Legal Talk

Unilateral Child Conversions

Mr K J John wrote an excellent piece on the Indira Gandhi case and his article inspired me to offer a legal perspective on the controversial issue of unilateral child conversions

So what does the supreme law of our land say about the religion of a child and how it is determined? Article 12(3) of the Federal Constitution expressly provides that “no person shall be required to take part in any ceremony or act of worship of a religion other than his own

The Constitution then goes on to say that for the purposes of Article 12(3), the religion of persons below the age of eighteen years shall be decided by his parent or guardian [Article 12(4)]

In reading Clause (3) in light of Clause (4), this is the long and short of it:

a) The religion of a child (i.e. a person below eighteen years old) will be determined by his/her parent or guardian [note the use of the nouns in a singular form]

b) Once the parent or guardian has determined the child’s religion, the child will have the right not to be forced to take part in any ceremony or act of worship of another religion

Upon literal inspection of the aforementioned provisions, one may come to the conclusion that the Federal Constitution permits unilateral conversion of a child’s religion

However, statutes are not only to be interpreted literally as the “English language is not an instrument of mathematical precision” (as per Lord Denning in Seaford Court Estates Ltd v Asher)

Judges have a broad arsenal of rules of construction to choose from. A particular provision can be interpreted using the golden rule, the mischief rule, the purposive approach, etc

The golden rule allows a judge to depart from the ordinary meaning of a word and modify it if adhering to the literal sense of a word would lead to a “manifest absurdity or repugnance” (Lord Wensleydale in Becke v Smith)

A practical application of the golden rule could involve construing that although the singular noun “parent” was used, it should actually mean both the parents of a child (the manifest absurdity or repugnance being the ability of one parent to unilaterally convert his/her child/children)

The purposive approach would involve the Judiciary looking at the intention of the Legislature for enacting the particular provision and for using particular word(s) before determining how the provision/word should be interpreted

In respect of the Federal Constitution, the Reid Commission’s 1957 report as well as the transcript of the debates of the Federal Legislative Council (the predecessors of the Malaysian Parliament who were responsible for the debate and passing of the Federal Constitition) are documents of extreme importance in ascertaining the Legislature’s intentions

Simply put, if our Malaysian judges were bold enough to render the single noun “parent” to include both parents, they would be able to circumvent the entire issue of unilateral child conversions

If a child cannot be converted by only one parent, the conversion of Indira Gandhi’s children (and the many other children unilaterally converted) would be void ab initio (i.e. from the beginning), thus there would not be the quandary of whether the Syariah court or Civil court has jurisdiction over the matter

However, in all honesty, if the judges did so, some groups (legal experts included) might render their actions as too extreme

The panacea would be for Parliament to amend the Federal Constitution to limit child conversions to both parents (save in exceptional circumstances, e.g. one of the parents absconded, one of the parents is dead)

In 2009, the Cabinet decided that in the event of any dispute, a child must be raised in the faith professed by both parents at the time of marriage (hence impliedly denouncing unilateral child conversions)

However, the Executive branch’s reassurance is good-for-nothing, as the fact of the matter is, the Federal Constitution, when applied literally, appears to provide for unilateral child conversions

So instead of dishing out false assurances, the Executive (who also has the majority of seats in the Legislature), should push for Article 12(4) to be ammended in light of their 2009 Cabinet decision (if indeed it is still their stance today)

*This article also appeared in Free Malaysia Today, The Malaysian Insider, Malaysiakini

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Self Defence & Mohamad Zulkifli

It appears that Malaysians are up in arms about the fact that Mohamad Zulkifli Ismail, who allegedly stabbed two men who were trying to rob him at his house, was charged under Section 302 of the Penal Code for murder and under Section 326 of the Penal Code for causing grevious bodily harm.

