colours, or the fact that he slept on his right side in the first place, etc., only indicate the permissibility (ibahah) of the acts in question.29”
……………………………….
“On a similar note, Sunnah which partakes in specialized or technical knowledge, such as medicine, commerce and agriculture, is once again held to be peripheral to the main function of the Prophetic mission and is therefore not a part of the Shari’ah. As for acts and sayings of the Prophet that related to particular circumstances such as the strategy of war, including such devices that misled the enemy forces, timing of attack, siege or withdrawal, these too are considered to be situational and not a part of the Shari’ah.31”
…………………………………
“Certain activities of the Prophet may fall in between the two categories of legal and non-legal Sunnah as they combine the attributes of both. Thus it may be difficult to determine whether an act was strictly personal or was intended to set an example for others to follow. It is also known that at times the Prophet acted in a certain way which was in accord with the then prevailing custom of the community. For instance, the Prophet kept his beard at a certain length and trimmed his moustache. The majority of ulema have viewed this not as a mere observance of the familiar usage at the time but as an example for the believers to follow. Others have held the opposite view by saying that it was a part of the social practice of the Arabs which was designed to prevent resemblance to the Jews and some non-Arabs who used to shave the beard and grow the moustache. Such practices were, in other words, a part of the current usage and basically optional. Similarly, it is known that the Prophet used to go to the “id prayers (salat al-‘id) by one route and return from the mosque by a different route, and that the Prophet at times performed the hajj pilgrimage while riding a camel. The Shafi’i jurists are inclined to prefer the commendable (mandub) in such acts to mere permissibility whereas the Hanafis consider them as merely permissible, or mubah.34”
SP3 gave his opinion that the wearing of turban is “sunat”. Clearly he based his opinion on the views of the traditional jurists – the turban– wearing scholars from turban-wearing communities who lived at a time when the wearing of turban was customary or fashionable. Certainly their surroundings could have, to a certain extent, influenced their views on a matter such as the wearing of turban where Al-Quran is silent. That is natural. Imam Shafie revised some of his rulings after living in Egypt for a few years and observing the custom of the people there. That is the mark of a great jurist!
Even if we were to accept the view of SP3 that the wearing of turban (by adult Muslim male) is “sunat” or (commendable), it certainly does not rank on the same level as “sunat prayers”, as learned counsel for the Appellants tried to convince the court when the question was put to him by me.
So, the “practice” is of little significance from the point of view of the religion of Islam, what more, in relation to under-aged boys. Certainly, it is not a part of “Islamic prophetic teaching” as submitted by the learned counsel for the Appellants.
Moving to the second factor which, in my view, should be considered i.e. the extent of the “prohibition”.
We are not dealing with a total prohibition of wearing of the turban. The students, primary school students of the school, are not allowed to wear the turban as part of the school uniform, i.e. during the school hours. They are not prevented from wearing the turban at other times. Even in school, certainly, they would not be prevented from wearing the turban when they perform, say, their “Zohor” prayer in the school “surau” (prayer room). But, if they join the “Boy Scout”, it is only natural if they are required to wear the Scouts uniform during its activities. Or, when they play football, naturally they would be required to wear shorts and T-shirts. Should they be allowed to wear “jubah” when playing football because it was the practice of the Prophet (P.B.U.H.) to wear jubah? Following the arguments or learned counsel for the Appellants, they should. Certainly, there is a place for everything.
Furthermore, there is nothing to prevent them from changing school, e.g. to a “pondok” school that would allow them to wear the turban.
To accept the learned counsel’s argument would mean that anybody has a right to do anything, any time, anywhere which he considers to be a practice of his religion, no matter how trivial. The only limit is clause (5). To me, that cannot be the law.
Coming now to the third factor that in my view, should be considered i.e. the circumstances under which the “prohibition” was made.
Whether we like it or not, we have to accept that Malaysia is not the same as a Malay State prior to the coming of the British. She is multi-racial, multi-cultural, multi-lingual and multi-religious. It is difficult enough to keep the 14 States together. By any standard, Malaysia’s success has been miraculous in terms of unity, peace and prosperity. Whatever other factors that had contributed to it, we cannot ignore the educational system that had helped to mould the minds of Malaysian boys and girls to grow up as Malaysians. Recently, we heard about ”polarization” of students at universities not only on racial and religious grounds but also among the Muslim students themselves. The polarization was considered serious and even a dangerous trend. Hence, national service was introduced. Of course, such polarization do not begin the moment the students step into the campus. The seeds were sown and grew while they were in school. Our educationists, with their experience in dealing with students on the ground, should be given some respect and credit when they formulate some regulations applicable in their schools for the general good of all the students, the society and later the nation.
Look at these three Appellants. During their formative years, when they should be attending school, study and play with other students, obey the school discipline, respect their teachers, they were made to spend those years being different from other students, disregard the school regulations, disobey the teachers, rebel against the authorities, just because Syed Ahmad, described by the learned trial Judge as “angkuh” wanted the three Appellants to wear the turban to school because the turban is his family’s emblem!
Considering all these factors, in my judgment, the School Regulations 1997 in so far as it prohibits the students from wearing turban as part of the school uniform during school hours does not contravene the provision of Article 11(1) of the Federal Constitution and therefore is not unconstitutional.
I would dismiss the appeal with costs here and in the courts below and order that the deposit be paid to the respondents to account of taxed costs.
Both the learned President of the Court of Appeal and the learned Chief Judge (Sabah & Sarawak) had read this judgment in draft and agreed with it. The Court orders accordingly.
(DATO’ ABDUL HAMID BIN HAJI MOHAMAD)
Hakim, Mahkamah Persekutuan
Malaysia.
Tarikh: 12 Julai 2006
Tarikh Sidang: 6 Mac 2006
Peguamcara Perayu:
Mohamed Hanipa B. Maidin
Muhammad Firdaus B. Zakaria
Mohd. Fadzli B. Mohd. Ramly
Abdullah Bin Abdul Karim
(Tetuan Mohamed Hanipa & Associates).
Peguamcara Responden:
Dato’ Umi Kalthum Binti Abdul Majid
Azizah Binti Haji Nawawi
(Peguam Kanan Persekutuan
Jabatan Peguam Negara).
The Serban Case: Judge: Give credit to educationists in drawing up rules for good of all
The Serban Case: Judge: Give credit to educationists in drawing up rules for good of all
Thursday, 13 July 2006, 09:08
©New Straits Times (Used by permission)
By A. Hafiz Yatim
PUTRAJAYA: The country’s highest court handed down a significant decision yesterday, ruling that authorities acted within the law in stopping students from wearing turbans during school hours.
It also endorsed moves by the Government to preserve Malaysia’s multi-racial and multi-religious make-up.
Before the Federal Court was a challenge by three Muslim boys — then aged between eight and 11 — to the Education Ministry’s no-turban-with-uniform rule, which they claimed was unconstitutional. (Click here to read the full judgment)
Delivering the judgment, Federal Court Judge Datuk Abdul Hamid Mohamad wrote that Malaysians had to accept a fact about the country:
"She is multi-racial, multi-cultural, multi-lingual and multi-religious.
"By any standard, Malaysia’s success has been miraculous in terms of unity, peace and prosperity.
"Whatever other factors had contributed to it, we cannot ignore the educational system that had helped mould the minds of Malaysian boys and girls to grow up as Malaysians.
"Recently, we’ve heard about the polarisation of students in universities not only on racial and religious grounds but also among Muslim students themselves.
"The polarisation was considered serious and even a dangerous trend...
"Of course, such polarisation did not begin the moment the students stepped on campus. The seeds were sown and they grew while they were in school.
"Our educationists, with their experience in dealing with students on the ground, should be given respect and credit when they formulate regulations applicable for the general good of the students, society and nation," he said, dismissing the appeal by the three students.
The three — Meor Atiqulrahman Ishak and brothers Syed Abdullah Khaliq Aslamy Syed Ahmad Johari and Syed Ahmad Syakur — were expelled from Sekolah Kebangsaan Felda Serting in Negri Sembilan on Nov 10, 1997 for refusing to shed their turbans.
They filed a summons through their guardian and father, Syed Ahmad Johari Syed Mohamed, naming the headmistress, Fatimah Sihi, the secretary-general of the Education Ministry and the Government as respondents.
Seremban High Court judge Datuk Mohamed Noor Abdullah on Aug 6, 1999 nullified the expulsion order after ruling that the headmistress did not have the authority to expel them but the ruling was set aside with costs by the Court of Appeal on Nov 22, 2004.
They then appealed against this decision to the Federal Court.
Hamid said the issue before the court was whether or not the School Regulations 1997, which prohibit the wearing of the turban as part of the school uniform during school hours, violate the Federal Constitution.
The appellants argued that the Constitution guaranteed their right to profess and practise their religion.
"I’m of the view that whether a practice is or is not an integral part of a religion is not the only factor that should be considered," Hamid said.
The court should also consider the importance of the practice in relation to the religion, said the judge, and if the practice was of a compulsory nature or an integral part of the religion, it should be given more weight.
"Prohibition of a practice which is wajib (mandatory) should definitely be viewed more seriously than the prohibition of what is sunat (commendable)," he said.
Hamid said the second factor considered by the court was the extent of the prohibition imposed by the regulations.
"The students are not allowed to wear the turban as part of the school uniform. They are not prevented from wearing the turban at other times.
"Even in school, they would not be prevented from wearing the turban when they perform, say, their Zohor prayers in the prayer room.