What many do not know is that what happened to Mohamad Zulkifli is quite normative. In most cases where prima facie, there appears to be legal defences available, the defences are pleaded by the defendant whilst he/she is on trial (the exception being where there are no criminal proceedings initiated as the Attorney General exercised his discretionary power to not institute prosecution)

For the sake of parallelism, the common law defence of automatism will be examined. This defence is pleaded when the wrongful act was done “by the muscles without any control by the mind” (as per Lord Denning in Bratty v A-G of Northern Ireland)

The defendant’s lack of physical control over his/her conduct renders the conduct involuntary and “no act is punishable if it is done involuntarily” (Lord Denning in Bratty v A-G of Northern Ireland)

Thus, even in a situation where automatism appears to be a part of the facts of the case, generally, the defendant will still be charged with an offence, plead not guilty, proceed to trial, and then attempt to prove the defence

As for the defence of self defence, the statutory provisions governing it can be found in Sections 96-106 of the Penal Code. The ones relevant to Mohamad Zulkifli will be delved into below

Section 96 of the Penal Code

“Nothing is an offence which is done in the exercise of the right of private defence”

The provision would clearly absolve Mohamad Zulkifli of liability if it can be proven that he was merely exercising his right of private defence

However, the Inspector General of Police was right to say that “it is not an absolute right to kill someone who tries to rob us”

The right to private defence is very much subject to other provisions, of which we will consider accordingly

Section 97 of the Penal Code

“Every person has the right, subject to the restrictions contained in section 99, to defend – … the property … against any act which is an offence falling under the definition of … robbery …”

Based on the minimal facts we are aware of, it is apparent that section 97 would further support Mohamad Zulkifili’s case as he was protecting his house in Kampung Labohan, in Kerteh, Terengganu, from two robbers

Section 103 of the Penal Code

“The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence … occasions the exercise of the right, be an offence of … robbery …”

Section 103 is merely an extension of Section 97. In Mohamad Zulkifli’s case, his exercise of his right of private defence lead to the voluntary causing of death of the two robbers, hence, it is submitted that section 103 is the more appropriate provision to be relied upon

Section 99 of the Penal Code

This section lists out acts against which there is no right of private defence. The fourth act is the only one which bears any potential relevance to the facts of Mohamad Zulkfili’s case

“The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence”

This is basically an issue of proportionality. Was Mohamad Zulkifli’s exercise of his right of private defence proportional to the need to defend his property from the two robbers?

A-G’s Reference (No.2 of 1983) established that the degree of force deemed reasonable varies according to the nature and degree of the threat. Regrettably, the question cannot be answered conclusively due to the lack of facts available at the time of writing

However, as a matter of principle, if the answer to the question of proportionality is in the negative, it would mean that Mohamad Zulkifli would have no right of private defence

The people need to let the law take its due course. However, the people also need to keep an eye out on how Mohamad Zulkifli’s case progresses and it is hoped that the continuous public attention associated to the case will prevent there being a miscarriage of justice

*This article was featured in Malaysiakini, The Malaysian Insider, The Rakyat Post, Malaysia Today

Penal Code Pun Boleh!

This article is in response to the recent protest outside a church in Taman Medan, Selangor

The Inspector General of Police’s brother (who was present at the protest), was quoted as saying that “the residents [of Taman Medan] just panicked after seeing the cross. They were uncomfortable and sensitive.”

“Some of them complained that the first thing they saw when they opened their windows was the cross.”

As a result of their “uncomfortableness”, a group of about 50 people decided to protest in front of the church, demanding that its leaders “remove the cross symbol on the outside of its shop lot premises”

It was then reported that the cross was taken down by church leaders a few hours after the protest

The ever impartial Inspector General of Police remarked that the protest was not seditious as “it did not touch on Christianity but only on the location of the church”

Is the whole issue truly on the location of the church as claimed by the IGP, or was it about the cross “affixed to the house of worship”?

It is widely reported that the protest was to get the church to remove the cross which was allegedly “challenging Islam” as well as “could sway the faith of the youth”

Clearly the issue is not about the location of the church, but about the presence of the cross. So, is the IGP trying to justify the unjustifiable? Or was he misinformed of the purpose of the entire protest?

The entire incident can easily be construed to fall under the ambit of Section 3(1)(a) of the Sedition Act 1948. The particular provision defines a seditious tendency as a tendency to promote feelings of ill-will and hostility between different races or classes of the population of Malaysia

Any reasonable person would be able to come to the conclusion that the entire protest AT LEAST had the tendency (a very low standard) to promote feelings of ill-will and hostility between the Muslims and the Christians

However, one need not rely on the Sedition Act as the Penal Code, specifically section 298A(1) makes it an offence if an action

(a) causes/attempts to cause/is likely to cause disharmony, disunity or feelings of enmity, hatred or ill-will, or

(b) prejudices/attempts to prejudice/is likely to prejudice the maintenance of harmony or unity

on grounds of religion

It is hard to see how our present facts does not satisfy the wordings of the above section. Similar to the Sedition Act, “likely to cause” and “likely to prejudice” imposes a very low standard to be satisfied

So dear IGP, you need not trouble yourself and even consider the controversial Sedition Act. You have the Penal Code at your disposal!

Whether or not the protesters should be charged in a court of law, is a task for the Attorney General. Whether it actually amounts to an offence, is for the Judiciary to decide. Considering the public interest in this case, it at least warrants an investigation on the part of the police force

*This article appeared in The Malaysian Insider, The Malay Mail Online and Free Malaysia Today

Developing A Litigation Culture

Malaysian Prime Minister, Datuk Seri Najib Razak, through his lawyers has issued a letter of demand to PKR’s Rafizi Ramli and DAP’s Tony Pua over a few things the outspoken duo have said in recent times 

Our premier wants Tony Pua to publish a retraction and apologise within 14 days in two national newspapers, or face legal action for his speech recorded in the November 3 video: “Tony Pua: Najib is creating the biggest scandal ever in the history of Malaysia

Failure by Rafizi and/or Tony Pua to act as per the letter of demand would most definitely result in legal action being initiated against them

Some netizens take this as a sign of cowardice on the part of Najib because it comes across as an act to scare off his detractors. I, however, think it is a good thing that Najib wants the courts to adjudicate what has been said by the two Pakatan Rakyat leaders regarding the reduction of fuel subsidies and the 1Malaysia Development Berhad (1MDB) respectively

I say so because if the issue reaches the courts, evidence will be have to be submitted by both parties. Through that and the court’s ruling, the people can ascertain objectively who is actually correct/telling the truth.

Does the money saved from the reduction of petrol subsidies go into Najib or Rosmah’s pocket? We will most assuredly find out. Regarding 1MDB, is there any hanky-panky use of the people’s money? We will undoubtedly find out

If Mrs Donoghue did not sue the manufacturing company of the ginger beer after finding a decomposed snail in her drink we would not have the landmark case of Donoghue v Stevenson

In that case, Lord Atkin established the all important ‘neighbour principle’ and it revolutionised the tort of negligence as we know it today.

This shows us that case law is an important contributor to the development of the law as it ensures that the law stays relevant in light of changing social, economic and cultural conditions

Moving on, the freedom of speech does not include the right to defame a person. Therefore, if Rafizi has no evidence to support his claim that Najib or Rosmah would directly/indirectly benefit monetary wise from the reduction of fuel subsidies, he should be liable for defamation

In Tony Pua’s case, he gave some immensely mind boggling statistics. However, if he does not have any solid admissible evidence to back his allegations about 1MDB, he would have to fork out a lot of money to compensate Najib for the “tremendous stress and embarrassment” caused

If Najib wins his lawsuit(s) against Rafizi and/or Tony Pua, the enormous amount of damages usually awarded in defamation cases should act as a precedent to teach our leaders to speak only when they have proof to attest to their claim.

If our public figures do not learn that lesson, we’d have more and more Mashitah cases whereby the irresponsible person speaks unsubstantiatedly and then gets whacked left, right and centre (metaphorically) by the public

In conclusion, while Dr Mahathir is of the opinion that taking legal action for political slander is useless, i beg to differ for the aforementioned reasons. The way I see it, litigation over controversial issues would be beneficial for the common folk who ardently follow our nation’s politics. Developing a litigation culture is good to a certain extent

*Check this awesome article out at The Malaysian Insider, The Malay Mail Online, and Free Malaysia Today

Bibles and Selangor

Many of us would like to express our gratitude to Selangor MB, Azmin Ali for orchestrating the return of the Malay and Iban language bibles which were seized by the Selangor Islamic Religious Department (JAIS) in January 2014

Under the Ninth Schedule of the Federal Constitution (which contains the legislative lists), religion is under the purview of the state

As per Frank Murphy (former US Supreme Court judge), “religious freedom is too sacred a right to be restricted or prohibited in any degree without convincing proof that a legitimate interest of the state is in grave danger”

Although religious issues are under the scope of the state, it is trite law that state enactments cannot contradict the Federal Constitution which is the ultimate law of the land.