"Should they be allowed to wear the jubah (robe) when playing football because it was the practice of the Prophet to wear the jubah? Certainly, there is a place for everything," he said.
Hamid said that the practice of wearing a turban was of little significance from Islam’s point of view, more so in relation to young boys.
He noted that there was no mention about the wearing of a turban in the Quran.
"I accept that the Prophet wore a turban.
"But he also rode a camel, built his house and mosque with clay walls and a roof of leaves of date palms, and brushed his teeth with the twig of a plant," Hamid said in the judgment, delivered by Federal Court Deputy Registrar Kamaruddin Kamsun.
"Does that make riding a camel a more pious deed than travelling in an aeroplane?
"Is it preferable to build houses and mosques using the same materials used by the Prophet and the same architecture adopted by him during his time?"
Sitting with Hamid were Court of Appeal President Tan Sri Abdul Malek Ahmad and Chief Judge of Sabah and Sarawak Tan Sri Steve Shim Lip Kiong.
Meanwhile, Syed Ahmad Johari, 48, claimed a moral victory despite the defeat in the courtroom.
"I feel that this is still a victory for Islam as the case managed to reach the apex court and our cause has been highlighted," he said.
Two of the appellants, Meor Atiqulrahman and Syed Abdullah Khalid Aslamy, have become hafiz, having committed the entire Quran to memory.
Thursday, 13 July 2006, 09:08
©New Straits Times (Used by permission)
By A. Hafiz Yatim
PUTRAJAYA: The country’s highest court handed down a significant decision yesterday, ruling that authorities acted within the law in stopping students from wearing turbans during school hours.
It also endorsed moves by the Government to preserve Malaysia’s multi-racial and multi-religious make-up.
Before the Federal Court was a challenge by three Muslim boys — then aged between eight and 11 — to the Education Ministry’s no-turban-with-uniform rule, which they claimed was unconstitutional. (Click here to read the full judgment)
Delivering the judgment, Federal Court Judge Datuk Abdul Hamid Mohamad wrote that Malaysians had to accept a fact about the country:
"She is multi-racial, multi-cultural, multi-lingual and multi-religious.
"By any standard, Malaysia’s success has been miraculous in terms of unity, peace and prosperity.
"Whatever other factors had contributed to it, we cannot ignore the educational system that had helped mould the minds of Malaysian boys and girls to grow up as Malaysians.
"Recently, we’ve heard about the polarisation of students in universities not only on racial and religious grounds but also among Muslim students themselves.
"The polarisation was considered serious and even a dangerous trend...
"Of course, such polarisation did not begin the moment the students stepped on campus. The seeds were sown and they grew while they were in school.
"Our educationists, with their experience in dealing with students on the ground, should be given respect and credit when they formulate regulations applicable for the general good of the students, society and nation," he said, dismissing the appeal by the three students.
The three — Meor Atiqulrahman Ishak and brothers Syed Abdullah Khaliq Aslamy Syed Ahmad Johari and Syed Ahmad Syakur — were expelled from Sekolah Kebangsaan Felda Serting in Negri Sembilan on Nov 10, 1997 for refusing to shed their turbans.
They filed a summons through their guardian and father, Syed Ahmad Johari Syed Mohamed, naming the headmistress, Fatimah Sihi, the secretary-general of the Education Ministry and the Government as respondents.
Seremban High Court judge Datuk Mohamed Noor Abdullah on Aug 6, 1999 nullified the expulsion order after ruling that the headmistress did not have the authority to expel them but the ruling was set aside with costs by the Court of Appeal on Nov 22, 2004.
They then appealed against this decision to the Federal Court.
Hamid said the issue before the court was whether or not the School Regulations 1997, which prohibit the wearing of the turban as part of the school uniform during school hours, violate the Federal Constitution.
The appellants argued that the Constitution guaranteed their right to profess and practise their religion.
"I’m of the view that whether a practice is or is not an integral part of a religion is not the only factor that should be considered," Hamid said.
The court should also consider the importance of the practice in relation to the religion, said the judge, and if the practice was of a compulsory nature or an integral part of the religion, it should be given more weight.
"Prohibition of a practice which is wajib (mandatory) should definitely be viewed more seriously than the prohibition of what is sunat (commendable)," he said.
Hamid said the second factor considered by the court was the extent of the prohibition imposed by the regulations.
"The students are not allowed to wear the turban as part of the school uniform. They are not prevented from wearing the turban at other times.
"Even in school, they would not be prevented from wearing the turban when they perform, say, their Zohor prayers in the prayer room.
"Should they be allowed to wear the jubah (robe) when playing football because it was the practice of the Prophet to wear the jubah? Certainly, there is a place for everything," he said.
Hamid said that the practice of wearing a turban was of little significance from Islam’s point of view, more so in relation to young boys.
He noted that there was no mention about the wearing of a turban in the Quran.
"I accept that the Prophet wore a turban.