Prima facie, the Non-Islamic Religions (Control of Propagation among Muslims) Enactment 1988 is constitutional as it is made as per Article 11(4) Federal Constitution which allows for laws to be made to control or restrict the propogation of any religious doctrine or belief among persons professing the religion of Islam

Under section 9(1)(a) of the Non-Islamic Religions (Control of Propagation among Muslims) Enactment 1988,

a person commits an offence if he in any published writing uses any of the words listed in Part I of the Schedule, or any of its derivatives or variations, to express or describe any fact, belief, idea, concept, act, activity, matter, or thing of or pertaining to any non-Islamic religion

At first glance it appears as though as the Malay and Iban bibles breached s. 9(1)(a) by virtue of containing “Allah.” However, there shouldn’t be an offence under the enactment for the following reasons

Firstly, there is no proof of propogation because the bibles were taken from the Bible Society of Malaysia (BSM)’s premises. At most, JAIS can say they acted under suspicion, but whether their suspicion is reasonable is a different story

Then BSM president, Lee Min Choon, pointed out that all its Malay bibles were imprinted with a picture of the cross and the words ‘Penerbitan Kristian’ on the cover and noted that the Home Ministry regularly inspects its bible shipment imports .

This is a huge sacrifice on the part of BSM to abide by the law in order to ensure that its customers may have access to Malay bibles

As to why the bibles are in our national language, “more than 60 per cent of Malaysian Christians only speak Bahasa Malaysia, and the word used for God in the Bahasa Malaysia Bible (Al-Kitab) since its translation in 1731, is “Allah.”

“The word is used by Bumiputera Christians who only have Bahasa Malaysia as their common language in Sabah, Sarawak and peninsular Malaysia, and by the Baba community in Malacca” (Christian Federation of Malaysia)

Regarding why the Bibles are in Selangor and not in Sabah and Sarawak, it is important to note that BSM is the one that imports, prints and distributes Malay bibles to Sarawak and Sabah (as per Nic Ng, BSM’s executive council member). Perhaps the bibles were in storage awaiting importation?

Even if some of the bibles were not to be imported, it shouldn’t be an issue that the bibles are in Selangor because there are Malay speaking Christians in peninsula Malaysia (e.g. sabahans and sarawakians who come over looking for jobs)

If Malay language bibles aren’t allowed in Selangor, it would most definitely infringe on the right of the Malay speaking Christians to freely practice their religion (enshrined in Article 11 of the Federal Constitution)

In June, after much investigation and deliberation, the Attorney-General (AG) accurately concluded that JAIS erred in seizing the bibles and ordered for the case to be closed.

US Politician, Mike Quigley once wisely said that the “protection of religious freedom means considering the faiths and beliefs of everyone involved.”

In future, JAIS and other religious enforcement agencies should not be so overzealous, especially when dealing with holy books of other religions. Perhaps a more thorough investigation (which would have made the raid unnecessary) could have prevented this dark dent in our history

Even if the roles were reversed and Qur’ans were superfluously seized, right thinking Malaysians would stand up and speak out against the blatant infringement of the freedom of religion!

*This awesome article featured in The Malaysian Insider, Malaysiakini, Malaysia Chronicle, and The Malay Mail Online

Analysing The Prosecution’s Reply

Today (31st October 2014) concludes day one of the highly anticipated reply by the prosecution to the many things that were brought up by Datuk Seri Anwar Ibrahim’s defence team. 

I have to be honest that as an objective person following the Sodomy II trial, I am disappointed by Tan Sri Shafee Abdullah’s performance.

I was sincerely hoping that he would bring his A game and rebut with facts every point the defence submitted. Shouldn’t he be darn good at what he does considering the Attorney General overlooked all the DPP’s under his charge?

Regarding Anwar’s alleged alibi witness, Shafee questioned why the witnesses would be scared of the police when the police only wanted to interview them. Seems like a valid question

However, years ago, in an unsworn statement from the dock, Anwar claimed that “Haji Hasanuddin bin Abd Hamid, had been harassed by the police for a total of thirty hours in the recording of his statements which were all video recorded.”