"But he also rode a camel, built his house and mosque with clay walls and a roof of leaves of date palms, and brushed his teeth with the twig of a plant," Hamid said in the judgment, delivered by Federal Court Deputy Registrar Kamaruddin Kamsun.
"Does that make riding a camel a more pious deed than travelling in an aeroplane?
"Is it preferable to build houses and mosques using the same materials used by the Prophet and the same architecture adopted by him during his time?"
Sitting with Hamid were Court of Appeal President Tan Sri Abdul Malek Ahmad and Chief Judge of Sabah and Sarawak Tan Sri Steve Shim Lip Kiong.
Meanwhile, Syed Ahmad Johari, 48, claimed a moral victory despite the defeat in the courtroom.
"I feel that this is still a victory for Islam as the case managed to reach the apex court and our cause has been highlighted," he said.
Two of the appellants, Meor Atiqulrahman and Syed Abdullah Khalid Aslamy, have become hafiz, having committed the entire Quran to memory.
Tuesday, July 11, 2006
Mkini: Time for Najib, cabinet to resign & the Original Version of the article
Time for Najib, cabinet to resign
Charles Hector
Jul 11, 06 2:12pm
Deputy Prime Minister Najib Abdul Razak’s reaction to recent revelations about the sale of Malaysia Airlines (MAS) shares is pathetic, as he attempts to wash his hands and pretend to be clean.
It is shocking that he and other ministers are suddenly claiming ignorance of the previous administration’s actions and decisions. This is a serious failing.
Cabinet ministers are part of the Executive. With this comes the duty and responsibility of governing the country. They cannot claim ignorance or shift the blame to a previous prime minister or cabinet member when old scandals resurface, as is happening.
In the case of national carrier MAS, serious concerns would have been raised when it came to light that a private company paid RM8 per share, at a time when the market value was RM3.50.
Why was a private company permitted to acquire 32 percent stake in MAS? The public has a right to know, because their money is involved in bailouts or other means of financial support of government-linked companies like MAS.
The rakyat does not have access to information and facts, no thanks to the Official Secrets Act and the general lack of transparency in governance, and therefore can say they did not know.
But how can Najib, a long-time member of the Executive who holds a high position in dominant political party Umno, tell us today that he did not have any knowledge of the situation involving MAS?
What about the so-called Project M? Did Najib know about this or was he equally ignorant about these allegation that identity cards were freely issued to foreigners in Sabah?
Najib and premier Abdullah Ahmad Badawi were in the cabinet of prime minister Dr Mahathir Mohamad and so, were also responsible for all things done or not done by that government. He is just as responsible for all things done or not done by the Abdullah administration.
It was interesting to note the silence of Najib and other members of the Executive when Mahathir began asking questions. Others are also asking questions about questionable choices and deeds during Mahathir’s tenure.
Concept of responsibility
Cabinet members are not meant to be seat- warmers and pak turut (followers).
If the prime minister or cabinet has done something wrong, then ministers - as wakil rakyat - should tell the nation about this and perhaps even resign. Those who do not do so are just as guilty for all the bad decisions and deeds of the Executive.
They cannot remain in cabinet and then, when scandals and failings are exposed, claim ignorance or point an accusatory finger at this person or that.
Abdullah himself cannot now claim that he was not responsible for things done during the Mahathir era.
It is disturbing to note that Najib and other ministers, many of whom served under Mahathir, are trying to be as quiet as possible. They are not now giving the rakyat real answers, let alone telling us what little they know, in response to the legitimate concerns being raised.
An agitated Najib, when asked by journalists on July 6, said: “I don’t want to talk about it anymore; I told you whatever needs to be told. Can you understand English or not?”
I find that his attitude shocking. We want to know everything, the whole truth and nothing but the truth, not just whatever needs to be told.
Almost every day, Abdullah and/or Najib tell us this and that via the media. To the critical Malaysian, many of these are just general statements about only what they want us to know - about good things that the government has done or is doing for us Malaysians.
Nothing is said about the failings of the government, and there aren’t real or complete answers to questions most of the time.
The most important question that I want Najib to answer is why the government has failed to close the large gap between the rich and the poor, which is shamefully among the worst situations in Asia.
Explain why some national schools still do not even have electricity and toilet facilities, why there is growing unemployment, and why the fruits of development have not even reached many areas in Malaysia.
The cost of fuel and electricity has increased, while real wages, job security and quality of life have worsened.
The issues involving MAS, the crooked bridge and Proton management are really all very small in comparison to issues like distribution of wealth and resources to the rakyat.
As days go by, more failings and scandals come to light. These would never had arisen if we had a good, clean, efficient and trustworthy Executive.
I believe the time has come to get rid of those who were in the Mahathir cabinet and are now in the Abdullah cabinet. It is time to replace them with people who are truly clean, efficient and trustworthy, for the good of Malaysia.
You cannot put new wine in an old wineskin. A total revamp of Malaysia’s Executive is the solution.
* as was reported in Malaysiakini. It was amended by the publication.Original version is below.
NEW CLEAN AND TRUSTWORTHY LEADERS NEEDED - TIME FOR NAJIB & THE CABINET TO RESIGN
It is shocking that Deputy Prime Minister Najib Abdul Razak and/or any of the Ministers who were part of the executive to now suddenly turn around and claim ignorance of things done by the government during the time they were in cabinet. This is unacceptable, and is definitely a serious failing of that member of the cabinet. As a member of the cabinet, you are part of the executive in Malaysia and with this comes the full duty and responsibility of governing the country – and you cannot come back today and claim “ignorance” or just shift the blame to the then Prime Minister or some other Minister. The reaction of our Deputy Prime Minister is pathetic as he attempt to wash his hands and pretend to be ‘clean’ when such scandals of old finally come to light.
Here, we are talking about Malaysia’s national carrier, MAS, and it would have raised many serious concerns when it came to light that a private company paid RM8 per share when the market value then was RM3-50. Why was a private company permitted to acquire 32% stake in MAS? It must also be noted that all these questions and fears surfaced long ago. When it comes to MAS, the money of the ordinary Malaysian is involved - ‘bail-out’ or various other direct and indirect support.
The ordinary rakyat, who do not have access to information and facts (thanks to the Official Secrets Act and the general lack of transparency in Malaysia) can say that he did not know – but how can Najib Abdul Razak , a sitting member of the cabinet, who holds a high position in UMNO, the leading and most powerful of parties in the Barisan National, tell us frankly and honestly today that he did not have knowledge.
What about the so-called “Project M”? Did Najib know about this or was he also ignorant about this? Najib and Abdullah Ahmad Badawi were both in the cabinet of Mahathir Mohammad, and they are also responsible for all things done and not done by that government. Najib is now the Deputy Prime Minister of the present government and as such he is just as responsible for all things done and not done by this government under the premiership of Pak Lah.
It was interesting to note the silence of Najib and the other members of the executive when Mahathir started asking questions, or when others started asking questions about questionable choices and deeds that happened when Mahathir was premier. Najib and the other members of the cabinet were never meant to be just “seat warmers” and “pak turuts”. If there is something wrong done and the PM did it (or the Cabinet did it), then a sitting member of that cabinet, who is also a wakil rakyat (an elected people’s representative) should tell the nation about it and maybe even resign. If you did not do this, you are just as guilty for any and all bad deeds or decisions made by the executive.
You cannot just remain in cabinet – and then when these scandals and failings are exposed later come out now and claim ‘ignorance’, ‘no knowledge’ or just point an accusatory fingers to this Prime Minister and/or some other person.
In the same way that Abdullah Ahmad Badawi cannot say now and claim that he was not responsible for the things done during the Mahathir era, Najib too cannot escape liability for the failings during Pak Lah’s premiership or even when Mahathir was PM. In fact, it is very disturbing to note that Najib and many of the present members of the Pak Lah cabinet, many of whom were also in Mahathir’s cabinet, are trying to be as quite as possible and are not even now giving the rakyat real answers, let alone telling us what little they knew, in response to the many real questions and legitimate concerns being raised.
I am certain that the rakyat will not allow Najib and/or any other member of the Executive give us again the impression that we have a new government now because the PM is gone and a new PM is in the seat of power power. Pak Lah too was essentially just a different face to the same executive for Malaysia when he replaced Mahathir. There never was a new executive only a new PM.
“I don’t want to talk about it anymore; I told you whatever needs to be told. Can you understand English or not?” were the words used by Najib (as reported in Malaysiakini 7/7/2006), and I find that this kind of attitude is shocking. We want to know everything, the whole truth and nothing but the truth, not just “whatever needs to be told”. In fact, almost everyday in the news Pak Lah and/or Najib is out there telling us this and that – but to a critical Malaysian many of these are just general statements of only what they want us to know. It is all about the good things that the government has done or is doing for us, Malaysians. Nothing is said about the failings or the mistakes of the government. And most of the time it is never real and complete answers to questions.
The most important question things that I would want Najib to explain is the failing of the Malaysian government that resulted in the such a large gap between the rich and the poor in Malaysia, which is shamefully amongst the worst in Southeast Asia and Asia. Explain the fact why some National schools still do not even have electricity and toilet facilities, the fact that there is growing unemployment, the fact that the fruits of development have not even reached many areas in Malaysia, the fact that fuel, electricity and cost of living has increased whilst real wages, job security and quality of life has worsened. The MAS issue, the ‘crooked’ bridge issue and the Proton issues are really all very small in comparison to issues like distribution of wealth and resources to the rakyat.