Solving this problem wouldn’t require one to be a rocket scientist. A simple review of the videos from the interrogation would allow the courts to see whether or not Anwar’s allegation about the witness being harassed is baseless

Another thing I failed to comprehend is how the defence never filed for a subpoena to compel Haji Hasanuddin to appear before the courts. Considering his ownership of the unit where the alleged sodomy took place, and the possibility that he could provide Anwar with an alibi, what he has to say is imperative

Tan Sri Shafee Abdullah failed to address the issue of the meeting between Saiful and Datuk Seri Najib, as well as two other police officers prior to the alleged sodomy. Najib admitted to meeting Saiful for about an hour at his residence

It’s legally not wrong to meet up with high ranking officials. However, it’s a bit fishy considering that Saiful was Anwar’s former aide, and Najib was on the side of the political divide.

What’s even more odd is that the meeting concerned scholarships yet was held at Najib’s private residence. The fact that Shafee did not thoroughly address this meant that the door on the likelihood of Anwar’s political conspiracy theory remained open

Moreover, Shafee in his rebuttal, questioned how investigating officer Jude Pereira would have had access to fresh semen samples if indeed the latter had tampered with the evidence. This is a well thought out point, but is still subject to Anwar’s political conspiracy theory which was not refuted

If indeed there was a conspiracy to end Anwar’s political career, it wouldn’t be surprising that Anwar’s semen was found on an underwear not worn by Saiful on the day of the alleged sodomy. Powerful people can make things appear or even make them go away

Supt. Jude Pereira placed the DNA evidence in a steel cabinet instead of in proper refrigeration facilities (fact). On top of the DNA evidence being retrieved after 36 hours of the alleged sexual assault taking place (fact), it was also left open to degradation

Just because Jude Pereira mitigated the mistake by turning on the office air conditioner to keep the samples cool, this doesn’t negate the fact that negligence has occured. Pereira’s blatant failure to perform his duty could very well have affected the credibility and admissibility of the DNA evidence

Shafee’s reply to the lack of evidence regarding the use of the K-Y Jelly is laughable. The lead prosecutor held that there was no carpet stain because the jelly could’ve been spilled on a towel instead

Why is this possibility in contradiction with Saiful’s testimony that some of the jelly spilled onto the carpet? Where is this mysterious towel Shafee speaks of? How come it wasn’t admitted as evidence to support the claim that the controversial K-Y Jelly was used during the alleged sodomy?

Moving on, Shafee brought up the possibility that Anwar and Saiful had a “relationship” as the latter was given allowances and perks during his tenure as Anwar’s aide.

Shafee’s primary justification was that Saiful was a school dropout yet was able to afford expensive suits, was given generous allowances, and was sent on overseas trips

Citing Saiful’s testimony, Shafee said the former aide to the opposition leader earned a basic salary of RM1,000 but was given US$1,000 as allowance for a trip to Singapore and HK$1,000 dollars when he was sent there

Objectively speaking, the amounts mentioned aren’t exorbitant, though it is worth taking note of. Isn’t it completely normal for employees to be given allowances when they are sent on overseas trips? Some company trips are even completely sponsored!

Does this imply that the supervisor/manager has a relationship with the particular employee? Not in most circumstances! Anwar just needs to satisfactorily justify why the allowances were given and it will no longer be an issue

Next, Shafee attempted to reconcile the inconsistency in Saiful’s testimony regarding the duration of the alleged sexual assault. During the trial, Saiful said that the alleged sodomy lasted for five minutes. However, initially, Saiful mentioned that it was for thirty minutes

Today, Shafee told the court that the 30 minutes included the time to take a shower. Am I the only one who thinks this is ludicrous? Why would anyone include the time taken to take a bathe when asked about how long he/she was sodomised?

A mind-bloggling question I struggled with since the beginning is why Anwar never testified from the witness stand where he can be cross examined? If he was truly innocent, it wouldn’t be an issue to testify under oath right?

After all, this trial is a matter of life and death (metaphorically speaking) for Anwar. Being sent to jail would signal the end of his political career and possibly the demise of Pakatan Rakyat

So many unanswered questions remain. It is no surprise that the Sodomy II trial is a highly controversial one! I look forward to round two of the prosecution’s submissions.