As days go by, and more and more past failings and scandals come to light and would never had happened if we had a good clean efficient and trustworthy executive. I believe the time has come for the good of Malaysia for us to get rid of those who were in the Mahathir cabinet, and now in the Pak Lah Cabinet and to replace them with new people who are truly ‘clean’, ‘efficient’ and trustworthy. You cannot put new wine in an old wineskin. A complete revamp of Malaysia’s executive may be needed.
Charles Hector
7th July 2006
Thursday, July 06, 2006
COALITION AGAINST DOG SHOOTING AND OTHER INHUMANE METHODS
MEDIA STATEMENT
COALITION AGAINST DOG SHOOTING AND OTHER
INHUMANE METHODS
(CASIM)
Endorsed by
SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SPCA)
MALAYSIAN ASSOCIATION FOR RESPONSIBLE PET OWNERSHIP (MARPO)
BIVAI SPECIAL DOGS
MALAYSIAN ANIMAL-ASSISTED THERAPHY FOR THE DISABLED & ELDERLY ASSOCIATION (PETSPOSITIVE)
MALAYSIANS AGAINST DEATH PENALTY & TORTURE (MADPET)
PAWS
The Coalition believes that compliance with the city council’s by laws is paramount and that neighbours complaints should be taken into consideration. However we deplore the manner in which the operation was conducted . The tragic end to the 13 dogs lives, that were BRUTALLY shot in their homes, have angered many Malaysians and animal carers all over the world.
The whole shooting massacre, which looks like a bloody crime scene, is a HORRENDOUS, CRUEL and VIOLENT act and the Seremban Municipal should have never taken this merciless route. What if children, the disabled or the elderly were shot as they stepped in to protect the dogs and their property? Is this the way Malaysia wants to be portrayed? Are there no other more humane and non-violent solutions that the Seremban Municipal could have resorted to?
Kind and caring Malaysians have stepped forward to feed and give temporary shelter to many abandoned/stray dogs and cats in the hope of rehoming them. Cases like Mr Eng’s show that sometimes love can be misplaced and misguided.Most municipals lack the infrastructure and capacity to assist these animal carers and the problem is compounded. Municipalities should engage and assist the animal carers who regularly take these animals off their streets.
It is indeed an irony that this tragedy occurred in the Year of the Dog. We hope they did not die in vain as this sad and unfortunate incident has propelled the plight of the SILENT CRIES THAT GO LITTLE HEARD by the majority of Malaysians. Excess dogs are considered garbage and any way to clear them off the streets by any contractor that vouches to do that is employed usually with a price tag of RM 35-50 per dog head.
This coalition demands an END to this indifference and discrimination against dogs and the suffering the dogs endure and vigorously proposes the following reforms and humane options:-
A) AN IMMEDIATE BAN TO SHOOTING AND OTHER INHUMANE METHODS USED IN DOG-CATCHING
1. Other inhumane methods used are wires - where animals have been severely cut in their necks and bodies, ropes- where the dogs are almost strangled to death.
2. Dog Catchers be trained to use humane methods like nets and tranquilizers.
3. The only acceptable and humane method is lethal injection administered by a veterinarian or an authorized person supervised by him.
4. In times of resistance, a mediator be sought to diffuse the situation in a humane, effective and considerate manner. SPCA can assist in this area.
B) THE MUNICIPALITIES ADOPT A MORE EFFECTIVE AND HUMANE ORIENTED MINDSET AND ATTITUDE TO SOLVE THE PROBLEM OF DOG AND CAT OVERPOPULATION
1. Establish a Humane Shelter and Pound where animals can be kept and rehomed. This gives the residents a chance to bring in strays and abandoned animals instead of taking them into their own homes and thus creating neighbourhood problems. SPCA is able to assist in developing humane procedures and guidelines.
2. Establish a high-volume, low-cost spay neuter clinic like DBKL-SPCA Klinik Kembiri (KK) where dogs and cats are spayed at largely reduced rates of RM90 and RM50 respectively. This has been a huge success as the number of prevented dog and cat births in KL reached an unbelievable 2.7m in the 3 years since KK was established!!! (attached is the statistical evidence).This is the cheapest, smartest and most effective pro-active way to prevent over population of unwanted dogs and cats.
The Coalition is willing to embark on a working committee together with a sizable number of Municipalities to provide a wealth of knowledge, experience and expertise in solving this MAN MADE problem.
The Coalition urges all animal carers to be Responsible Pet Owners and spay and neuter their pets to prevent pet overpopulation and to be considerate neighbours as well.
6 July 2006
COALITION AGAINST DOG SHOOTING AND OTHER
INHUMANE METHODS
(CASIM)
Endorsed by
SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SPCA)
MALAYSIAN ASSOCIATION FOR RESPONSIBLE PET OWNERSHIP (MARPO)
BIVAI SPECIAL DOGS
MALAYSIAN ANIMAL-ASSISTED THERAPHY FOR THE DISABLED & ELDERLY ASSOCIATION (PETSPOSITIVE)
MALAYSIANS AGAINST DEATH PENALTY & TORTURE (MADPET)
PAWS
The Coalition believes that compliance with the city council’s by laws is paramount and that neighbours complaints should be taken into consideration. However we deplore the manner in which the operation was conducted . The tragic end to the 13 dogs lives, that were BRUTALLY shot in their homes, have angered many Malaysians and animal carers all over the world.
The whole shooting massacre, which looks like a bloody crime scene, is a HORRENDOUS, CRUEL and VIOLENT act and the Seremban Municipal should have never taken this merciless route. What if children, the disabled or the elderly were shot as they stepped in to protect the dogs and their property? Is this the way Malaysia wants to be portrayed? Are there no other more humane and non-violent solutions that the Seremban Municipal could have resorted to?
Kind and caring Malaysians have stepped forward to feed and give temporary shelter to many abandoned/stray dogs and cats in the hope of rehoming them. Cases like Mr Eng’s show that sometimes love can be misplaced and misguided.Most municipals lack the infrastructure and capacity to assist these animal carers and the problem is compounded. Municipalities should engage and assist the animal carers who regularly take these animals off their streets.
It is indeed an irony that this tragedy occurred in the Year of the Dog. We hope they did not die in vain as this sad and unfortunate incident has propelled the plight of the SILENT CRIES THAT GO LITTLE HEARD by the majority of Malaysians. Excess dogs are considered garbage and any way to clear them off the streets by any contractor that vouches to do that is employed usually with a price tag of RM 35-50 per dog head.
This coalition demands an END to this indifference and discrimination against dogs and the suffering the dogs endure and vigorously proposes the following reforms and humane options:-
A) AN IMMEDIATE BAN TO SHOOTING AND OTHER INHUMANE METHODS USED IN DOG-CATCHING
1. Other inhumane methods used are wires - where animals have been severely cut in their necks and bodies, ropes- where the dogs are almost strangled to death.
2. Dog Catchers be trained to use humane methods like nets and tranquilizers.
3. The only acceptable and humane method is lethal injection administered by a veterinarian or an authorized person supervised by him.
4. In times of resistance, a mediator be sought to diffuse the situation in a humane, effective and considerate manner. SPCA can assist in this area.
B) THE MUNICIPALITIES ADOPT A MORE EFFECTIVE AND HUMANE ORIENTED MINDSET AND ATTITUDE TO SOLVE THE PROBLEM OF DOG AND CAT OVERPOPULATION
1. Establish a Humane Shelter and Pound where animals can be kept and rehomed. This gives the residents a chance to bring in strays and abandoned animals instead of taking them into their own homes and thus creating neighbourhood problems. SPCA is able to assist in developing humane procedures and guidelines.
2. Establish a high-volume, low-cost spay neuter clinic like DBKL-SPCA Klinik Kembiri (KK) where dogs and cats are spayed at largely reduced rates of RM90 and RM50 respectively. This has been a huge success as the number of prevented dog and cat births in KL reached an unbelievable 2.7m in the 3 years since KK was established!!! (attached is the statistical evidence).This is the cheapest, smartest and most effective pro-active way to prevent over population of unwanted dogs and cats.
The Coalition is willing to embark on a working committee together with a sizable number of Municipalities to provide a wealth of knowledge, experience and expertise in solving this MAN MADE problem.
The Coalition urges all animal carers to be Responsible Pet Owners and spay and neuter their pets to prevent pet overpopulation and to be considerate neighbours as well.
6 July 2006
Wednesday, July 05, 2006
MADPET: MALAYSIA BLINDLY ACCEPTS MYTHS PROPAGATED BY DEATH PENALTY RETENTIONISTS
MADPET (Malaysians Against Death Penalty and Torture) is disappointed by the unsubstantiated and false statement made by Datuk M. Kayveas, a Deputy Minister in the Prime Minister's Department when he told Parliament that the death penalty deters serious crimes. This statement, as was reported by Bernama on 28/6/2006, is baseless and cannot be justified by any facts or statistical proof.
On the other hand, there are studies conducted throughout the world over the past seventy years using various different methodological approaches have failed to find convincing evidence that capital punishment is a more effective deterrent of crime than long-term imprisonment.
Studies conducted in Australia show that abolition of the death penalty had no effect on the homicide rate and in Canada there in fact was a sharp decline in the homicide rate after abolition;
In the United States over the past twenty years, states with the death penalty in general have had a higher homicide rate than states without the death penalty;
The Minister also went on to say that there will be no abolition of the death penalty as it “safeguards public interest”. Surely sending someone to death, especially when there is the real possibility that an innocent man can be killed is against the public interest.