*Read this amazing article at The Malaysian Insider

Proving Beyond Reasonable Doubt

In light of the ongoing Sodomy II trial, the following are some basics of the criminal justice system that we should be informed or even reminded of

(i) It is the job of prosecution to prove that the accused committed the offence. This is in line with the legal maxim semper necessitas probandi incumbit ei qui agit (translated: “the necessity of proof always lies with the person who lays charges”)

(ii) The defence merely needs to raise certain discrepancies regarding the case, and the accused would be acquitted, provided the court is satisfied that otherwise, the conviction would be an unsafe one

(iii) The prosecution needs to prove beyond reasonable doubt that the accused committed the offence. It is a higher burden of proof than that of civil law (i.e. on the balance of probabilities) because the liberty of the accused is at stake (in Anwar’s case, five years imprisonment or more)

Datuk Seri Anwar Ibrahim’s defence team led by former Federal Court judge, Datuk Seri Gopal Sri Ram started off well. They raised a myriad of questionable issues, thus casting a lot of doubt in the prosecution’s case

The first concerned Anwar’s alleged alibi. Sri Ram said that the defence did not pursue the alibi because the police had intimidated the main alibi witness, who is the owner of the condominium.

If indeed the accusation is true, it would further mar the already damaged reputation of our police force as such scare tactics would prevent Anwar from getting a fair trial (contrary to Article 10 of the Universal Declaration of Human Rights of which Malaysia is a signatory but has yet to ratify)

Secondly, there was no evidence of sexual penetration. This claim by Sri Ram was based on medical reports. If it can be conclusively proven that there was an absence of sexual penetration in the anus, there can be no sodomy.

However, the testimonies of expert witnesses tend to contradict one other, thus the difficulty in reach an absolute conclusion whether or not there was in fact sexual penetration

Next is regarding the lubricant. It was not mentioned in the police report made by Saiful and popped up for the first time during the trial. Perhaps Saiful forgot to mention it because he was traumatized?

Oddly enough, the lubricant was not on list of exhibits during trial and was even mishandled by the investigating officer who gave it back to Saiful instead of keeping it as evidence. Considering the controversy surrounding the lubricant, I am of the opinion that the lubricant shouldn’t be taken into account

Saiful’s credibility is undoubtedly questionable. He insisted that during the ordeal, some K-Y Jelly spilled onto the carpet. However, the police investigation revealed that no stain was found on the carpet. There’s clearly an inconsistency in his testimony

Besides that, Sri Ram pointed out the ridiculousness in which the underwear Saiful wore was washed but the latter’s anus was left untouched, hence preserving the DNA evidence. On top of that, Anwar’s semen was found on underwear not worn on the day of the alleged sodomy. I’m no conspiracy theorist but the possibility of the evidence being planted exists

Moreover, it was alleged that Saiful met with Najib and other police officials two days prior to the sodomy complaint. If indeed such a thing happened, even a reasonable man would wonder if something fishy is going on.

Moving on, let us consider the photograph of Saiful at Anwar’s house. The picture was taken a day after the alleged sodomy whereby Saiful and Anwar met up for a discussion and tea session. Which mad person would hang out the next day with the very person who unconsentually sodomised him?

Since Saiful admitted to being there, there is no question that the photograph was doctored or anything of that sort. Ergo, it is material evidence which should be admitted as it could very well affect the outcome of the case

It is interesting to see what prosecutor Datuk Seri Muhd Shafee Abdullah has up his sleeve. He will have to bring his A-game if he doesn’t want Anwar to walk out a free man at the end of this trial

The Federal Court needs to be constantly reminded that it is a court of law, and NOT a court of politics. Therefore, any political influence should be tossed aside. The courts are to decide without fear or favour!

According to Lord Hewart in R v Sussex Justices, ex parte McCarthy, “it [… ] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Therefore, the highest court of our land should only uphold conviction if and only if the prosecution successfully proves beyond reasonable doubt that Anwar sodomised his former aide, Mohd Saiful

* This awesome article also appeared at The Malaysian Insider, Malaysia-Today, and Malaysiakini