He is further reported to have said that "There are enough safeguards in the country's judicial system to ensure that death sentences are not meted out easily,"
What safeguards is the Honourable Deputy Minister speaking of? In Malaysia there is no immediate access to a lawyer upon arrest, immediate right to a phone call and no right to full pre-trial disclosure.
Evidence, reports, statements and witnesses obtained during police investigations that may support the accused story or bring to light possible defences to the accused will most likely be suppressed as prosecution officers are only interested in prosecuting. Most jurisdictions in the Commonwealth and elsewhere have made it mandatory for immediate full disclosure to the accused person.
It must be reiterated that even in jurisdictions where all these safeguards exist, the number of persons wrongfully condemned to death have been frighteningly high. Human justice is dangerously fallible, and the only acceptable choice for any civilized nation is to abolish the death penalty.
The fact that a person has the right to appeal to the Court of Appeal and then the Federal Court, and thereafter to the Pardons Board for clemency is grossly insufficient to justify the keeping of the Death Penalty in our law books. It is laughable that the Deputy Minister even suggested, at this day and time in Malaysia, that thorough investigations carried out by an experienced and effective police force is yet another safeguard to prevent miscarriage of justice.
In June 2006 President Gloria Macapagal Arroyo signed a law abolishing the death penalty in the Philippines. The number of countries that have done away with the Death Penalty now stands at 123. The worldwide trend has been towards abolition of the death penalty.
The Malaysian government ought to have conducted a thorough study on the effectiveness or ineffectiveness of the death penalty as a deterent to serious crime before having a Deputy Minister, who is a lawyer, stand up in Paliament and attempt to turn a myth into an empirical truth.
A recent television poll done by RTM 2 during the Hello on Two programme on 7/5/2006 showed that 64% of Malaysians are for the abolition of the death penalty in Malaysia.
Further, the Malaysian Bar, which comprises about 12,000 lawyers, is also calling for the abolition of the death penalty.
MADPET calls for an immediate moratorium on all executions pending abolition, and the abolition of the death penalty in Malaysia.
N. Surendran
Charles Hector
for Malaysians Against Death Penalty and Torture (MADPET)
4th July 2006
On the other hand, there are studies conducted throughout the world over the past seventy years using various different methodological approaches have failed to find convincing evidence that capital punishment is a more effective deterrent of crime than long-term imprisonment.
Studies conducted in Australia show that abolition of the death penalty had no effect on the homicide rate and in Canada there in fact was a sharp decline in the homicide rate after abolition;
In the United States over the past twenty years, states with the death penalty in general have had a higher homicide rate than states without the death penalty;
The Minister also went on to say that there will be no abolition of the death penalty as it “safeguards public interest”. Surely sending someone to death, especially when there is the real possibility that an innocent man can be killed is against the public interest.
He is further reported to have said that "There are enough safeguards in the country's judicial system to ensure that death sentences are not meted out easily,"
What safeguards is the Honourable Deputy Minister speaking of? In Malaysia there is no immediate access to a lawyer upon arrest, immediate right to a phone call and no right to full pre-trial disclosure.
Evidence, reports, statements and witnesses obtained during police investigations that may support the accused story or bring to light possible defences to the accused will most likely be suppressed as prosecution officers are only interested in prosecuting. Most jurisdictions in the Commonwealth and elsewhere have made it mandatory for immediate full disclosure to the accused person.
It must be reiterated that even in jurisdictions where all these safeguards exist, the number of persons wrongfully condemned to death have been frighteningly high. Human justice is dangerously fallible, and the only acceptable choice for any civilized nation is to abolish the death penalty.
The fact that a person has the right to appeal to the Court of Appeal and then the Federal Court, and thereafter to the Pardons Board for clemency is grossly insufficient to justify the keeping of the Death Penalty in our law books. It is laughable that the Deputy Minister even suggested, at this day and time in Malaysia, that thorough investigations carried out by an experienced and effective police force is yet another safeguard to prevent miscarriage of justice.
In June 2006 President Gloria Macapagal Arroyo signed a law abolishing the death penalty in the Philippines. The number of countries that have done away with the Death Penalty now stands at 123. The worldwide trend has been towards abolition of the death penalty.
The Malaysian government ought to have conducted a thorough study on the effectiveness or ineffectiveness of the death penalty as a deterent to serious crime before having a Deputy Minister, who is a lawyer, stand up in Paliament and attempt to turn a myth into an empirical truth.
A recent television poll done by RTM 2 during the Hello on Two programme on 7/5/2006 showed that 64% of Malaysians are for the abolition of the death penalty in Malaysia.
Further, the Malaysian Bar, which comprises about 12,000 lawyers, is also calling for the abolition of the death penalty.
MADPET calls for an immediate moratorium on all executions pending abolition, and the abolition of the death penalty in Malaysia.
N. Surendran
Charles Hector
for Malaysians Against Death Penalty and Torture (MADPET)
4th July 2006
